Edinburgh, March 18. 1684.  
IT is ordered by the Lords of His Majesty's most honourable Privy Council, That none shall Re-Print, or Import into this Kingdom, the Book intitutled, The Institutions of the Laws of SCOTLAND; by Sir George Mackenzie of Rosehaugh, His Majesty's Advocate, for the space of nineteen years, after the date hereof, without the consent of the Author; under the pain of confiscation of the whole Copies to John Reid Printer of the said Book. Extracted by me  
Pat. Menzies, Cls. Sti. Cli.   

THE INSTITUTIONS OF THE LAW OF SCOTLAND  
By Sir George Mackenzie, of Rosehaugh, His MAJESTY'S Advocate.  
EDINBURGH, Printed by john Reid, Anno DOM. M DC LXXXIV.   

To the Earl of MIDDLETON,  
My Lord,  
THE Natural way of Learning all Arts and Sciences, is to know, First, the Terms used in them, and the Principles upon which they are founded, with the Origins of the one, and the Reasons of the other. A Collection of these Terms and Principles is in Law called, Institutions; and the Natural and Easy way of Writing these, is by going from the first Principle to a second, and from that to a third: The admired Method of Euclid in his Elements, though much neglected by all, who have written Institutions of Law; in which, not only many things unnecessary are insert, as almost all the third book of Justinians Institutions; the Differences betwixt the Sabiniani and Proculiani, etc. Many Fundamental Titles are ommitted, as all the matter of Restitutions: And many things are taught in the first Book, which cannot be understood till the fourth be read.  
I have therefore in these my Institutions treated nothing save Terms, and Principles, leaving out nothing that is necessary, and inserting nothing that is controverted; in all which I have proceeded, building always one Principle upon another; and expressing every thing in the Terms of the Civil Law, or in the Style of Ours respectively; so that if any Man understand fully this Little Book; Natural Reason, and Thinking, will easily supply much of what is diffused, through our many Volumes of Treatises, and Decisions; Whereas the studying those, would not in many years give a true Idea of our Law; and does rather distract than instruct. And I have often observed, that more Lawyers are ignorant for not understanding the first Principles, than for not having read many Books; as it is not the having traveled long, but the having known the way, which brings a man to his Lodging soon, and securely.  
My Lord, You observed very justly to me, that Institutions are a Grammar; and therefore, (which is a great encouragement to all Readers of Institutions,) they who understand the Institutions of any one Nation, will soon learn the Law of any other: For though Terms, Forms, and Customs differ; yet the great Principles of justice and Equity are the same in all Nations. I send mine therefore to your Lordship, not because you need them, but that you may judge, if my Institutions, will be able to justify your parallel.  
Nec Phoebo gratior ulla est, Quam sibi quae Vari praescripsit pagina Nomen.   

The INDEX of the TITLES.  

PART I.  
Title I. OF Laws in General Page 1  
Title II. Of jurisdictions, and judges in general Page 9  
Title III. Of the Supreme judges, and Courts of Scotland Page 17  
Title IV. Of inferior jurisdictions and Courts Page 27  
Title V. Of Ecclesiastic Persons Page 33  
Title VI Of Marriage Page 46  
Title VII. Of Minors, and their Tutors and Curators Page 47   

PART II.  
Title I. OF the Division of Rights, and the several ways of acquiring Property and Dominion Page 74  
Title II. Of the difference betwixt Heritable, and Movable Rights Page 83  
Title III. Of the Constitution of Heritable Rights, by Charter and Season Page 92  
Title IV. Of the several kinds of Holding  
Title V. Of the Casualties due to the Superior Page 108  
Title VI Of the Right which the Vassal acquires by getting the Feu Page 13●  
Title VII Of Transmission of Rights by Confirmation, and of the difference betwixt Base and Public Infeftments Page 14●  
Title VIII. Of Redeemable Rights Page 15●  
Title IX. Of Servitudes Page 16●  
Title X. Of ●eynds Page 18●  
Title XI. Of Inhibitions' Page 19●  
Title XII. Of comprisings and Adjudications Page 20●   

PART III.  
Title I. OF Obligations and Contracts in general Page 217  
Title II. Of Obligations by Write, or Word Page 228  
Title III. Of Obligations and Contracts, arising from Consent, and of accessary Obligations Page 232  
Title IV. Of the Dissolution or Extension of Obligations Page 255  
Title V. Of Assignations Page 261  
Title V. Of Arr●stments and Poi●●ings Page 265  
Title VI Of Prescriptions Page 275  
Title VII. Of Succession in Heritable Rights Page 282  
Title VIII. Of Succession in Movables Page 323  
Title IX. Of ●●st Heir and Bastard's Page 330   

PART IU.  
Title I. OF Actions Page 334  
Title II. Of Probation Page 362  
Title III. Of Sentences and their Execution Page 368  
Title IV. Of Crimes Page 375    

THE INSTITUTIONS Of the Law of SCOTLAND.  

FIRST PART.  

Tit. I. Of Laws in General.  
JUSTICE, is a constant and perpetual Will, and Inclination to give every Man what is due to him.  
LAW, is the Science which teacheth us to do Justice.  
This Law, in a large acceptation, is divided, In the Law of Nature, Law of Nations, and the Civil, and Municipal Law of each particular Country.  
The Law of Nature comprehends those Dictates, which Nature hath taught all living creatures, instances whereof are Self Defence, Education of Children: and generally, all those common principles, which are common to Man, and beasts, and this is rather innate instinct, than positive Law.  
The Law of Nations, is peculiar to Mankind only, dictated by right Reason, and is divided into the Original and primary Law of Nature, that flows from the first and purest principles of right Reason; Such as Reverence to GOD, respect to our Country, and Parents. And the secundary, and consequential Law of Nature, consisting of these general conclusions, in which ordinarily all Nations agree, and which they draw by way of necessary consequence, from those first principles. And under this part of the Law of Nations, are comprehended, the Obligations arising from promises, or contracts, The liberties of Commerce, the ransoming of Prisoners, security of Ambassadors, and the like.  
Civil, or Municipal Law, are the particular Laws, and Customs of every Nation, or people, who are under one Sovereign Power.  
The Romans, having studied with great exactness, the principles of Equity, and justice.. Their Emperor justinian, did cause digest all their Laws into one body, which is nowcalled by most polit Nations, (for its Excellency) the Civil Law; And as this Civil Law is much respected generally, so it has great influence in Scotland, except where Our own express Laws, or Customs, have receded from 
* K. J. 6 Par. 8. Act ●31  it. And by the common Law in our Acts of Parliament is meant the 
* K. Ja. 4. Par. 4. Act 51. K. Jam. 5. Par. 6 Act 80. ●. Marry Par. 5. Act 22. K, Ja. 6 Par. 1. Act 31.  Civil Law.  
The Popes of Rome, in Imitation of the Civil Law, made a body of Law, of their own; which, because it was compiled by Church men, it was called, The Cannon Law; And though it has here no positive Authority, as being compiled by private Persons, at the desire of the Popes, especially since the Reformation; yet our Ecclesiastic Rights, were settled thereby before the Reformation: And because many things in that Law, were founded upon material justice, and exactly calculated for all Church men; Therefore, that Law is yet much respected among us, Especially in what relates to conscience, and Ecclesiastic Rights.  
Our Municipal Law of Scotland, is made up partly of our written, and partly of our unwritten Law: Our written Law comprehends, first, our Statutory Law, which consists of our Statutes, or Acts of Parliament. Secundo, The Acts of Sederunt, which are Statutes, made by the Lords of Session, by virtue of a particular Act of Parliament, 
* K. Ja. 5. Par 7 Act 93.  impowering them, to make such constitutions as they shall think fit, for ordering the ●rocedur, and forms of Administrating justice, and these are called Acts of Sederunt; because they are made by the Lords sitting in judgement; But are not properly Laws, the legislative power being the King's Prerogative. Tertio, The books of Regiam Majestatem, which are generally looked upon as a part of Our Law, and they, and the leges burgorum, and the other tractates, joined by Skeen to them, are called the old books of Our Law, by many express Acts of Parliament 
* K. Ja. 1 par. 3. Act 54. K. Ja. 3. Par. 14. Act 115 . Tho the books of Regiam Majestatem, were originally but the works of one private Lawyer, writing by way of Institution, and are now very much abrogated by Custom.  
Our unwritten Law, comprehends the constant tract of decisions, passed by the Lords of Session, which is considered as Law; the Lords respecting very much their own decisions; And though they may, yet they use not to reced from them, except upon grave considerations. Secundo, Our Ancient customs, make up a part of our unwritten Law, which have been universally received among us. The tacit consent of the people, operating as much in these, as their express consent does, in making Laws; And such is the force of custom, or consuetude, that if a Statute, after long standing has never been in observance, or having been, has run in desuetude; consuetude prevails over the st●●●●e, till it be renewed either by a succeeding Parliament, or by a Proclamation from the Council: For though the Council cannot make Laws, yet they may revive them.  
Generally, all Laws should look forward 
† K. Ja. 6 par. 3. Act 18.  though declaratory Laws regulat what is past, since their design is, to declare what was Law prior to the statute, and to direct judges, how to decide in cases that needed the decision of a Parliament.  
Laws should command, not persuade; and though the rubric (or title) and narrative of the statute, may direct a doubting judge, yet if the statutory words be clear, they should be followed in all cases.  
All Laws should be so interpreted as to evite absurdities; and as may best agree with the mind of the legislator, and Analogy, or general design of the common Law.  
Correctory Laws (so we call these which abrogate, or restrict former Laws) are to be strictly interpreted, for we should reced as little as can be from received Laws.  
Honourable Laws are to be extended, and the Parity of Reason, often prevails with our Judges, to extend Laws to Cases, that are founded on the same reason, with what is expressly determined by the Statute.   

Tit. II. Of jurisdiction, and judges in General.  
HAving resolved to follow justinian's method, (to the end, there may be as little difference found, betwixt the Civil Law, and Ours, as is possible: And that the Reader may not be distracted, by different methods) I do resolve, first, to lay down what concerns the Persons of whom the Law treats: ●at ●do, what concerns the things themselves treated of, such as rights, obligations, etc. Tertio, The actions whereby these rights are pursued, which answers to the Civilians, objecta juris, viz. Personae, res, & Actiones.  
The Persons treated of in Law, are either Civil or Ecclesiastic, the chief of both which are judges, with whom we shall begin. And for the better understanding of their Office, it is fit to know, that jurisdiction, is a power granted to a Magistrate, to cognosce upon, and determine in causes, and to put the sentence or decreet to execution, in such manner as either his commission, law, or practice does allow.  
All jurisdiction flows originally from the King 
* K. Ch. 2. Par. 1 Act. 2. Par. 3. Act 18.  so that none have power to make Deputs, except it be contained in their commission; And if a Depute, appoint any under him, that sub-depute is called properly a substitute; and every judge is answerable for the Malversation of his depute.  
jurisdiction is either Cumulative, or Privative; Cumulative jurisdiction, is when two Judges, have power to judge the same thing; And generally, it is to be remembered, that the King is never so denuded, but that he retains an Inherent power, to make other Judges, with the same power that he gave in former 
* K. C. 2 par. 3.  commissions; And thus he may erect lands, in a regality, within the bounds of an heritable Sheriff-ship, and burghs Royal, within the bounds of a regality; And these bounds, within which, a Judge may exerce his commission, is called his Territory; so that if any Judge exercise jurisdiction, without his Territory, his sentence is null: and among those who have a Cumulative jurisdiction, he who first citys, can only Judge; and this is called, jus Praeventionis.  
Privative jurisdiction, is when one Judge has the sole power of judging, exclusive of all others; such power have the Lords of Session, in judging of all Competitions, amongst heritable rights, and here there can be no prevention.  
jurisdiction, is founded to any Judge, either, because the defender dwells within his territory, which is called, Sortiri forum ratione domicilij: or Secund● Because, the crime was committed within his territory, which is called ratione delicti; or Tertio, If the Person pursued, have any immovable estate, within his territory, though he live not within the same, he may be pursued by any action to affect that estate, which is called, sortiri forum ratione rei sitae.  
A jurisdiction, is said to be prorogate, when a person not other ways subject, submits himself to it, as when he compears before an incompetent Judge, and propons defences.  
All Judges with us, must take the Oath of Allegiance, 
* K. C. ● Par. 1. Sess. 1, Act 11.  and the Test; 
‡ par. 3 Act 18.  whereby they swear, to maintain the Government of Church and State, as it is now established; and an oath de fideli administratione, before they exerce their Office, And no excommunicate person, nor rebel against the Government, can Judge by Our Law.  
If a person be pursued before a Judge, who is not competent, he may complain to the Lords of Session, and they will grant Letters of Advocation, whereby they Advocate, that is to say, call that cause from the incompetent Judge, to themselves; And if after the letters of Advocation are intimat to that Judge, he yet proceed, his Decreet will be null, as given Spreto mandato.  
jurisdiction is either Supreme, inferior, or mixed: These courts are properly called supreme, from whom there is no appeal to any higher judicatory, such as the Parliament, Privy Council, Lords of Session, the Criminal Court, and Exchequer: Inferior Judges are such? whose decreets, and sentences are liable to the reviewes of the supreme Courts, as Sherriffs, Stewards, Lords of Regality, Inferior Admirals, and Commissars, Magistrates of burgh's Royal, Barons, and justices of Peace. Mixed jurisdiction, participats of the nature, both of the supreme, and inferior courts; such a jurisdiction have the high Admiral, and Commissars, of Edinburgh. Both which are in so far Supreme; that Maritime Affairs, and confirmations of Testaments, must come in and be tabled, before the high Admiral, and Commissars of Edinburgh, in the first instance. As also, they both, can reduce the Decreets of inferior Admirals, and Commissars; But seeing their Decreets are subject to the review, of the Lords of Session, they are in so far inferior Courts.  
No inferior judge, can judge in the causes of such as are Cusin-germans to him, or of a nearer degree, either of affinity, or consanguinity; But there is so much trust reposed in the Lords of Session, that by a special 
* K. J. 6. par. 14. Act 212  Statute, they can only be declined incases relating to their Fathers, Brothers, Sons, Nephews, or Uncles; which by a late statute 
* K. C. 2 par. 3. Act 13. , is likewise extended to the degrees of affinity, and to the Lords of privy Council, and Exchequer, and the Commissioners of justiciary, and to all other judges within the Kingdom.  
The members of the College of justice, have this privilege, that they cannot be pursued before any inferior judge; and if they be, the Lords will Advocate the cause to themselves.   

Tit. III. Of the Supreme judges, and Courts of SCOTLAND.  
THE King, is the Author, and Fountain, of all power, and is an absolute Prince, having as much power, as any King, or Potentate, whatsoever, 
* K. J. 6. Par. 15. Act 251  deryving his power from GOD Almighty alone 
* K. C. ● Par. 1. Sess. 1. Act 5. and 15▪ Par. 3. Act 2. , and so not from the people. The special privileges that he has, are called, His Prerogative Royal; such as, that he only can make Peace, or War, call Parliaments, Conventions, Convocations of the Clergy, make Laws 
* Act foresaid ; And generally all meetings called without his special command are punishable 
* King Ch. 2. Par. 1. Ses. 1. Act. 2. , he only can remit crimes, legitimate bastards, name judges, and Councilors, give tutors Dative, and naturalise strangers; And is Supreme over all persons, and in all causes, as well Ecclesiastic as Civil 
* K. Ja. 6. par. 18. Act 1 K. Ch. 1. par. 1. Act 3. K. Ch. 2 par. 2. Ses. 1. Act 1. .  
The Parliament of old, was only the King's Baron Court, in which all freeholders' were obliged to give suit, and presence in the same manner, that men appear, yet at other head courts. And therefore, since we had Kings before we had Parliaments, it is ridiculous to think, that the King's power flowed from them.  
The Parliament is called by Proclamation, now upon forty days, though it may be Adjourned upon twenty, but of old, it was called by brieves, out of the Chancellary. It consists of three Estates, viz. the Arch-Bishops and Bishops; and before the Reformation, all Abbots, and Mitred-priors, sat as Church men. Secundo, The Barons, in which estate are comprehended, all Dukes, Marquesses, Earls, Viscounts, Lords, and the Commissioners, for the Shires; for of old, all Barons, who held of the King, did come; but the estates of lesser Barons not being able to defray this charge, they were allowed to send Commissioners for every Shire. 
* K. J. 1. Par. 7. Act 101 K. Ja. 6. Par. 11. Act 113  And generally, every Shire sends two, who have their charges born by the Shire. Tertio, The Commissioners for burgh's Royal, each whereof, is allowed one and the Town of Edinburgh two; Though all the three Estates must be cited, yet the Parliament may proceed, albeit any one estate were absent, or being present would disassent. The legislative power is only in the King, and the Estates of Parliament only consent, and in Parliament, the King has a negative voice, whereby he may not only hinder any Act to pass, but even any overture to be debated. The Acts of Parliament must be proclaimed upon forty days, that the Liege's may know them 
* K. Ja. ●. Par. 7. Act. ●28. .  
To secure the Crown against factions, and impertinent overturs in open Parliament: Our Parliaments choose before they proceed to any bussiness, four out of each State, who with the Officers of State determine what Laws, or Overturs, are to be brought in to the Parliament; and they are therefore called, the Lords of Articles.  
We have another meeting of the three Estates, called the Convention of Estates, which is now called upon twenty days, and proceeds in the same way that the Parliament does, diffreing only from it, in that the Parliament, can both impose Taxations, and make Laws; whereas the Convention of Estates, can only impose, or rather offer Taxations, and make Statutes for uplifting those particular Taxations. But can make no Laws. And of old, I find by the Registers of the Conventions, (the eldest whereof now extent, is in Anno 1583.) that the Conventions of Estates consisted, of any number of the three Estates, called off the Streets, summarily by the King; And yet they cried down, or up money, and judged processes, which now they do not.  
The Privy Council is constituted by a special commission from the King, and regularly their power extends to matters of public Government; in order to which, they punish all Riots, for so we call breach of the peace. They sequestrate Pupils, gives aliments to them, and to wives, who are severely used by their husbands, and many such things, which require such summar procedure, as cannot admit of the delays necessary before other courts; And yet if any of these, dipp upon matter of Law, (for they are only judges in facto,) they remit the cognition of it to the Session, and stop till they hear their report. The Council delay Criminal executions, and sometime change one punishment into another, but they cannot remit Capital punishments; They may also Adjourn the Session, or any other court: It has its own Precedent, who precedes in the Chancellors absence, and it has its own Signet and Seal: All who are cited to compeat there, must be personally present, because, ordinarily the pursuer concludes, that they ought to be personally punished. All diets there are peremptor, all debat is in writ, no Advocate being allowed to plead, because the Council only judges in matters of fact.  
The Lords of Council and Session, are judges in all matters of civil Rights; of old, they were chosen by the Parliament, and were a committee of Parliament: But the present model was fixed and established by King james the fifth, after the model of the Parliament of Paris 
* K. Ja. 5. par. 5. Act 36, 37, 38, 39, 40. .  
Of old it consisted of seven ecclesiastics, and seven Laics and the Precedent was a Church▪ man; But now all the fifteen are Laics. And there sits with them four Noble— men, who are called extraordinary Lords and were allowed to sit to learn, rather than decide▪ But now they vote after the ordinary Lords. All the Lords are admitted by the King▪ and by Statute cannot be admitted, till they be twenty▪ five years of 
* K. Ja. 6. Par. 12. Act 132.  Age, and except they have a 1000 lib. or 20 Chalders of victual in yearly rent. Nine are a Quorum.  
Crimes of old, were judged by the justice General, justice Clerk, and two justice Deputes; but now five Lords of Session, are joined to the justice General, and justice Clerk, and they are called the Commissioners of justiciary; Because, they sit by a special commission only: Four of which number make a Quorum in time of Session, three in time of Vacance, and two at Circuit Courts 
* K. C. 2 Par. 2. Sess. 3. Act 18. .  
The Exchequer, is the King's Chamberlain, Court 
* K. C. 1 par. 1. Act 18.  wherein he judges what concerns his own revenues; It consists of the Theasurer, (in whose place are sometimes named Commissioners of the Theasury,) the Theasurer Depute, and as many of the Lords of Exchequer, as his Majesty pleases.  
The High Admiral, has a commission from the King, to judge in all Maritime affairs, not only in Civil, but also in Criminal cases, where the crime is committed at Sea, or within flood-mark; nor can the Lords of Session Advocate causes from him 
* K. C. 2 par. 3. Act 16. ; though they can reduce his Decreets, as he does the Decreets of all inferior Admirals, or Admiral Deputes, for many Heritors are constitute Admirals, within themselves, by a right from the high Admiral, since his Gift, or from the King before it.   

Tit. IU. Of Inferior jurisdictions, and Courts.  
THe Sherriff, is the King's chief and Ancient Officer, for preserving the Peace, and putting the Laws in execution 
* K. J. 6. Par. 12. Act 124 , he has both a Civil and Criminal jurisdiction, and his Commission is under the Great Seal; he is obliged to raise the hue and cry after all Rebels, and to apprehend them when required: To assist such as are violently dispossessed: To apprehend such as say Mass, or trouble the Peace, and take caution for their appearance 
* K. C. 2 Par. 1. Sess. 3. Act 15. : He nor no Inferior judge, can hold Courts in time of Vacance, in Civil cases, without a dispensation from the Lords of Session; But in Criminal cases, he needs no dispensation, because crimes should be instantly punished.  
He is judge in all crimes, Except the four Pleas of the Crown, to wit, Murder, Fir● rasing, Robery, and ravishing of Women 
* Leg. Mak. 2. Act 11. Quoniam Attach. cap. 79 ; but murder he can judge, if the Murderer was taken with red-hand, that is to say, immediately committing the murder; In which case, he must proceed against him within three Suns; And in Theft, he may judge, if the Thief was taken with the fang.  
The Shireff, is also judge competent, to punish Bloodwits, for which he may sign in 50 pounds Scots; but no higher, and for contumacy, he can fine no higher than 10. pounds.  
A Lord of Regality, is he who has the land whereof he is Proprietar or Superior, erected with a jurisdiction, equal to the justices, in Criminal cases, and to the Shirreff, in civil causes; he has also right to all the moveables of Delinquents, and rebels, who dwell within his own jurisdiction, whether these moveables be within the regality, or without the same; And because he has so great power, therefore no Regality can legally be granted except in Parliament 
† K. Ja. 2. Par. 1●. Act 43. .  
The Lord of Regality, has also by his erection, power to repledge from the Sherriff, and even from the justices in all 
* K. Ja. 6. Par. 11. Act. 29.  cases except treason, and the pleas of the Crown, that is to say, to appear, and crave; that any dwelling within his jurisdiction, may be sent back to be judged by him, and he is obliged to find caution, that he shall do justice, upon the Malefactor whom he repledges▪ within year and day, and, the caution is called Cull▪ reach 
* Quoniam Attach, cap. 89. .  
The Stewart, is the Kings Sherriff, within the Kings own proper Lands, and these were erected, where the lands had been erected, before in Earledoms, or Lordships; For else the King appointed only a bailie in them, and these jurisdictions are called Bailliaries, the Bailies of the King's proper lands having the same power with the Sherriff. And all these, viz. the Sherriff, the Stewart, and the Lord of Regality, proceed in their courts after the same way, and each of them, has a Head Burgh, where they hold their courts, and where all letters must be executed and Registrate.  
The Prince of Scotland has also an Appange, or Patrimony, which is erected in a jurisdiction, called the Principality. The revenues comes in to the Exchequer, when there is no Prince; but▪ when there is one, he has his own Chamberlain.  
justices of Peace, are these who are appointed by the King, or Privy Council, to advert to the keeping of the peace, and they are judges to petty riots, servants fies, and many such like, relateing to good neighbourhood, expressed in the instructions, given them by the Parliament 
* K. C. 2 Par. 1. Act 38.  and are named by the Council; albeit, be the foresaid Statute, the nomination is to be by His Majesty, and His Royal Successors, which the King has now remitted to the Privy Council.  
The justices of peace do name Constables, within their own bounds, from six months to six months; Their Office is, to wait upon the justices, and receive injunctions from them, delate such Riots and Crimes to the justices, as fall under their Cognisance, Apprehend all suspect Persons, Vagabounds, and night Walkers, as is at length contained in their injunctions, given them be the foresaid Act.  
Every Heritor may hold courts for causing his Tenants pay his rent; And if he be infeft, cum curijs, he may decide betwixt Tennent and Tennent in small debts, and may judge such as commit blood on his own ground; though his land be not erected in a barony; But if his land be erected in a barony, (which the King can only do:) he may (like the Sherriff) unlaw for bloodwits, in 50 lib. and for absence in 10. And if he have power of Pit and Gallows, he may hang and drown in the same manner as the Sherriff can.   

Tit. V. Of Ecclesiastic Persons.  
SInce the Reformation, the King is come by Our Law in place of the Pope 
* K. Ja. 6. par. 1. Act 2, , and all rights to Kirk-lands, must be confirmed by him, else they are null; 
* K. Ja. 6. Par. 9 Act 7 . His Majesty only can call convocations of the Clergy; (for so we call our National assemblies 
* K. Ja: 6. parl. ●. Act 131. K. Char 2. par. 1. sess: 1. Act 4. sess. 3. Act 5. ) and His Commissioners sits in them, and has a negative.  
We have two Archbishops, and twelve Bishops, and they are thus elected, the King sends to the Chapter a Congee de Eslire; (which is a French word,) signifying a power to elect, and with it a letter recommending a person therein named, And the Chapter returns their electing: Whereupon the Kings grants a Patent to the persons, and a mandate to the Archbishop, or Bishops, to Consecrate him: Both which pass the great Seal 
* K: I: 6: Par: 22: Act 1. .  
The Archbishops and Bishops, have the sole power, of calling Synods within their own Diocies 
* K. J. 6. par. 21. Act 1. , and in these, they name the Brethren of the conferance: Who are like the Lords of Articles in the Parliament, and by their advice the Bishops, depose, suspend, and manage.  
Bishops have their Chapters, without whose consent or the major part, the Bishop cannot alienate 
* K. Ja. 6. par. 18. Act 3. , which Major part, must sign the deeds done be the Bishops; And it is sufficient if those of the Chaper, sign at any time even after the Bishop; but it must be in his life-time: Nor are Minors, or absents, counted; and one having two benefices, has two votes; but the Appending of the Seal, is by Special Statute, declared to be sufficient in deeds done be the Archbishop of St. Andrews, without the Subscriptions of the Chapters 
* K. Ja. 6. par. 19 Act 8. .  
A Person or Rector Ecclesi●e, is he who is presented to the teiths, jure proprio; But because of old, Parsonages were bestowed on Monastries, therefore they sent Vicars, who served the cure for them; and who got a share of the stipend, for their pains, either ad placitum; And they were called simple Vicars, or for life, and they were called perpetual Vicars. And after the Reformation, the Churches, which so belonged to them continued Vicarages still, The titular, who came in place of the convent, retaining the right to the Parsonages duties.  
There were in time of Popery, Collegiate Kirks built, and doted by Kings, and great men, for singing of Mass, which were governed by a Provost, and some for singing, who were called prebends; And because, some parishes were wide, some were allowed, to build a chapel for their private devotion; And since the Reformation, these Chaplanaries, and Prebendaries, are allowed to be bestowed by the Patrons, upon bursers in Colleges, notwithstanding of the foundations 
* K. Ja. 6. Par. 1 Act 12▪ .  
For understanding all these, it is fit to know; that the Primitive Church, either to invite men to build, or dote, or to reward such, as had, did allow such as either had built, or had bestowed the ground whereon to build, or had doted a church, already built, to present alone if, they were the only benefactors, or by turns, if there were moe, and they were called Patrons, or Advocati, Ecclesiarum according to that,  Patronum faciunt, does, Aedificatio, fundus. 
When a Church vaikes, the Patron must present within six months, a fit Person to the Bishop; else the right of presentation falls to the Bishop, jure devoluto; 
* K. Ja. 6. Par. 2 Act 1.  but if the Bishop refuse to admit and collate the person presented, the Patron must complain to the Archbishop, and if he also refuse, or delay, the privy Council will grant letters of horning against the Bishop, to receive the person presented 
* Act foresaid. , and during the vacancy upon that refusal, the Patron may retain the vacant stipends.  
Upon this presentation the Bishop causes serve an Edict, on nine days; wherein all persons are after Divine service, advertised, to object, why, such a man should not be admitted to the benefice; And if none object, the Bishop confers the Church and benefice upon the Person presented; and this is called a Collation, after which, the Bishop causes enter him, who is so collated, by causing give him the Bible, and the Keys of the Church, and this is called Institution, Presentation, gives only jus ad rem, and Institution, jus in re, and is as a Seasme.  
If the Bishop be patron himself, he confers pleno jure; and the presentation, and collation, are the same: Bishops also have mensal churches, so called; Because, they are de mensa Episcopi, being a part of his patrimony, in which he serves by his Viccars, and Plants as Diocessian Bishop; and if a town, or paroch, resolve to make a second Minister, when they are not patrons, he is called, a Stipendiary Minister, and he is collated, and instituted also; but the patron's presentation is sufficient in prebendaries, and other benefices, which has not curam animarum; And that without the necessity of Collation, or institution, the Bishop having no other interest in the benefices, but in so far as they concern the cure of souls.  
By Act of Parliament, all Ministers must have a competent Stipend, not below eight Chalder of victual, or 800. marks or above 1000 marks or 10. chalders of victual: (Except there be just reason to give less) 
* K. Ja. 6. Par. 22. Act 3.  together with a manse and gleib.  
The manse, a manendo, is the place where the Minister is to dwell, the Gleib, from Gleba terra, is a piece of land for Corn and Father to his Beasts: If there was a manse of old belonging to the parson, or vicar, the minister has right to it; If there was none, the parochiners must build one, not exceeding 1000 lib. and not beneath 500 marks 
* K. Ja. 6 Par. 13 Act 161 , at the sight of the Bishop of the Diocie, or such Ministers as he shall appoint, with two or three of the most discreet men in the paroch: as also the Heritors are liable to repair the manse; But the present incumbent is obliged to leave it, in as good condition as they gave it to him 
* K. Ja. 6 Par. 21 Act 8. .  
The Ministers Glieb, is to comprehend 4 Acres of Arable land, or sixteen sowms-grass, where there is no arable land, which is to be designed out of the lands, which belonged of old to Abbots, prior's, Bishops, Friars, or any other Kirk▪ land's within the parish 
* King James 6 Par. 3. Act 48.  with freedom of foggage, pasturage for a horse, and two cows, fuel seal, and divot, which Gleibs are to be designed be Ministers, named by the Bishop, with the advyce of two of the most honest and godly of the parishioners, and the designation is to be signed be the designers 
* King James 6 par: 11: Act 161 .  
If a Bishop or Minister, be consecrated, translated, or entered, to his benefice, before Whitsonday; he has right to the whole years' fruits, because they are then presumed to be fully sown, and if he be deposed or transported before Whitsonday, for that same reason he hath no part of that year; But if he serve the cure a while after Whitsonday, and be transported or deposed before Michalmas, he hath the half of that years Stipend; and if he serve till after Michalmas, he hath the whole years. So that the legal terms of benefices are Whitsonday, at which time the sowing is ended; and Michalmas, at which time the fruits are reaped.  
They have likewise right to the Annat after their death, which was introduced by the Cannon Law, and by a special statute with us, is declared to be half a years rend of the benefice, or stipend, over and above what is due to the defunct, for his incumb●ncie; So that if he survive Whitsonday, he has the half of that year for his incumbency, and the 
* King Charles' 2: par. ● sess: 3: Act 13.  other half a Annat, and if he survive Michalmas, he has the half of the next year for his Annat.  
There is a committie of Parliament, always sitting, called the commission for plantation of Kirks, or Valuation of teinds, (consisting of so many of every estate of Parliament;) who have power to modify, and augment Ministers Stipends, and to unite and disjoin churches, etc. whose decreets; because they are a comity of Parliament cannot be reduced by the Session, or any other inferior judicature.  
The Primitive Christians remitted the cognition of all cases that related to Religion, as the matters of divorce, bastardy, the protection of dying men's estates, to their Bishops; or such as they employed, under them, who were called officials, and with us are called Commissars; and are called therefore judices Christianitatis: And they are therefore the only judges in divorce; because, it is the breach of a vow: And to scandal, because, it is an offence against Christianity, and of teinds and benefices; because, these are the patrimony of the Church: And of all matters referred to Oath, (if the same exceed not 40 lib. Scots) because, an Oath is a Religious tye.  
Every Bishop has his Commissar, who has his commission from the Bishop only; and this extends no further, than the Constituents Diocy. But the archbishop of St. Andrews, has power to name four Commissars, who are called the Commissars of Edmburgh; because, they sit there, and they only are judges to divorce upon adultery, and can only declare marriages null, for impotency and to bastardy, when it has any connexion with adultery, or marriage: And they only may reduce the sentences of all inferrior Comm●ssars 
* King James 6 Par 29. Act 6. , though the Lords of Session may reduce even their decreets and sentences; They have instructions from the King, which are their Rule. And these are likewise recorded in the books of Sederunt of Session;   

Tit. VI Of MARRIAGE.  
Having spoken fully of Persons, at they are considered in a Legal sense; We shall now treat of Marriage, which is the chief thing that concerns Persons, and their State in Law.  
MAarriage is defined to be, the co●●uncto●n of Man and Wife, vowing to live inseparably together, till death.  
By conjunction▪ ●ere, consent is understood, n●m cons●nsus, non ●oactus, facit matrimonium.  
Consent, is either de futuro or de presenti, consent de futuro, is a promise, to solemnize the Marriage, which in Law, is called Spousalia; and this is not marriage; for either party, may resile, rebus integris, notwithstanding of the interveening Promise, or Espousals, consent, de presenti, is that in which marriage does consist; and therefore, it necessarily follows, that none can marry, except these who are capable to consent, and so Idiots, and furious Persons, durante furore, cannot marry, nor Infants, who have not attained the use of reason: that is, when they are within the years of pupillarity; which is defined in Law, to be 14 years, in Males, and 12 in Foemales, nisi malitia suppleat aetatem.  
The Law, in decency, requires the consent of Parents, though a marriage without it, is valid, if the persons married be capable of consenting.  
By our Law, none can Marry who are nearer relations than Cousin germane; which is suitable to the judicial Law, of Moses 
* Levit. chap. 18 K. Ja. 6, Par. 1. Act 1. , and the same degrees porhibited in Consanguinity are also forbidden in Affinity.  
Marriage, is either regular, and solemn, or clandestine; the regular way of Marrying, Is, by having their names proclaimed in the Church, three several times, which we call Proclamation of Banns, without which, or, a Dispensation from the Bishop, the Marriage is called a Clandestine Marriage; and the parties are finable for it; but the Marriage is still Valid 
* King Charles 2. parl. 1. Sess. 1 Act 34. ; Cohabitation also, or dwelling together, is presumed to be Marriage 
† King James 4 par. 6. Act 77. K Char Par. 2. Act 9 Sess. 3. , if the Parties were repute, Man and Wife, dureing their life-time, and so the Children are not Bastards; though they cannot prove that their Parents were Married; unless it be clearly proved that they were not Married.  
From the conjugal Society, arises, the communion of movable Goods betwixt Man and Wife; but the administration thereof during the Marriage is solly in the Husband; which reaches even to Alienation, and disposing upon the Movables, at his pleasure though they be not dispon'● to him by her (Marriage, being a Legal Assignation, as to thi● effect) but he has no further Right to her Heritage, save that he has Right to the Rents of it, and to Administra●● and Manage it, during th● Marriage, and this is called Ius Mariti, and is so inseparable from the quality of ● Husband; that he cannot b● Our Law, Renounce his Pon●● of Administration, so that the● are both Domini, by this communion; but the Husband h●● a Dominium actu, and th● Wife only habitu.  
The Husband is liable dureing ●he Marriage to pay her movable debts; but how soon the Marriage is dissolved, he is no ●urther liable to pay her debts; than in as far as he was a Gainer by her Estate.  
If the Wife contract any debt, or do any other deed, after the Proclamation of Banns, the Husband will not be thereby Prejudged.  
The Husband is also obliged ●o Aliement his Wife, and if he ●efuse, the privy Council, or Lords of Session, will modific ●n Aliement to her out of her Husband's means, suitable to ●is Quality, which they will also grant, ob saevitiam, if he ●reat her Inhumanely.  
The Husband is Tutor, and ●urator to his Wife, and therefore, if she had Tutors, or Curators, formerly, their powe● is devolved over by the Law upon the Husband; and whatever deeds she does without his consent are null, & when s●● is Cited, he must be Cited fo● his Interest; or if she Marri● during the Dependence of a● Process, the samen must upon Supplication be continued against him.  
Because, the sole administration, during the Marriage belongs to the Husband; Law hath secured the Wife, th●● she cannot oblige herself when she is clothed with ● Husband, albeit with his consent, and therefore all Bands and Obligations, granted by ● Wife stante Matrimonio, are 〈◊〉 jure, null; but if she oblige h●● self, ad factum prestandum, s●● will be liable, as if she shoul● oblige herself to Infest any Man in Lands properly belonging to herself.  
During the Marriage, all donations made betwixt Husband and Wife are Revokable, at any time in their life, (except in so far as they are suitable provisions) lest otherways, they might ruin themselves, thorough Love, Fear, or Importunity; and that either expressly, by Revocking what is done (though they obliged themselves not too Revoke) or Tacitly, by disponing to others, what was so gifted.  
All Rights made by a Wife to her Husband, or any third party with his consent and to his behoof, are valid Rights; if they be Ratified by her before a judge, before whom she is to declare without the presence of her Husband, that she was not compelled to do that deed, and Swear, that she shall nev●● quarrel the same: Whereas▪ if they be not Ratified, they may be quarrelled, as extorted vi & metu, or may be Revokes as donatio inter Virum, & Uxorem, which the Ratification before a judge does absolutely exclude, Propter Religionem Sacramenti, the Ratification, being extra presentiam mariti.  
Marriage is dissolved either by Death, or Divorce, and 〈◊〉 the Dissolution of the Marriage be by Death there is a difference, if the samen be within Year and Day of the Marriage, or thereafter; for if either the Husband or the Wife die within the Year, all things done in tuitu Matrimonij, become void▪ and return to the same condition they were in before the Marriage; except there be a living Child, Procreate of the Marriage, who was heard cry.  
If the Marriage be dissolved by Death, after the Year expyres, than the Wife surviving, has right to a third of the movable Estate; if there be Children; and to the half, if there be none, and this is called jus Relictae; and though this Right does not hinder the Husband, to give or dispose upon his moveables in his Life, yet he cannot do any deed to defraud his Wife of this Right, the fraud being palpable; she has also a right to the liferent of the third of the lands, wherein he died infest, and this is called a Widow's Terce; and to any other provisions contained in her Contract of Marriage, which provision if it exceeds the Terce, it excludes 
* K. C. 2 Par. 3. Act 10.  it; and the Husband surviving has Right to the Tocher: and if he marry an Heritrix, he has Right to all her Lands, after her Death, during his own life, if there be a Child of the Marriage who was heard cry, and this is called, the courtesy of Scotland 
* Reg. Ma. lib. 2. cap. 58. Leg. Burg. cap. 44. .  
Marriage is dissolved by Divorce, which is granted either for wilful disertion, and non adherence, to be procured by a Process before the Commissars of Edinburgh for non adherence; when either Party refuse to cohabite together, and remains in their malicious obstinacy four years, and are thereupon excommunicate 
* K. Ja. 6. Par. 4 Act 55 , or for Adultery, in both which cases the Persuer must give his Oath, that the Process is not carried on by collusion, and after a Decreet of Divorce is obtained, in either case the Party innocent may marry; but the Party that is guilty cannot, and besides loses all the benefit that they could expect by the Marriage.   

Tit. VII. Of Minors, and their Tutors, and Curators.  
WHilst Persons are within twenty one years, the Law presumes them to want that firmeness of judgement, which is requisite, for the exact manadgement of their Affairs; and during that time, they are called Minors, by a general Term; though properly, such only are to be called Minors, who are past Pupillarity, which lasts in Males till fourteen, and in Females till twelve.  
Tutory may be defined, a power and faculty, to govern the Estate and Person of Pupils; and the Law gives Tutors, and Curators, for the manadgement of their Affairs.  
There are three kinds of Tutors, viz. Tutor Nominate, Tutor of Law, and Tutor Dative, Tutor Nominate, (who is likewise called Tutor Testamentar,) is he who is left Tutor by the Father in his Testaments, or any other write, and he is not obliged to find caution, or give his Oath, de fideli administratione; because it is presumed, the Parent hath chosen a sufficient person.  
The Father only can name Tutors; but if the Mother, or even a Stranger, give or dispone any thing to a Child, he may name a Tutor to manage what he gives; but if there be no Tutor nominate, or if he accepts not, then there is place for a Tutor of Law, who is so called, because he succeeds by Law, and generally, the nearest Agnate (for so we call such as are related by the Father) who is to succeed to the Minor, being past twenty five years, and would be Heir to him, is his Tutor in 
* K. Ja. 3 Par. 7. Act 32.  Law: He takes a Brieff out of the Chancellary, and serves himself before a judge, to whom it is directed, and the Tutor of Law must find caution before he administrate.  
If he do not s●rve within a year after the time he might have served, than any person may give in a Signator to the Exchequer, and he gets a gift under the Privy Seal, of being Tutor Dative, and finds caution, acted in the books of Exchequer: But of old, they found caution in the Commissars books: this Tutor and he only is obliged to make Faith, de fideli administratione.  
If there be more Tutors than one, the major part must all consent; but the Pupil needs not subscrive: But if there be a Tutor, sine quo non, he must always be one of the Consenters.  
After the years of Pupillarity there must be a summons raise● at the Pupils instance, summonding some of the Fathers-side, and some of the Mothers-side, upon nine days warning▪ to appear before any judge and at the day, the Minor gives in a list of those he intends to choice to be his Curators, and those who accept must Subscrive the acceptation, and they must find Caution de Fideli 
* Q. M. Par. 6. Act 35. , upon all which the Clerk extracts an Act, which is called, an Act of Curatory: There uses to be sometimes, Curators, sine quo non, and the Major part with him is still a Quorum; except the Minor in his particular Election hath appointed otherwise; for the Quorum is arbitrary, and the Act bears how many shall be a Quorum.  
There are these differences betwixt Tutors and Curators, that Tutor datur Personae, Curator rei, a Tutor Acts, and Subscrives for his Pupil, a Curator with him; but both must make inventary of all the Pupils Estate before they Administrate, with consent of the nearest of Kin on both sides, and if they neglect to make Inventary, they will get no Expenses allowed them during their Administration, and may be removed from their Offices as suspect 
* K. C. 2 Par. 2. Sess. ●. Act 2. ; neither have Salaries: and both are liable to Compt, but not till their Office expyre, as both have Action against their Minors, for what they profitably expended during their Administration, which is called, Actio tutelae Contraria.  
If the Minor have Curators, and do any thing without their consent to his prejudice; (for he may make his condition better without them, but not worse, the advantage being evident and without hazard) than that Act is, ipso jure null, that is to say, he needs not Revoke; but if he have no Curators, than any Act he does to his own prejudice is valid; but he must reduce the same thus, viz. he must writ a Revocation and Subscrive it before two witnesses, and Registrate it, and thereupon he must raise and execute a Summons of Reduction of that Act, ex capite Minoritatis, & laesionis, before he be 25 years of age, wherein he must make appear, he was both Minor, and was laesed; otherways, the Lords will not repone him: Though this Revocation be not absolutely necessary, yet the executing of a Summons before 25 is absolutely necessary: and though a Minor swear not to Revoke, yet this Oath is declared null by Law, and the Eliciter of it punishable, and infamous 
* K. C. 2 Par. 3. Act 19 ; but if he Fraudulently circumveen● another, by saying he was Major, he will not be restored against his own fraud.  
A Tutor or Curator, cannot pursue his Pupil,▪ till he has counted for his intermissions; for it's presumed he has his Pupils Estate in his own hands, and whatever Right he buys of what belonged to his Pupil is presumed to be bought with his Pupils means; and so the advantage must accress to the Pupil.  
So careful has Our Law been to protect minors, and to secure Old Estates, that minor non tenetur placitare super haereditate paterna 
* Statu●: a Will: cap. 39 , that is to say, a minor is not obliged to answer any process concerning his Father's Heritage; but, yet if his Fathers Right be quarrelled for his Father's crimes, or delicts, as in the cases of falsehood, forfeiture, or Recognition, these cases are excepted, and he is obliged to answer. Secundo, This privilege extends not to Actions concerning marches, or division of lands. Tertio, It defends not against the Superior perseving for his casualties. Quarto, Where the minors right is only quarrelled consequentiallie, the chief right quarrolled belonging to a major, there is no place for this privilege. Quinto, It defends not in cases where the Heritage was deryved from Collaterals, such as Brothers, or Uncles. Sexto, It defends only where the Heritage descended even from the Father, or Grandfather, if they died in peaceable Possession, and if no Process was intented against them in their own life time, Septimo, It takes only place, where the Father was actually Infeft; but than it is accounted Heritage, though it was conquest by the Father.  
The privilege of minority, is in some cases allowed to the minors Heir: Which are comprised in these following rules 1. If a minor succeeds to a minor, the time of Restitution is Regulated by his own minority, and not by his Predecessors. 2. If the Predecessor be major, and Intra quadriennium utile restitutione, is competent during the Heirs minority; but he has no further of the anni utiles, than remained to the defunct, the time of his deceass. 3. If a major succeed to a minor, he has only quadriennium utile, after the minors deceass, or so much thereof as was unexpyred at that time.  
Minority ends both in Men and Women, when they are 21. years of age complete; but after that there is 4. years granted, wherein they may reduce what they did Revoke before they were 21. years complete, and these years are called, quadrienneum utile.  
If a Man be an Idiot, or Furious he must be found to be so by an inqueist, and thereafter his nearest of kin may serve themselves Tutors; or the Exchequer may grant a Tutor dative, if they serve not, but the Tutor in Law, will be preferred to that Tutor dative offering to serve quandocunque, and it must be proven to the inquiest at the time of the service, that he is furious, and when he began to be so, and all deeds done by him after that are null, not only from the date of the service, but from the time that he was found to be Idiot, or 
* K. J. 6. Par. 10. cap. 18.  Fuirous.  
If a Person be Prodigal, or Spendthrift, he interdicts himself, either voluntarly, which is done by a Band, whereby he obliges himself to do nothing without the consent of such friends as he therein condescends upon; and these are therefore called the interdicters, and if this Narrative be false, so that the person is not improvident, as he relates in the Band, this voluntar interdiction will be reduced. Secundo, Interdiction proceeds upon a pursuit, at the instance of the nearest of kin, against the prodigal whom the Lords will interdict if they see cause; or 3. though there be no pursuit; yet if in another process they find he has been often, or is obnoxious to be cheated, they will interdict him, Ex proprio motu, and these are called judicial interdictions; and no interdiction lasts longer than the Levity and Prodigality which occasioned it, but this requires also the sentence of a judge.  
Upon this voluntar Band, the Lords of the Session grants letters of Publication, and after these Letters are published, at the Mercat Cross of the head Burgh of the Shire, where the person interdicted dwells, and are Registrat; the person interdicted can do nothing to the prejudice of his heritable Estate, otherways the interdicters may reduce these deeds as done after the publication of the interdiction; (for interdictions extend only to Heritage; but yet the person himself is still liable to personal execution, even upon these deeds done after interdiction.  
A Father, is likewise in Law Administrator to his own Children, that is to say, is both Tutor, and Curator, to them, if they fall to any Estate during their minority, and if either Pupil or Minor have any Legal Action to prosecute, and want Tutors or Curators, the Lords will upon a Bill Authorise Curators, who are therefore called Curators, ad lights.  
All Tutors and Curators can act and do whatever the Pupil might do if he were major; except in selling of land, which they cannot sell without a sentence of a Iudge●; finding the vendition necessary for payment of debt, or setting Tacks to last beyond their own Office.  
All these Tutors, Curators, and Administrators, or any who behave as such, and who are called in Our Law Pro-Tutors, are liable to do exact Diligence, and therefore; if any of their Pupils Debtors becomes Bankrupt, or their Tenants break, they are liable and the Pupil may pursue any one of the Tutors for the negligence of all the rest, but he has his relief against the rest:  
They are likeways liable to put the minors Rents, out upon Annuallrent, within half a year, or a term after they receive them, and to put out his money▪ upon Annuallrent within a year, both which times are allowed to get good Debtors but if his Bands bear Annuallrent, they are only obliged to take in these Annuall-rents once during their Office, and to turn them in a Principal sum, bearing Annuallrent.  
After Tutors and Curators have once accepted they cannot Renounce; but if they miscarry in their Administration, they may be removed, by an action, as suspect Tutors.  
If there be more Tutors or Curators, the Office upon the death of any of them Accresses to the Survivers; except they be named jointly; for then the first Nomination is dissolved by the death of any one of them, the defunct not having trusted any one, and for the same reason, if a certain number be declared a Quorum, the Nomination fails, if so many dye as that this number survives not, nor does the Office Accresse to such as Survive.  
We have little use in Scotland, of what the Institutions of the Roman Law teach, concerning slavery, or Patria potestas, for we as Christians allow no Men to be made Slaves, that being contrare to the Christian liberty; and the Fatherly power or Patria potestas, has little effect with us; for a Child in Family with his Father, acquires to himself and not to his Father as in the Civil Law.    

PART SECOND.  

Tit. I. Of the Division of Rights, and the several ways by which a Right may be acquired.  
BEing to treat in the second Book of things themselves, to which we have Right, and how we come to have right to them, It is fit to know.  
That some things fall not under commerce, and so we cannot acquire any property in them, such as are things common, as the Ocean, (though our King has Right to our narrow Seas, and to all the Shores.) Secundo, Things public, which are common only to a Nation or People, as Rivers, Harbours, and the Right of Fishing, in the saids Rivers. Tertio, res universitatis, which are common only to a Corporation or City, as a Theatre, or the Mercat place, and the like: Quarto, Things that are said to be no Man's, but are juris Divini, which are either sacred, such as the Bells of Churches, for though we have no consecration of things since the Reformation, yet some things have a Relative Holiness and Sanctity, and so fall not under Commerce, that is to say, cannot be bought and sold by Private Persons. Quinto, Things that are called sanctae, so called because they are guarded from the injuries of Men, by special Sanctions, as the walls of Cities, Persons of Ambassadors, and Laws, Sexto, Things Religious, such as Church-Yeards.  
As to those things which fall within Commerce, we may acquire right to them, either by the Law of Nature, and Nations, or by our Civil and Municipal Law, dominion or property is acquired by the Law of Nations either by our own fact and deed. or Secundo, by a connexion with, or dependence upon things belonging to us, the first by a General term is called Occupation, and the last Accession.  
Occupation, is the apropriating and apprehending of those things, which formerly belonged to none. And thus we acquire property in wild Beasts, of which we acquire a Right how soon we apprehend them, or are in the prosecution of them with probability to apprehend them, as also we retain a right to them whilst they remain in Our possession, and evenafter they have escaped, if they be yet recoverable by us. Secundo, Propertie comes by Accession, as for instance, a House Built upon, or Trees taking root in our ground, and the product also of our beasts belong to us, and ground that grows to our ground becomes insensibly ours, and is called, Alluvio by the Civilians. And it is a general Rule in Law, that accessorium sequitur Naturam sui principalis; and yet a Picture drawn by a great Master upon another man's Sheet or Table, belongs to the Painter, and not to the Master of that whereon it is drawn, the meanness of the one ceding to the nobleness of the other.  
There are many other ways of acquiring Right and Property, which may be referred either to Occupation, or Accession; as if a Man should make a Ship of my Wood, it would become the Makers, and would not belong to me, to whom the wood belonged, and this is called Specification, in which this is a general rule, that, if the species can be reduced to the rude mass of matter, than the Owner of the matter is also owner of the species, or thing made; As, if a Cup be made of another man's Silver, the cup belongs not to the maker, but to the owner of the Mettle; because it can be reduced to the first Mass of Silver, but if it cannot be reduced, than the Species will undoubtedly belong to him that made it, and not to the owner of the matter, as Wine, and Oil, made of another's Grapes, and Olives, which belongs to the maker, seeing wine, cannot be reduced to the Grapes of which it was made.  
Propertie is likewise acquired when two or more Persons mix together in one, what formerly belonged to them severally, and if the materials mixed be liquid, it is called by a special name, Confusion, as when several Persons Wines are mixed and confounded together; but if the particulars mixed, be dry and solid, so as to retain their different shapes and Forms, it is called commixtion, and in both cases, if the confusion, or commixtion be by consent of the Owners, the body or thing resulting from it, is common to them all; but if the Commixtion be by chance, then if the materials cannot be separated, the thing is yet common; as when the Grain or Corns of two persons are mixed together by chance, here there must necessarily be a community; because, the separation is impossible; but if two Flocks of sheep belonging to different persons should by accident mix together, there would be no community; but every man would retain right to his own Flock, seeing they can be distinctly known and separated, and these two ways of acquisition are by accerssion.  
The last, and most ordinary way of acquiring of property, is by tradition, which is defined a delivery of possession by the true owner, with a design to transfer the property to the Receiver, and this translation, is made either by the real delivery of the thing itself, as of a horse, a cup, etc. or by a Symbolic delivery. As, is the delivery of a little Earth and Stone in place of the Land itself; for, where the thing cannot be truly delivered, the Law allows some symbols, or marks of tradition, and so far is tradition necessary to the acquiring of the prorerty in such cases, that he who gets the last right, but the first tradition is still preferred by our Law.  
If he who was once Proprietar does willingly quite his Right, and throw it away, (which the Civil Law calls, pro derelicto habere,) the first finder acquirs a new Right, per inventionem, or by finding it, by which way also men acquire right to Treasures, and to jewels lying on the Shore; and generally to all things that belonged formerly to no man, or were thrown away by them; But it is a general Rule in Our Law, that what belongs to no man is understood to belong to the King.  
Prescription, is a chief way of acquiring Rights by the Civil Law; but because, that Title comprehends many things, which cannot be here understood, I have treated that Title amongst the ways of losing Rights, it being upon divers considerations, modus acquirendi & amittendi.  
We also acquire Right to the Fruits of those things which we possess, bona fide, if these Fruits were gathered in or uplifted, and consumed by us, whilst we thought we had a good Right to the thing itself, for though thereafter our Right was found not to be good; yet the Law, judged it unreasonable to make us restore what we looked upon as our own; when we spent it, and therefore, whenever this bona fides ceaseth, which may be several ways, especially by intenting an action at the true owner's instance, we become answerable for these Fruits; though thereafter they be percepti & consumpti, by us.   

Tit. II. Of the difference, betwixt Heritable, and Movable Rights.  
HAving in the former Title cleared, how we acquire Rights, we come now to the division of them.  
The most comprehensive division of Rights amongst us, is, that whereby they are divided into Heritable, and Movable Rights.  
Heritable Rights in a strict sense, are only Lands, and all sums of money, and other things which can be moved from one place to another are movable but that is only counted Heritable in a Legal Sense, which belongs to the Heir, as all other things which fall to the Executor are movable, and so sums of money, albeit of their own nature they are movable; yet if they were lent for Annualrent they were of old repute heritable.  
For understanding whereof it is necessary to know that albeit by the Cannon Law all Annualrents were forbidden, as being contrare to the Nature of the thing, money being barren of its own nature: yet the reformed Churches do generally allow it; nor were the jews prohibited to take Annualrent from Strangers.  
Before the year 1641 all Bands, and sums, bearing Annualrent, were Heritable, as to all effects so that the Executor, who is Haeres in mobilibus, had no interest in, nor share of such Bands, but they belonged entirely to the Heir; but that Parliament finding that the rest of the Children, beside the Heir had no provision by Our Law, except an equal share in the moveables, they therefore ordained that all Bands for sums of money should be movable, and so belong to the Executors; except either the Executors, were secluded, or the debtor were expressly obliged to infest the Creditor, which is likewise renewed since the King's Resturation 
* K. C. 2 Par. 1. Act 32. : For in these cases, it was clear that by the distination of the defunct, (which is the great Test in this case) these sums were to be Heritable; and yet all sums bearing Annualrent, are still Heritable in so far as concerns the Fisk, or the Relict; so that if a band bear Annualrent, to this day the Fisk cannot claim any right to it, as falling under the Rebel's single Escheat, (whereby when he becomes Rebel all his Movables fall to the King;) nor has the Relict any right to a third of it, as she has to a third of all moveables, the Law▪ having presumed that Relics will be still sufficiently secured by their contracts; but whether the sum be Heritable, or movable, all the bygone Annualrents, and generally all bygones' are movable, as to all intents and purposes, and so fall to Executors, and to the Fisk, and to the Relict; because bygone rests are looked on as money lying by the debtor, they being already payable, as all obligations bearing a tract of future Time belong to the Heir.  
So far does the Law defer to the will of the Proprietar, in regulating whither a sum should be Heritable, or Movable; (the Law thinking that every man is best judge how his Estate shall be bestowed;) that if a man destinate a sum to be employed upon Land or Annualrent, this destination will make it Heritable, and to belong to his Heir; or though the sum was originally secured by a movable band, yet it may become heritable by the creditors taking a superveening heritable security for it, or by comprising for his security; but yet the Creditors design is more to be considered, than the supervenient right; as for instance, a sum may be movable ex sua natura, and yet may be secured by an heritable surty; as in the case of bygone annualrents, due upon infeftment of annualrent, which are unquestionably movable of their own nature, and yet they are heritably secured; and even Executors may recover them by a real Action of poinding of the ground: And, if a Wedset bear a provision, that notwithstanding of Requisition, the Wedset shall still subsist, the requisition will make the sum movable, though it continue secured by the Infeftment; as also, sums ab initio Heritable, may be secured by an Accessary movable security, without altering their Nature; as for instance, if one take a Gift of Escheat for securing himself in Heritable sums; this does not alter the Nature of the former Heritable Right.  
Though a sum be Heritable, yet if the Creditor to whom it is due require his money, either by a charge or requisition it becomes movable, for the Law concludes in that case, that the Creditor designs rather to have his money, than lying in the Debtors hands upon the former security; and if it were lying in money beside him it would be movable: and a requisition to one of the Cautioners will make it movable, as to the Principal and all the other Cautioners; But a charge on a band wherein Executors are secluded, will not make the sum movable, for the design of the Creditor is presumed to continue in favours of the Heir, till the sum be paid, or the Band innovated; but it has been otherways decided of late; And for the same Reason a requisition used by a Wife, who has a heritable sum, that falls not under the Ius Mariti, will not make it movable, since it is presumed she designed only to get payment, but not to give it to her Husband.  
But if the Creditor who required his Money take annualrent after that Requisition, it is presumed that he again altered his Inclination and resolved to have it Heritable, & to continue due by virtue of the first Security  
Though a Band be heritable, as bearing annualrent, yet before the term of payment it is movable, as to all persons.  
From all which it is clear, that some sums are movable as to the Executor, but not as to the Fisk or Relict, and some may be movable, as to the Debtor and his Executors, and yet may be Heritable as to the Creditor and those representing him, as for instance, an obligation, to employ a sum due by a movable band, upon Land or annualrent for the Heirs of a Marriage, that sum as to the Creditor would be heritable, yet quo ad the Debtor it would remain movable.   

Title III. Of the Constitution of Heritable Rights, by Charters and Seasins.  
HAving treated in the former Chapter of the difference betwixt Heritable and Movable Rights, it is now fit to begin with Heritable Rights as the more Noble.  
Our Heritable Rights are Regulate by the Feudal Law, by which Feudum, which we call a few was defined to be a free and Gratuitous Right to Lands made to one for service to be performed by him: he who grants this Few, is in Our Law called the Superior, and he to whom it was granted is called the Vassal; the Superiors Right to the Fie is called Dominum directum, and the Vassals Right is called Dominum utile, and if that Vassal dispone the Land to be holden of himself, then that other Person who receives that Few, is called the sub-Vassal; whereas the Vassal who granted the Few becomes the immediate Superior to this sub-Vassal, and the Vassals Superior, becomes the Sub-vassals mediate Superior, and is so called because there is another Superior interjected betwixt him and the sub-Vassal.  
The Superior dispons ordinarily this Few to be holden of him by a Charter and Seas●n: The Charter is in effect the disposition of the Few made by the Superior to the Vassal, and when it is first granted, it is called an Original Charter or Right, and when it is renewed it is called a Right be progress, and proceeds either upon Resignation when the Lands are Resigned in the Superiors hands for new Infeftment, either in favours of the Vassal himself, or of some third party, or by confirmation, when the Superiors confirms the Right formerly granted, and if it is to be holden from the Disponer of the Superior that is called a me, and is a public Right, and is still drawn back to the date of the Right Confirmed; But if the Confirmation be only of Rights to be holden of the Vassal, it is called, de me, and is a base Right, the effect of this Charter being to secure against forfeiture or recognition of the Superior, all which are voluntar Rights; but if they be granted in obedience to a Charge upon Apprising or Adjudication, they are necessary.  
If the Charter contains a Clause de novo damus, than it has the Effect of an Original Right, and secures against all Casualties due to the Superior; in which the first thing expressed is for what Cause it was granted, and if it was granted for Love and Favour, Our Law calls that a lucrative cause, or for a Price, and good Deeds, this we call an Onerous Cause.  
The second thing considerable in a Charter, is the dispositive Clause, which contains the Lands that are disponed; and regulariter with us, the Charter will give right to no Lands, but what are contained in this Clause, though they be enumerated in other places of the Charter.  
The third Clause is that wherein is expressed the way how the Lands are to be holden of the Superior, and this is called the Tenendas, from the first word of the Clause.  
The fourth Clause, is that which expresses what the Vassal is to pay to the Superior, and this duty is called the Reddendo, because the Clause whereby it is payable begins, Reddendo inde annuatim.  
The fifth Clause, is the Clause of warrandice, which is either Personal, or Real, Personal warrandice is when the Author or disponer is bound personally, and is either simple warrandice, which is only from subsequent and future deeds of the Granter; and this warrandice is employed in pure donationes; or secundo, warrandice from Fact and Deed, which is, that the Granter hath not done, or shall not do any deed prejudicial to the right warranded. Or Tertio, Warrandicè is absolute, and that is, to warrant against all mortals: And in absolute warrandice, this is a rule that an Adequate Onerouse cause presums still absolute warrandice; But absolute warrandice in Assignations imports only that the debt is truly due, and not that the Debtor is solvent.  
All Rights Granted by the King are presumed to be Donations, and import no warrandice.  
Real warrandice, is when Infeftment of one Tenement is given in security of one another.  
The Effect of warrandice is, that if the thing warranded be taken away, there is competent to the party, to whom the warrandice is granted, an action of eviction, for relief.  
Because Tradition is requisite to the completing of all Rights; therefore the Charter contains a Command by the Superior to his baily; to give actual state and Season, to the Vassal, or to his Attorney by Tradition of earth and stone, and this is called the precept of Season, and upon it the Vassal, or some other person having a Procuratory from him, gets from the baily earth and stone delivered, in presence of a Notar and two witnesses, which Notar writes out an Instrument upon all this, which Instrument is called the Season. And if the Superior gives Season himself, it is called a Season, (propriis manibus;) so that a Formal Season is the Instrument of a Notar, bearing the delivery of earth and stone, or some other Symbols by the Superior, or his Bailie to the Vassal, or his Attorney, the Tenor whereof is known and fixed, and now by a late Statute the witnesses must subscrive the Instrument 
* K. C. 2 Par. 3. Act 5. ; and thus the Vassal stands Infest in the Land by Charter and Season.  
This Season being but the assertion of the Notar, proves not▪ except the warrant of it, that is to say, the precept or disposition whereon it proceeded be produced; But a Season given by a Husband to his Wife, or by a Superior to his Vassal, propriis manibus, (that is to say, by the Granters own hands without a Precept) is sufficient, when the Competition is with the Granters own Heirs; or with no more solenin Rights, and is not exorbitant: and after forty years, there is no necessity to produce either precept of season, or procuratory of Resignation by a special statute 
* K. J. 6. Par. 14. act 214. .  
This Season must be registrated within 60. days, either in the general Register at Edinburgh or in the particular Registers of the Shire; Stewartry or Regality where the land lies, 
K. J. 6. Par. 22. Act 16.  else the right will not be Valid, against a singular Successor; that is to say, if any other person buy the Land, he will not be obliged to take notice of that Season; but the Right will still be good against the Granter and his Heirs.  
If Lands lie Discontigue, every Tenement must have a special Season; except they be unite in one Tenement; and then one Season serves for all; if there be a special place expressed, where Season should be taken; but if there be no place expressed; then a Season upon any part will be sufficient, for the while, Contiguous Tenements, (these being naturally unite;) but will not be sufficient for Lands, lying discontigue; And one Season will serve for all Tenements, of one kind; but where they are of several kinds; as Lands, Milnes, etc. they will require several Seasins; The symbols of Possession being different; for Lands pass by the Tradition of earth and stone, and milnes by the clap and happour.  
Sometimes Lands are erected into a barony, (the nature of which is explained before▪ Tit. Inferior judges,) and whensoever this is granted, Union is employed as the lesser degree.  
Erection in a Barony can only be by the King, and is not▪ Communicable by any Subaltern rights, albeit the whole Barony be disponed; though the Union may be thereby Communicate. This union can only be granted by the King, which he may grant either Originally, or by Confirmation; and being so granted it may be Transmitted by the Receiver to a Sub-Vassal; but if a part of the lands united be disponed, the whole union is not dissolved, but the Part disponed only; and this Union, and all other privileges, and provisions, can only be granted in the Charter; but not in the Season.   

Tit. IU. Of the Several Kind's of Holding.  
THe first division of Feus' from the several kinds of holding, is that some lands, hold ward, some Feu, some Blench, and some Burgages.  
For understanding ward-holdings, it is fit to know, that at first, all Feus' were Rights granted by the Longobards, and the other Northern Nations, (when they conquest Italy) to their own Soldiers for service to be done in the Wars; and therefore Ward-holding which is the properest holding, is called servitium militare, and all Lands are therefore presumed to hold ward▪ except another holding be expressed; and servitium debitum & consuetum, is interpret to be ward-holding.  
The advantages arising to the Superior, by the speciality of this holding, are that the Superior has thereby the full meals, and duties of the ward-Lands, during the years that his Male-Vassal is Minor 
* Q. Ma Par. 3. Act 5. K. Ja. 6. Par: 2. Act ●2. ; for the Feu being given originally to the Vassal, for Military service, it returns to the Superior, during Minority; because the Law presumes, that the Minor is not able to serve his Superior in the Wars, but in Female-Vassals, this casuality lasts only till 14. years complete; because, they may then marry husbands, who may be able to serve the Superior, and this properly is called the Casuality of ward; for Marriage, is due in other holdings, as shall be cleared in the next Title.  
Feu holdings, is that whereby the Vassal is obliged to pay to the Superior a sum of money yearly, in name of Feu-dutie nomine feudi firmae.  
This holding has some Resemblance to the (Emphyteosis) in the Roman Law; but is not the same with it; for Emphyteosis was a perpetual Location, containing a pension, as the hire which was granted, for Improving and Cultivating Barren ground; but our Feu-holding, comes from the Feudal Law, (whereof there was no Vestige in the Civil Law,) and passes by Infeftment to Heirs.  
Blench-Holding, is that whereby the Vassal is to pay an Elusory duty, merely for acknowledgement, as a penny, or a pair of Gloves, nomine albae firmae, and ordinarily it bears, si petatur tantum.  
These Blench duties are not due, whether they be of a yearly growth, or not; except they be required yearly by the Superior 
* K. J. 6. Par. 18. Act 14. , as for instance, if the Blench duty be yearly Attendance at such a place▪ or a Rose yearly, the Superior can seek nothing for his blench duty, except he required the same within the year.  
Burgage-holding, is that duty which burgh's Royal are obliged to pay the King, by their Charters, erecting them in a Burgh Royal, and in this the Burgh is the Vassal, and not the particular Burgesses, and the Bailiffs of the Burgh are the King's Bailiffs; nor can Season in Burgages Lands, be given by any other than the baily, and Town Clerk 
‡ K. J. 6. Par. 1. Act 27. , if the Town have any and they must be Registrated in the Town Clerks Books 
* K. C. 2 Par. 3. Act. 11. .  
Before the Reformation there was another kind of holding in Scotland, which was of mortified Lands, granted to the Church, and the only Reddendo, was prayers, and supplications, in behalf of the Mortifiers.   

Title V. Of the Casualties, due to the Superior.  
THe Feu being thus Stated by the Superior, in the person of his Vassal, it will be fit in the next place, to consider, what right the Superior retains, and what Right the Vassal acquires by this constitution of the Fie.  
The Superior retains still dominium directum in the Feu, and the Vassal has only dominum utile; and therefore the Superior is still Infeft aswell as the Vassal; but the King needs not be Infeft; for he is Infeft jure Coronae, that is to say, his being King, is equivalent to an Infeftment.  
The Superior has different advantages, and Rights, according to the different manner of holdings, and there are some Rights and Casualties common to all holdings.  
Ward-holdings, gives the Superior a Right, to the meals, and duties of his Vassal Lands, during all the years that his Vassal is Minor; and this is properly called the casuality of ward; but the Superior, or his donatar, are obliged to entertain the Heir; if he have no other Feu, or Blench, Lands, and to uphold the house, parks, etc. in as good condition as they found them; and must find caution for that effect 
* K. J. 4. Par. 3. Act 25. K. Ja. 5. Par. 4. Act 15. .  
If the Vassal sells, or dispones the half of his ward-lands, to any except his appearand Heir, who is alioque successionae, without the consent of his Superior, the whole ward-Lands fall to the Superior, for ever; and this we call 
* Stat: Rob. 3. cap. 19  Recognition, which is introduced to punish the ingratitude of the Vassal, who should not have disponed the Superiors Lands, without his own consent; and to shun this, the Vassal in ward-Lands gets the Superiors confirmation, before he takes infeftment; for if he takes infeftment before he be confirmed, the lands recognosce, as said is; except the season be null in itself; since the Vassal shows sufficiently his ingratitude by the very taking of the Infeftment: And though the Vassal at first did not sell the half without the Superiors consent; yet, if he thereafter sells as much as will extend to more than the half of the Feu, the first huyer will likewise lose his Right, if it was not Confirmed before he took infeftment.  
Not only a Confirmation, or Novodamus, (if it express Recognition) but the Superiors accepting service, or pursuing for the casualties, are a passing from the Recognition; because, they infer the Superiors acknowledgement of the Vassals Right.  
Recognition takes place in taxt-ward, as well as simpleward, but in no other manner of holding; except the same be expressly provided in the Vassals Charter, for ward-holding, is presumed to be the only proper Feudal Right.  
If the Vassal denyeth the Superior, he losses his Feu, and this is called, disclamation 
* Stat: Rob. 3. cap. 18. Reg: Majest. lib. 2. cap. 63. Par. 6. & 9 ; but any probable ground of ignorance will take off this Forfeiture.  
If the Vassal who holds Ward-Lands dies, having an Heir unmarried, whether minor, or major, the Superior gets the value of his Tocher; though he offer him not a Woman to be his Wife; but if the Superior offer him his Equal, for a Wise, and he refuses to accept, (though he never Marry any other person;) the superior gets the double of his tocher, and one of these casualties is called the single Avail of the Marriage, and the other, the double Avail of the Marriage; but the modification of this is referred to the Lords of Session, who consider still what was the Vassals free rent, all debts deduced, and the ordinary modification is about two years' rent, of the Vassals free Estate; even though the Heir was an Heretrix, and though there were more Heirs Portioners, there will only one avail be due for them all.  
Though this Casuality of Marriage; be still due in all ward-holdings; yet they may be due by express paction in other holdings, and there are many in Scotland, who hold their Lands Feu, cum maritagio; and in both cases, the Marriage is debitum fundi.  
Though as to the casuality of ward, every Superior has Right to the ward Lands holding of himself where the Vassal holds ward-Lands, of more Superiors; Yet the casuality of Marriage falls only to the eldest Superior; because there cannot be more Tochers than one; and he is the eldest Superior from whom the Vassal had the first Feu; but the King is still presumed to be the eldest Superior; because, all Feus' originally flowed from him.  
It is thought that the Reason why this Casuality is due, was, because it was not just, that the Vassal should bring in a stranger to be Mistress of the Feu, without the Superiors consent; for else he might choice a Wife out of a Family that were an enemy to the Superior; but I rather think, that both ward, and Marriage, proceeded from an express paction, betwixt King Malcome Kenmore and his Subjects, when he first Feved out the whole Lands of Scotland, amongst them; as is to be seen in the first of his Statutes 
* Leg. Mal. cap. 1▪ .  
The special duty arising to the Superior in a Feu holding, is, that the Superior gets a yearly Feu duty paid to him, and if no part of this Feu duty be paid for two years, even though the whole was offered; or though the Vassal was minor, than the Vassal loses his Feu, ob non solutum Canonem; for the Feu duty, is called Canon; and if this provision be expressed in his charter, he will not be allowed to purge this irritancy, by offering the bygones at the Bar; but though this provision be not expressed in the charter, yet the feu will be annulled for not payment of the Feu-dutie, by an express act of parliament 
* K. J. 6. Par. 15. act 226. ; but the Vassal in that case will be allowed to purge at the bar, and the reason of this difference is; because the express paction is thought a stronger Tie than the mere statute.  
A clause irritant in Our Law, signifies any provision, which makes a penalty to be incurred, and the Obligation to be null for the future; as here, where the Superior gives out his Feu upon express condition, that if the Feu-dutie be not paid, the Feu shall be null, and reduceable, and a clause resolutive, is a provision, whereby the Contract to which it is assixt, is for not performance, declared to have been null from the beginning.  
The Casualties that are due, by all manner of holdings, and which arise from the very nature of the feu, without any express paction, are None-entry, Relief, and Liferent Escheat.  
None-entry, is a casuality whereby the Superior has right to the Meals and Duties of the Lands, when there is not a Vassal actually entered to him, and the reason why this is due to him, is, because, he having given out his Feu to his Vassal or service, when there is no actual Vassal entered, the Law allows him to have recourse to his own Feu, that he may therewith provide himself with a Vassal, who may serve him; but though the full Rents of the Lands be due to the Superior, from the very time that he citys his Vassal, to hear, and see, it found and declared, that the Land is in None-entrie; yet before that citation, the Superior gets only the retoured duties; and the reason of the difference is; because after citation, there is a greater contempt than before, and so is to be more severely punished.  
For understanding which retour duty, it is fit to know, that there was of old, a general valuation of all the Lands of Scotland, but thereafter▪ there was a new valuation, the first whereof is called the old, and the second, the new Extent, and both are called the Retour duty, because they are expressed in the Retour, (or Return) that is made to the Chancellary, when an Heir is served; but both are very far below the Value, to which Lands are now improved, though in Our Law, the new extent be constructed to be the Value.  
But in an infeftment of annualrent, the whole annualrent is due, as well before declarator, as after; because the annualrent is the retoure duty, it being retoured, valere seipsum; and that is called an infeftment of annualrent, when the Vassal is not infeft in particular lands; but is infeft in an yearly annuity of money, to be paid out of the lands, as for instance, if a man should be infeft in the sum of five hundred marks yearly, to be payable out of any particular Lands, being worth 5000. marks yearly, how soon the Vassal who had right to the 500 marks died, the Superior would have right to the whole 500 marks yearly, until the Heir of the Vassal be entered. vide infra Tit. Servituds, § annualrents'.  
There is no Nonentry due in Burgages Lands; because the Burgh itself is Vassal, and never dies, and so therefore, neither does the Burgh nor any private Burgess pay nonentrie, the duty payable by a Burgh, being only by Watching and Warding.  
When the Vassal enters, he pays an acknowledgement to the Superior, which is called, relief, because it's paid for reliving his land out of the Superiors hands. It is debitum fundi, and affects not only the ground really, but the Vassal Personally, who takes out the precept for infefting himself; though he never takes infeftment thereupon.  
The value of this Casuality varies, according to the nature of the holding, for in Blench and Feu holdings, it is only the double of the Feu or Blench duties; but in Ward-holdings, it is the full duty of the land; if the Superior be in possession, the time of the Vassals entry; but if the Superior was not in possession; though the Vassal was minor, or if the Vassal be major, before his Predecessor die, than the Superior gets only the retour duty; and it is so far from being presumed to be remmitted by the Superiors entering his Vassal; that it is still exacted; though it be gifted with the other Casualties.  
For understanding Life-rent Escheates, it is fit to know; that when any man does not pay a debt, or perform a deed conform to his Obligation, his Obligation is Registrated; if it carry a consent to the Registration in the body of it; or if it do not, there must be a sentence recovered, and upon that Registrated writ, or decreet, (for a Registrated writ is a decreet in the Construction of Law) there will be Letters of horning raised, and the Party will be charged, and if he pay not within the days allowed by the charge, he will be denounced Rebel, and put to the Horn, and from the very day of the denounciation, all his moveables falls to the King by a casuality, which is called, single Escheat; but now single Escheates fall likewise to Lords of Regalities, if the persons denounced live within a Regality, because the King has gifted all single escheates when he erected those Regalities.  
If the Vassal continue year and day Rebel, without Relaxing himself, (which Relaxation is expede by Letters under the King's signet, expressly ordaining him to be relaxed from the Rebellion;) then he is esteemed as Civilly dead; and consequently not being able to serve the Superior, the Law gives the Superior the meals and duties of his Feu, during all the days of the Vassals life; and this casuality is called Liferent Escheat; so that every Superior aswell as the King, has right to the meals, and duties of the lands holden of himself 
* K. J. 5. Par. 4. Act 32.  if his Vassal was once infeft; and even though he was not infeft; if he was appearand Heir, and might have been infeft; for his lying out should not prejudge his Superior; but if a man have right by disposition, whereupon no infeftment followed, the King only will have right to his Life-rent Escheat, as he has for the same reason to the Manses and Gleebs of Ministers, when they are Rebels; since they are not infeft in these; but all heritable and Life-rent Rights, requiring no infeftment of their own nature, such as a terce, and Liferent-tacks fall not to the King, and the Life-rent tacks fall to the Master of the ground, and the Life-rent by Terce pertains to the Superior during the Liferenters Life-time 
* K. J. 6. Par. 22. Act 15. .  
This Life-rent Escheat comprehends only Rights, to which the Vassal himself had right for his Life-time; for else it will fall under single Escheat; (single Escheates comprehending every thing that is not a Life-rent Escheat;) and therefore, if the Superior having right to the Vassals Liferent Escheat, become Rebel himself, the Vassals Liferent Escheat will fall under the Superiors single Escheat, for the Superior had not right to those meals and duties during all the days of his own Life-time; and so it could not fall under his Liferent, and the like, does for the same reason hold in all such as have assignations to Liferents, or to Liferent Escheats, or to Tacks for any definite number of years, few or many.  
The Superior has also right to the Sub-Vassals Liferent Escheat, which falls after the Vassals denounciation, for by the denounciation of the immediate Vassal, the Superior comes in his place; and so has right to the sub-Vassals Liferent.  
The Liferent Escheat falls by the Rebellion, that is to say, by the denounciation; and the year and day, is given only to the Rebel to relax himself, so that if he relax not within that time, his Liferent will fall from the denounciation.  
In competition betwixt the Superior of the Rebel, and the Rebel's Creditors, these Rules are observed in our decisions.  
Primo, No Legal Diligence, nor Voluntar right for payment of any debt contracted, after Rebellion, will prejudge the Superior; for else after a Vassal were at the horn, he might fraudulently contract debt to prejudge the Superior.  
Secundo, If the debt was prior to the denounciation, no voluntar infeftment will prejudge the Superior; except the Rebel was obliged prior to the Rebellion, to grant that infeftment, and that the infeftment itself was expede within year and day of the denounciation.  
Tertio, Though Legal Diligence be more favourable than voluntar rights; because there is less collusion, yet no legal diligence will be preferred to the Superior; except it was led for a debt prior to the denounciation, and was completed by infeftment, or charge, within year and day, thereof; albeit the said Legal diligence was deduced after the denounciation.  
Though this be the course in competitions, quo ad liferent Escheates; yet actual payment made, or diligences done to, or by Creditors for payment of debts, prior to the Rebellion, or the commission of crimes, will be preferred, to the donator; if these Rights or Diligences be completed before declarator, which we owe rather to the benignity of our Kings, than to the Nature of these Rights, since there is jus questitum fisco, by the denounciation.  
Liferent Escheates is proper to all kinds of holding; except Burgages, and mortification; for the Vassal being a Society or Incorporation dies not, and so can have no liferent Escheat; and albeit the administrators were denounced for debts due by the Incorporation; yet that is still presumed to be their Negligence, which ought not to prejudge the Society:  
For completing this Casuality a general Declarator must be raised at the Superior or Donators instance, to hear and see it found and declared, that the Vassal was orderly denounced Rebel, and has continued at the Horn year and day. And in a competition betwixt Donators, the last gift if first declared, will be preferred.  
If the gift be taken to the behoove of the rebel, it is null, and is presumed to be to his behoove, if he or his Family be suffered to stay in possession.  
The last Privilege of the Superior is, that he may force his Vassal to exhite his Evidents, to the end he may know what is the nature of the holding, and in what he is liable to his Superior, which proceeds ordinarily by an Action of Improbation.   

Title VI Of the Right which the Vassal acquires by getting the Feu.  
THE Vassal by getting the Feu settled in his Person, by Charter and Season, as said is, has right to all Houses, Castles, Towers, (but not Fortalices;) Woods, and other things that are above ground of the Lands expressly disponed; and to Coals, Limestone, and other things within ground, and to whatever has been possessed, as part and pertinent of the Land past memory of Man: But there are some things which pass not under the general dispositive words, and require a special Disposition, which belong to the King, in an eminent way, and are called therefore Regalia, and are not presumed to have been disponed by his Majesty, or any other Superior; except they were specially mentioned, such as are all jurisdictions, Forests, Salmond-fishings, Treasures hid within the ground, and Gold, Silver, and Fine-lead; for other Mines, such as Iron, Copper, etc. belong to the Vassal.  
If Lands be erected in a Barony by the King, then though the lands lie discontiguously, one season will serve for them all, because, Barony implies an union.  
This erecting them in a Barony, will likewise carry a right to jurisdictions, and Courts, Fortalices, Forests, hunting of Deer, and Ports, with their small Customs, granted by the King, for upholding these Ports, Milnes, Salmond-fishings, etc. because; Barronia est nomen universitatis, and possession of any part of a Barony is repute possession of the whole; But Ours of Gold, and Silver, 
* K. J. ●. Par. 1. act 12.  Treasures, and goods confiscate, are not carried with the Barony.  
The Heritor has also power to set Tacks, remove, and in-put Tenants, as a consequence of his property.  
A Tack is a Location, or contract, whereby the use of any thing is set to the Tacksman, for a certain hire, and in Our Law it requires necessarily, that the terms of the Entry, and the Is, must be expressed, that is to say, when it should begin and end, and it must bear a particular duty, else it is null; and if it be a valid Tack, that is to say, if Write be adhibit, (verbal Tacks being only valid for one year) to the thing set, the Contracters names, Tack-duty, Ish, and Entry, clearly therein expressed, and clothed with possession, it will defend the poor Tacksman, against any Buyer *; and even against 
‡ K. J. 2. Par. 6. Act 17  the King and his Donators, when they succeed by forfeiture, which was introduced in favours of poor Tenants, for encouraging them to improve the land; but it will not defend against a Superior of ward lands, for the ward, etc. though by Act of Parliament, the Superior be obliged, to continue them in their possession till the next term of Whitsonday 
* K. J. 4. Par. 3. act 26. .  
Albeit Tacks have not all the solemnities foresaid; yet they are valid against the Granter and his Heirs.  
Tenants cannot assign their Tacks; except they be Liferent Tacks; or that the Tack bear a power to assign; but they may be comprysed, or adjudged; and if the Master suffer the Tacksman to continue after the Tack is expired, he will be obliged to pay no more than he paid formerly during the Tack; and this is called in Our Law, the benefit of a tacit Relocation, that is to say, both the Setter and the Tacks-man, are presumed to design to continue the Tack upon the former terms, till the Tennent be warned.  
If the Tack be granted to sub-tennents; then the Tacks-man may set a sub-tack, which will be as valid as the principal Tack, if clad with possession.  
Rentals are also a kind of Tacks; but more favourable and easy; because the Rentaller and his Predecessors have been Ancient Possessors, and kindly Tenants, and he pays a Grassume, or acknowledgement at his entry, and yet they last no longer than for a year; if there be no time expressed; and if they be granted to a man and his Heirs, they last only to the first Heir; for else they behoved for ever to belong to the Heirs; and so would want an Is; but no Tack is accounted a Rental; except it be in write, and the write bear the same.  
Rentals cannot be assigned, except that power be granted in the Rental; and if the Rentaler assign, he loses his Rental; though a Tacksman Forfeits not his Right, by assigning it, the assignation being only null.  
When the years of the tack expyre; or though there be no Tack; yet the Master cannot Summarily remove his Tennent, or Possessor except from Liferented Lands, and Houses, or Towers, and Fortalices, and vicious Possessors whom he can remove by a summons on six days; but in all other cases he must warn him, 40 days, before the term of Whitsonday; though the term at which he were to remove, by paction, were Martinmass, or Candlemass; which warning must be executed, that is to say, intimated personally to the Tennent, and upon the ground of the lands; and at the Parish Kirk, immediately after Sermon, and if he than refuses, he must be pursued to remove upon six days, and after this citation, the Master will get against him violent profits; that is to say, the double of the avail of the Tenement within Burgh, and the highest advantages that the Heritor could have got, if the Tennent possessed lands, in the Country; nor will the Tennent be allowed to defend against this removing; till he find caution to pay the violent profits 
* Q. Ma Par. 6. Act 39 .  
The Master has likewise a Tacit Hypotheque in the fruits of the ground, which he sets to his Tennent, in so far as concerns a years duty, that is to say, they are impignorat by the Law, for that years duty, and he will be preferred either to a Creditor, who has done diligence, or to a stranger who has bought them; though in a public mercat: And a Landlord within Burgh, has a tacit hypotheque in all the goods brought in to his House, by his Tennent, which he may retain, a●, and while he be paid of his years rend.   

Title VII. Of Transmission of Rights, by Confirmation, and of the difference betwixt Base, and Public Infeftments.  
THE Fie being thus Established in the Vassals person, the same may be Transmitted, either to universal, or singular Successors, the first is properly called Succession, which shall be handled in the third-Book. Transmission of Rights, to singular Successors, is voluntar by disposition, and assignation, or necessary by apprising, and adjudication, and Consiscation, when they are forefaulted for crimes, etc.  
If the Vassal sells the Land, the Superior is not obliged to receive the Sub-Vassal except he pleases, though the charter bear, to him and his assignies; and if he receive him, there is in Law, a years rend due to the Superior, as an acknowledgement for changing his Vassal.  
Lands are disponed, either to be holden of the disponers Superior, and that is called a public Infeftment; because, it is presumed it will be publicly known, being holden of the Superior; and it is likewise called an Infeftment, a me; because, the disponer gives it to be holden a me, de Superiore meo, and this Infeftment is null until it be confirmed 
* K. J. 6. Par. 5. Act 66.  by the Superior, which is done by a Charter of Confirmation, wherein the Superior narrates the Vassals Charter, and subjoins thereto his own Confirmation or Ratification of it, and the last right being first confirmed is still preferred.  
Sometimes also the Vassal Dispones Lands to be holden of himself, and this is called, a base infeftment, and has been allowed by Our Law, contrare to the principles of the Feudal Law, in Favours of Creditors, who getting right for payment of their debts, were unwilling to be at the expenses to get a Confirmation from the Superior, and this is called, an infeftment, de me; because, the Disponer gives them tenendas de me, & successoribus meis.  
These base infeftments being clothed with possession, are as perfect, and valid, as a public infeftment; for possession, is to an infeftment to be holden of the Disponer, the same thing that confirmation is to an infeftment to be holden of the Superior; and therefore, as in a Competition betwixt two infeftments of the same Land, to be holden of the Superior, the first confirmation would be preferred, it being a general rule in Law, that amongst Rights of equal perfection, prior in tempore est potior in jure; so if a base infeftment be clothed with possession before the public infeftment be confirmed, the base infeftment will be preferred; though it was granted after the public infeftment.  
For the better understanding of the nature of base infeftments, it is fit to know, that possession is in Law natural, or Civil, that is Natural possession, by which a man is Naturally, and Corporally in possession, as by labouring of the ground; but because sometimes men could not attain to the Natural possession, for clothing their Right, therefore the Law was forced to allow another possession by the mind, as that was by the body, and this is called, Civil possession; because it is allowed, and introduced by the Civil Law, of which there are many kinds in Scotland; As,  
Primo, The obtaining Decreets for Meals and Duties, and even citation upon an heritable Right.  
Secundo, Payment of annualrent, by the debtor to the Creditor who has infeftment of annualrent.  
Tertio, If a man be infeft in lands, and for warrandice of these lands be infeft in other lands, possession of the principal lands, is reputed in the construction of Law, possession of the warrandice lands.  
Quarto, If a Woman be infeft by her Husband in a life-rent, the Husband's possession is accounted the Wife's possession.  
Quinto, If a Man dispone lands, reserving his own liferent, the Liferenters' possession is accounted the Fiars possession; and a base infeftment is said to be clothed with possession; if he who is infeft hath attained either to Natural or Civil possession; for the Law cannot punish a Man for not apprehending possession, who could not apprehend it; and for the same reason, if the time of Entry was not come, he who is infeft by a base infeftment, will be preferred in that case, as if he were in possession; and the reason of all this is, because Our Law considering, that base infeftments were clandestinely made, betwixt confident, and conjunct persons, to the ruin of lawful Creditors, who could not know the same; there being then no Register of Seasins; it therefore declared all base infeftments to be simulat, which were not clothed with possession; and therefore before the term, at which he who got the base infeftment could enter to the possession, there could be no Simulation, nor fraud, in no party; and in this the Law considers much the interest of lawful Creditors, by sustaining that kind of possession in their favours, which would not be sustained in favours of near Relations; or where there is no Onerous cause; and thus a base Infeftment given be the Father, to his own Son, will not be clothed with possession, by the reservation of the Father's liferent, though the reservation of the Father's Liferent would clothe a base infeftment granted by him to a lawful Creditor; and the Husband's possession is accounted the Wife's possession, in so far as concerns her principal jointure; but not in so far as concerns her additional jointure, in a competition betwixt her and her Husbands lawful Creditors.  
Sometimes likewise, for the more security a base infeftment, which is given to be holden of the Disponer, will be confirmed by the Superior; but that Confirmation does not make it a public infeftment; for no infeftment can be called a public infeftment; but that which is to be holden of the Superior; but the use of that Confirmation is, that after the Superior has confirmed voluntarly the sub-Vassals Right, he thereby acknowledges his Right; and consequently, can seek no Casuality, which aryses upon want of the Superiors consent, such as Forfeiture, or Recognition; But because the Disponer is still Vassal, therefore his Superior will still have right to the Rents of the Lands, by his life-rent Escheat, and to Wards, and None-entries by his death; but if the Superior enter the sub-Vassal only upon a Charge, (this being no voluntar act of his,) that does not cut him off from those casualties.  
Sometimes likewise, the Seller resigns the Lands in favours of the Superior, if the lands be sold to the Superior himself, which is called Resignatio ad Remanentiam; because the Lands are resigned to remain with the Superior, and in that case, the property is said to be Consolidate with the Superiority, that is to say, the Superior returns to have all the right both of Property, and Superiority; nor needs he be infeft of new; because, as we formerly observed the Superior stands still infeft aswell as the Vassal; but the Instrument of Resignation must be Registrated in this case, as Seasins are in other cases, to put men in mala side to buy 
* K. C. 2 Par. 2. Sess. 1. Act 3.   
The other Resignation, is called Resignatio in favorem, which is when the Seller having sold his Feu to a third party, resigns the Feu in the Superiors hands, for new Infeftment to be given by the Superior to that third party.  
The warrant of both these Resignations is a procuratory granted by the Seller, to a blank Person, (and this warrant is ordinarily inserted in the disposition) impowering him to resign the Feu in the Superiors hands; and this is called a Procuratory of Resignation; and the Symbols of the Resignation are, that it is to be made by Staff and Baston; and accordingly, the Procurator compears before the Superior, and upon his Knee, holding a Staff or Pen at the one end, which the Superior or any having power from him, holds by the other, he there resigns the Feu, either ad remanentiam, or in favorem, as said is; whereupon an instrument is taken by the Person in whose favours the Resignation is made, which is called the Instrument of Resignation; and thereafter the Person in whose Favours the Resignation is made, (if he be not the Superior) is infeft, and his Season must be Registrated within 60. days, as said is.  
The Resignation does not perfectly denude the Seller, until Infeftment be taken upon it; and therefore the first Infeftment, upon a second Resignation will be preferred to him, who has but the second infeftment upon the first resignation; but yet the Lands will be in Nonentrie in the Superiors hand, after the resignation is made, until the person in whose favours it was made be infeft, for otherways the superior would want a Vassal, since he could not call him Vassal who did resign his to be Vassal; And he had accepted of a resignation from him; nor is the Person in whose favours the resignation is made his Vassal; since he is not yet infeft; but yet the buyer has a personal action, against the Superior, to force him to denude himself in his favours; since he has accepted the resignation; and he will likewise have an action of damnage and interest against the Superior; if he accept a second Resignation, whereby a prior infeftment may be taken to his prejudice, and the Superior gets all his Casualties, as Ward, Marriage, Liferent Escheat, etc. not by him in whose favours resignation is made; but by him who resigns, since he remains still Vassal till the other be infeft quoad the superiors casualties.   

Title VIII. Of Redeemable Rights.  
ANother Considerable division of Heritable rights with us, is that some are redeemable, and some irredeemable.  
Redeemable Rights, are these which return to the Disponer, upon payment of the sum, for which these Rights are granted; and are so called; because they may be redeemed by the Disponer; and they are either Wadsets, infeftments of annualrents, or infeftments for relief.  
A Wadset, is a right whereby lands are impignorated or pledged for security of a special sum, which passes by infeftment, (like other real Rights) in the terms of alienation or disposition; and the Disponer does secure himself by getting a reversion from the Buyer, wherein he grants and declares the Lands redeemable from him, upon payment of the sum then delivered, and of the annualrent thereof, which is pactum de retrovendendo; and expresses the place and time when it is to be delivered, and in whose hands it is to be consigned; in case the receiver of the Wadset, (who is called the Wadsetter) refuse to accept his Money.  
These Reversions, being against the nature of property, and depending upon the mere agreement of Parties, are to be most strictly observed; and are strictissimi juris; so that they are not extended to Heirs or Assigneys; except they be expressed, and must be fulfilled in the very terms; and it is not enough that they be fulfilled in equipollent terms: But after an order of redemption is used; that is, after the Granter of the Wadset has duly premonished the Wadsetter, and consigned the sums due by the Wadsetter, it may be assigned; and though the reversion bears that premonition be made at the Parish Church, it will be sustained if it be made personally to the Wadsetter, for that is a surer certioration.  
Reversions, albeit of their own nature they are personal binding, only the Granter and his Heirs, yet they are real rights by our Statutes, and affect singular 
* K. J. 3. Par. 5. Act▪ 28.  Successors.  
They and all Bands to make reversions, or ●ikes to reversions, must be registrated within 60. days in the same Register with Seasins; for else a singular Successor is not obliged to regard them 
* K. J. 6. Par. 22. Act 16. ; so that if any buy the Land irredeemably, and complete his right, he will be preferred; but they are still valid against the Disponer without registration.  
When the Granter of the Wadset, is to use an Order of redemption, he must premonish the Wadsetter to compear, (and take instruments thereupon, called, an instrument of premonition) to receive payment of the sums due to him; and at the time and place appointed by the reversion, offer being made of the Money; if the Wadsetter refuses voluntarly to renounce, and to accept his money, it is consigned in the hands of the person designed in the reversion, or if no person be designed, it may be consigned in any responsal Man's hand; but there must be a paper taken under the Consignatars hand, acknowledging that it was consigned in his hand; for though an instrument under a Notars hand, proves that all this order of redemption was used; yet it will not prove the receipt of a sum against the Consignatar.  
If the Wadsetter receive his Money, and renounce voluntarly, this is called, a voluntar redemption; But, because though renounciations be sufficient to extinguish, they are not sufficient to transmit a right; therefore, if the Wadset was given to be holden of the Disponer, the Wadsetter must resign ad remantiam, in the Disponers hands as his Superior; and thereafter the Disponer needs not to be infeft of new; as no Superior needs; but if the Wadset be given to be holden of the Superior; then the Disponer uses to take a Letter of regress, whereby the Superior obliges him to receive him back to be his Vassal, when he shall redeem his own lands; for otherways after the Wadsetter is seized, the Superior is not obliged to receive him back.  
If the Wadsetter refuses to renounce after the Order is used, the Lords will force him to renounce, and declare the Lands redeemed, by a Process, called a Declarator of Redemption; after which Decreet is obtained, the Lands are redeemed, and belong to the Redeemer; and the Wadsetter will upon a simple charge of horning force the Consignatar to deliver him up the money.  
The user of the Order of Redemption, may pass from it at any time before Declarator; and therefore the sums for which the Wadset was granted, are still heritable before Declarator; but after that they are movable, and fall to Executors; except the Declarator be obtained after the Wadsetters' death, in which case they remain heritable; And though the Wadsetter require his Money, he may pass from his requisition, either directly by a clear Declaration that he passes from it, or indirectly by intrometting with the duties of the Wadset lands, or by taking annualrent for terms subsequent to the requisition.  
Wadsets are either Proper, or Improper.  
Proper Wadsets, are these, wherein the Wadsetter takes his hazard of the rents of the land for the satisfaction of his annualrent; and pays himself all public burdens. Improper Wadsets, are these, wherein the Granter of the Wadset pays the public burdens, and the receiver is at no hazard, but has his annualrent secure. And if a Wadset be taken, so, that the Wadsetter is to have more than his annualrent; and yet the Granter is to pay the public burdens, this is accounted Usury by Our Law; the punishment whereof is confiscation of moveables losing of the principal sum and anulling the usury, contract, or paction 
* K. J. 6. Par. 14. act 222. Par. 15. act 247. ; and by a late Statute, If the Debtor offers security for the Money, and craves possession, the Wadsetter must either quit his possession, or restrict himself to his annualrent 
* King Char. 2. par. 1. Act 62. . And if a Man impignorat his Lands, or Bands, with express condition, that if the Money be not paid at a precise day, they shall not be thereafter redeemable: The Law reprobates this unjust advantage, called, pactum legis commissoriae in pignoribus; and will allow the Money to be offered at the Bar; or they will allow a short time before Extracting of the Decreet for payment of it.  
Taking of annualrent having been discharged by the Cannon Law, men did buy annualrents out of other men's lands, which was the origin of our present infeftments of annualrent, and continues still frequent; by which if mwn resolve not to rest on the personal security of the borrower, they take him also obliged to infeft them in a yearly annualrent, payable out of his Lands correspondent to the sum lent; but if they exceed the ordinarily annualrent allowed by Law, it will infer usury; and so they have a double security, one personal against the borrower for payment, and another real against the ground, it being debitum fundi; for which they may poinded any part of the ground; as also they have good action against the Intrometters with the duties of the lands, out of which there annualrents are payable; though they cannot poinded or exact from the tenants any more than they owe to their master 
* K. J. 3▪ Par. 5. act 37. .  
These annualrents require a special season, like Wadsets, and other real rights; the symbols whereof, if the annualrent be payable in money, is a penny of money; but if it be payable in Victual, it is a parcel of Victual.  
This is singular in infeftment of annualrent, that apprising, thereupon will be preferred to all prior apprising, quoad the bygones, of the annualrent, if the infeftment of annualrent was prior to those apprisings to which the apprising will be drawn back, and preferred to any interveening right, which privilege is continued in the late Act of Parliament, concerning Debtor and Creditor 
* K. C. 2 Par. 1. Act▪ 62. .  
These infeftments of annualrent, being properly granted for security of sums are extinguished not only by resignations, but by renounciations; and even by intromission with as much as might pay the principal sum, which intromission is probable by witness, whether the Rent be victual or money, and therefore singular Successors buying infeftments of annualrent, are not secure by any register but must rest on the warrandice of the Seller,  
Infeftments of relief, are these, which are granted by a debtor to his creditor, for security of sums owing to him, upon which the creditor cannot enter to possession, till he be distressed, and when the sum is paid, the right becomes absolutely null, as being but a temporary right, and so the debtor who granted the right, needs not be of new infeft, but his former right revives.   

Title IX. Of SERVITUDES.  
THE Nature and Constitution of Propertie, and real Rights, being explained in the foregoing Titles. We shall now treat briefly of Servitudes; which are Burdens, affecting Property and Rights.  
Servitudes are either Real, Personal, or Mixt.  
Personal Servitude, is in desuetude amongst Christians; and therefore is not proper to be considered here. Real servitude is whereby one Man's Property, or Ground is affected with some burden, for the use and behoove of another Man; which are divided in Rural servitudes, and City servitudes.  
Rural Servitudes, are Iter, which is, a power of going through our neighbour's land; Actus, which is a power of driving Carts, or Wanes; Via, being the privilege of having high ways in our neighbour's ground; and Aquaeductus, which is a power and privilege to draw Water alongst their ground for watering of our own. Thus Via, includes Iter, and Actus, as the lesser servitudes; so he that has a Via, has also power to drive carts and wanes, and to walk himself through the Ground burdened with the Servitude.  
The City servitudes, called, servitutes Urb●nae, are chiefly five.  
The first, is Oneris ferendi, which is a privilege, whereby one who has a house in the City, can force the Proprietar who has a house below his, to bear the burden of his house; and he may force the Owner of the servient tenement to repair it, and make it fit for supporting the dominant tenement, contrare to the common nature of servitudes.  
Secundo, Tigni immittendi, which is the privilege of forcing our neighbour to receive into his house the jests of ours.  
Tertio, Stillicidii, vel fluminis, which, is whereby our neighbour is obliged to receive the drops which falls from our house, under which, is likewise comprehended the privilege of carrying away our Water by sinks and channels.  
Quarto, Non officiendi Luminibus, whereby he can do nothing that can prejudge our Lights, or prospect.  
Quinto, Altius non tollendi, whereby our Neighbour cannot raise his house higher, to prejudge the lights of the dominant Tenement.  
By Our Law, servitudes may be constitute by write, without any season; because they are incorporeal rights; but though a servitude merely established by write, be sufficient against the granter; yet they are not valid against singular Successors; except that right be clothed with possession, which completes the servitude and makes it a real right; and they may be likewise established by prescription without any write, from him who has the servient Tenement; though he who is to acquire the servitude by prescription, must have some right in his person, either of a special concession, or else must prescrive it, as part and pertinent of his land.  
The ordinary Servitudes superadded by us, to these of the Civil Law, are the servitudes of casting Fail and Divot, common pasturage, and Multures.  
Common pasturage, is a right of pasturing the Goods and cattle of the dominant tenement, upon the ground of the servient, which is constituted frequently by a Charter, containing the clause of common pasturage; and sometimes by a personal Obligement, clothed with possession; but albeit it be indefinite, yet it can reach no further than to the proportion of Goods of the Dominant tenement, which they keep and fodder in Winter; which is done by sowming and Rowming, that is to say, the determining the proportion of goods belonging to each Dominant tenement, according to the several Rowms and rend thereof.  
Common Pasturage in our Law, does ordinarily comprehend all the lesser servitudes; such as the casting of Faill and Divots, presumptively only; for the one may be possessed without the other; nor will common Pasturage infer a servitude of casting of fail and divots if he who possessed the Common Pasturage was interrupted as to the casting of fail and divot.  
Mills, are inter Regalia, and require therefore a special Season; the Symbols whereof are clap and happer; but if the mill be in a Barony transit cum universitate.  
Mills, are ordinarily dispond with multers and Sequels; the Multurs are a quantity of corn, payable to the Heritor of the mill for grinding. The knaveship, Lok, and Bannock, are a small quantity payable to the servants for their pains.  
These quantities, that are paid by those that are thirled, are called, Insucken multurs, and those quantities, that are paid by such as come voluntarly, are called outsucken multurs.  
Thirlages, are constitute by write, or by prescription.  
The ways of constituting thirlage by write, are these;  
First, When a Master thirles his own Tenants, to his own Mill; in which case ordinarily he deminishes the rent of his land, in contemplation of what they are to pay to the Mill, for grinding their Corns, which he does by an act of his own Court.  
Secundo, When an Heritor sells his lands, to be holden of himself, and thirles his Vassal to his Mill; in which case he sells so much the cheaper, and so the multures are just.  
Tertio, When the Heritor of a Mill, dispons his Mill, with the multure of his own Lands; in which case the multures are also just; because he gets so much the more for his mill; and so this servitude is not so odious as it is believed to be.  
Quarto, If a man dispones the mill of a Barony, cum multuris, or cum astrictis multuris; in either of these cases, he thereby astricts his whole Barony; though not formerly astricted; but if he dispone the Mill of the Barony, cum multuris solitis & consuetis; he i● thereby understood to hav● thirled only what was formerly thirled.  
If the thirlage bears omnigrana crescentia, all the Corn growing upon the Land wil● be thirled, with deduction only of seed, and Horse corn, and th● ferme; except it be carried to another Mill, for it is presumed ferms must be sold.  
Quinto, When invecta & illata are thirled, all Corns which those Fire and Water within the astriction, must pay multure though they come not to th● Mill; but being made in Malt are thereafter carried abroad out of the thirl.  
The way of constituting thirlage by prescription, is immemoral, or 40. years' possession, by virtue of some title; such as a Decreet, though in absence; and even when the Master is not called; and any Act of a Baron court, though made only by a Bailie, without a special warrant from the Heritor; and though the coming to a Mill, past all memory, does not astrict the Comers for the future; it being a general rule in all servitudes, that, ea quae sunt merae facultatis non prescribuntur; yet in mills of the King's property, immemorial possession, constitutes a thirlage; and if Men likewise pay dry multures, that is to say, such a quantity, whether they come to grind or not, for 40. years; they will be thereby astricted; for it is not presumable they would have paid dry multure, for so long a time except they had been thirled.  
If the quantity to be paid, be not determined in Write, it is regulated by the use of payment for 40. years.  
Those who are thirled, are also obliged to maintain the mill in its dams, water-gangs, and to bring home its Millstones.  
If such as are thirled, bring not their Corns, they are pursued by an action called, abstracted multures.  
There are two Rules to be observed in all servitudes.  
Primo, Res sua nemina servit, no man can have a servitude on what is his own; and therefore if the Land on which we have a servitude become ours, the servitude is extinguished.  
Secundo, When we have a servitude on any other land, this servitude affects every foot of that land, unaquaeque gleba servit; but this is to be taken civiliter, & non judaice; so that it must be reasonably used; And thus, if we Fen out some Acres, with privilege to the Fever to cast Faill and Divot upon our Moor, for maintaining his houses; though in strict Law, every part of the Moor is affected with the servitude; yet the Lords will allow any man to Tile and Sow his own Moor, leaving such a proportion, as may maintain these houses.  
Mixed Servitudes are partly real, and partly personal; and by the Civil Law are divided in usu fruct, use, and habitation.  
Ususfructus is called liferent in Our Law; which is a right to use and dispose upon any thing during life, the substance thereof being preserved.  
Use and habitation were restricted to the naked use of the Liferenter; whereby his power of disposing and making profit of the thing liferented was restrained; and are not in use with us.  
Liferents are either constitute by paction; or by Law; liferents by paction, are either by reservation; as when a Fire denuds himself of the Fie in favours of another, reserving his own liferent; or by a new constitution; as when the Fire dispons his lands to another, during all the days of his life; the first needs no infeftment; but the second does; else it is not valid against singular Successors; but the liferenter being infeft, transmits' his right to any by assignation without infeftment; for being a servitude and personal right, it neither needs, nor can admit of a subaltern infeftment.  
A Liferenter also by reservation, may enter the heirs of Vassals (though he cannot receive singular Successors) if he was himself infeft; but another liferenter cannot; and even a liferenter by reservation cannot enter those Vassals, if he was not once infeft; because he cannot transmit a right which he has not.  
When more persons are jointly infeft, they are called conjunct Fiars; but though a wife be a conjunct Fire; yet her Fie lasts but during her life; and during her life, she may enter Vassals, and has right also to all the casualties, as other Fiars.  
Liferents by Law, are the Terce, and the courtesy.  
The Terce is a liferent of the third of all the tenements, wherein the husband died infeft, provided be law to a wife, who is not excluded by express paction; or is not provided to as much as will be eqvivalent to the Terce 
* K. C. 2 Par. 3. Act 10. ; which Terce is constituted by an inquest, who upon a brief out the Cbancellary, directed to the Sberriff, or other judge ordinary, do serve her to a Terce; upon which service, the judge to whom the brief was directed without retouring it, divides the land betwixt the heir; and Relict, and expresses the marches in an instrument, and this is called to ken her to her Terce; the marches being kenned by the instrument; and though the service gives her right to the meals and duties; yet she cannot remove tenants, till she be kenned, as said is, the kenning being equivalent here to the season in lifrents.  
This Brive contains two points; first, that the bearer, was Lawful Wife, to the defunct and secundo; that he died infeft in such tenements, but if the Relict was holden and reput lawful Wife, in her Husband's life; no exception in the contrary will stop the service 
† K. J. 4. Par. 6. Act 77. .  
There is no Terce in Burgages Lands, Feu duties, or other casualties, nor in reversions, tacks, nor Patronages.  
The Courtesy, is a liferent, granted by Law, to him who married an Heritrix, of all her Heritage, and of that only; It needs neither season, nor other solemnity to its constitution; but is ipso jure, continued to him; if there were Children procreated of the Marriage, who were heard to cry; though the Marriage dissolve within year and day.  
All these Liferenters are obliged to find caution to preserve the thing liferented, and to leave it in as good condition as they found it, which is called cautio usu-fructuaria; and they are also bound to Aliment the appearand Heir if he have not Aliundi, to Aliement himself 
* K. J. 4 par. 3. Act 25. .  
If Liferenters survive Martinmess; or if they die upon Martinmess day, in the afternoon; their Executors will have right to the whole years rend, whether it be Land rend, or the rent of a mill; albeit the Conventional terms were after Martinmess; But if Liferenters labour the Lands themselves, their Executors will have right to the whole rent thereof, albeit they die before Martinmess.   

Title X. Of TEYNDS.  
TEynds 
* Tyths or Tenths: , being a burden affecting Lands, fall in to be considered in this place.  
Teynds are designed to be that special and liquid proportion, or quota of our Goods, and Rents lawfully acquired that is due to GOD, for maintaining His Service.  
It seems Our Law has followed the opinion of those Divines, who think, that some proportion of our Goods is due by Divine right; for we say, that Teynds are the Spirituality of the Church's revenue; But that the proportion is not juris Divini; for we alter the proportion by special laws and customs; though for distinctions sake we call this proportion the Tenth.  
By the Canon Law, they are divided into personal teynds, which arise out of the personal gain and profits, that a Man has by his Trade; Predial teynds which arise from the Natural Product of the Land that men possess. And mixed Teynds which arise from the profits, that men by their Personal industry make out of their Lands.  
They are likewise divided into Parsonage teynds, which are due to the Parson; and Viccarage teynds, which are due to the Viccars; And regularly all teynds are due to the Incumbent, who serves the Cure; so that if the Incumbent be a Parson, he has a right to the Parsonage teynds; and if he be a Vicar, he has right to the Viccarage teynds.  
The teynds of Corn, are called Parsonage teynds, or decimae garbales; and the fifth bowl of the free rent is still teynd with us; And all Land must pay teynd; except they be such as have been Feved out of old by Church men, before the Lateran Council, by which they were prohibited to alienat the teynds, and who had right both to stock and teynd; and where the teynds were never known to have been separated from the stock.  
Some Monks likewise got particular exemptions from paying teynds, for these Lands which they themselves did bring in, and cultivate; and with us the privileges granted to Temple lands, which belonged of old to the Knights of St. john, a Religious Order; and to the Monks of the Cisterian Order, are continued to those who have right to their Lands, with that Exemption: Manses, and Gleibs, are likewise free from payment of teynds.  
Viccarage teynds, are called the small teynds with us; because they are payable out of inconsiderable things, such as Lambs, Wool, Cheese, Eggs, etc. and they are said to be local; because they are paid according to the custom of the place; so that in the same Parishes, some Heritors, will be liable for Viccarage teynds of different kinds; for though no man can prescrive a liberty from payment of Parsonage ●eynds, since the Lateran Council; yet, as 40. years' possession is a sufficient right to a Minister, for Viccarage teynds; and as it does determine the Quota, as well as the species of Viccarage teynds; so by 40. years' Freedom, the Heritour is secure in all time coming, from payment of Viccarage teynds.  
When Popery was suppressed, all the Lands belonging to Monks, and others, were annexed to the Crown, in anno 1587. 
* K. J. 6. Par. 11. Act 29.  but the teynds belonging to them were not annexed; these being acknowledged by Our Law, to be the Patrimony of the Church; and they are therefore called, the Spirituality of the Benefices.  
The Monastries of old, having gotten several parish Churches mortified to them; whereby they had right to their Parsonages teynds; such as got those Monastries disponed to them, erected in their Favours, became thereby to have right to other men's teynds; and great emulation as well as prejudice arising from men's not having right to lead their own teynds.  
King Charles' the first, did therefore prevail with all the the saids Titulars of erection, to submit what should be paid them, as the price of the said's teynds; and His Majesty did determine, that the rate of all teynds, should be the fifth part of the constant rent; where the Stock and Teynd were accustomed to be set jointly; but the fourth part only where the teynds were usually set separate from the Stock; A fifth part being Deduced by the King in that case; because ordinarily Churchmen used to draw too great a proportion; and this deduction is therefore called the King's ease; as also, that the said's teynds being valued, should be bought at nine years' purchase 
* K. C. 1 Par. 1. Act 17. and 19 K. Ch. ● Par. 1. Sess. 1. Act 61. .  
For Effectuating this determination, the Parliament 1633. appointed some of their own number, to value the said's teynds, and after a process for valuation is raised, before these Commissioners, in which the Titular his Tacksman, and the Minister; are to be cited, the Heritor in the mean time gets the leading of his own teynds.  
The probation is ofttimes allowed to both parties in this court; and where one party is preferred, it is called; the prerogative of probation; and is much contended for; and is thus regulated, viz. either the teynds are drawn ipsa corpora, by the Titular, or Tacksman; and then they have the sole probation allowed them, to prove what the teynds were worth. (They proving that they led seven years of 15. before 1628.;) or else they have Rental bolls paid them; & eo casu, they have the sole probation likeways, they proving 20. years possession of uplifting Rental bolls, condescending upon quantity and quality; or Tertio, the Heritors have Tacks of their own teynds, for payment of Silver duty; and then there is joint prabation allowed both to Heritor, and Titular.  
Ecclesiastic Persons, such as Bishops, Parsons, etc. Submitted only what they were not in possession of; and therefore, there can be no valuation led of any teynds, Parsonage, or Viccarage which they were actually in possession of; but by a Letter from His Majesty thereafter in anno 1634; It is declared, that; if there teynds be set to Tacksman, they may be valued during the tack; whereas the teynds they were in possession of cannot; though teynds holden of Collegiate Kirks may be valued; and so may be bought and sold.  
The Burrows are only discerned to sell the Superplus, of the teynds they had right to, over and above what was due for the entertainment of their Ministers, Colleges, Schools, and Hospitals.  
After the teynds are valued, and the Titular discerned to sell; or if the Titular be willing to sell without a decreet; The Heritor is infeft; and seized by the Titular, who in the disposition, or Charter reserves to himself relief of the King's annuity, and of all imposition▪ laid or to be laid upon teynds; and warrants only from his own, and his Predecessors facts and deeds; and on the other hand the Heritor who has got a Decreet of valuation and not of vendition; is obliged to infeft the Titular; for security of the valued bolls.  
By the foresaid Decreet Arbitral, the several Parish Kirks were to be provided; and therefore the Titular might Allocat any one Heritors teynds, for provision of the Minister; and so he was excluded from the privilege of buying, whereas, it had been much better, that the Stipend had been proportionably laid upon all the Heritors.  
Teynds are not debita fundi; and so singular Successors are not liable in them; but yet the Minister has so far a taci● hypothique, that he may exact his modified stipend from any of the Heritors; as far as hi● teynds will extend, reserving relief to that distressed Heritor▪ and if the Heritor sell his Crop, the Merchant, who buys the same will be liable; but tenants will not be liable, if they pay a joint duty payable to thei● Master for Stock and Teynd.  
When the tack of teynd▪ expire; the Titular needs no● use a warning against the tacks-man as in lands; but he raise● and executes an Inhibition against the Tacksman, whic● interrupts tacit relocation, fo● that and all the Subsequent years, after which the Introme●●tors, are liable to a Spuilie.  
The Parliament 1633. did after the said submissions and Decreet arbitral, grant to His Majesty an Annuity out of all teynds; except those paid to Bishops, and other pious uses; viz. ●en shilling out of every bowl of teynd-Wheat; out of the bowl of the best teynd-Bear, eight shilling; out of Oats, Peas, and Rye, six shilling, where the bowl of these grains did yield a Boll of Meal; and where the Rent consists of money, six marks out of every hundred; and this Annuity is debitum fundi; but not being annexed to the Crown, it may be, and is ordinarily bought by the Heritors, from His Majesty's Theasurer, or others having right from the King.   

Title XI. Of INHIBITIONS.  
PRoperty, and Real Rights, with the burdens affecting the same, being explained: It is fit now to treat of Legal Diligences, by which these rights may be evicted, or the free use and disposal thereof Restrained; which diligences are chiefly three, Inhibition, Comprysing, and Adjudication.  
Inhibition, is a personal prohition, by letters under the Signet, Discharging the party Inhibit to sell, Dilapidate, or put away any of his Lands, in prejudice of the debt due to the Raiser of the Inhibition; the ground and Warrant thereof is an Obligation, or Bond for doing and performing any thing; or a depending Process; And if these Inhibitions be not raised upon Legal and Relevant grounds, they may be reduced.  
Inhibitions reach only Heritage, but not moveables▪ though the stile thereof runes equally against both; but movable bands may be reduced, in so far as they may be the Foundation of real diligences to affect Heritage; and they extend only to posterior voluntary Rights granted after Inhibition; but not to apprisings, or Adjudications, though led posterior to the Inhibition, if the ground thereof was anterior; neither do they extend to posterior dispositions, and Infeftments depending upon prior obligements; either general or particular, for granting of these Rights; nor to Renounciations of temporary Rights; albeit posterior to the Inhibition, these being necessary upon payment.  
But by a late Act of Sederunt 
* Act of Sed. 19 Feb▪ 16. 1680. , If the Creditor intimat by way of Instrument, to the person having the right of Reversion, that the Wadsetter, or Annualrenter, stands inhibit at his instance; and does produce in presence of the Parties, and Notar, the Inhibition duly Registrated; The Lords will not sustain Renounciations, o● Grants of Redemption; although upon true payment; unless there be a Declarator of Redemption obtained, to which the Inhibiter must be cited.  
The way of executing Inhibitions is, that the same must be by a Messenger against the person Inhibit, personally, or at his dwelling place, and at the mer●at cross of the head Burgh of the shire, Stwartry, or Regalitys where the person inhibit dwells 
* K. J. 6. Par▪ 1●. Act 264▪ & 265. par. 1●. Act 1●. , and after crying of three several oyeses, and public reading of the Letters, the whole Liege's are discharged to purchase any Lands or Heritage's, from the person inhibit; and the Messenger leaves or assixes a copy of the letters at the mercat cross; all which most be written in a paper, and subscrived by the Messenger and by two witnesses 
* K. C. 2▪ Par. 3. Act 26. ; which write, is called the execution of Inhibition; and there▪ after the letters and executions thereof must be Registrated within 40 days, after the execution thereof; either in the general Register at Edinburgh, or in the particular Register of the jurisdiction, where the person inhibit dwells; or the major part of the Lands lie 
* K. J. 6. Par. 7. Act▪ 119▪ ; and if any of these Acts be omitted the Inhibition is null, these being de solenitatibus instrumenti.   

Title XII. Of Comprisings and Adjudications.  
THE Fie being thus settled in the Vassal it may be either taken from him, and evicted for his debt, or his crimes; the first, is, by apprising, and adjudication, and the last, by confiscation and forefaulture.  
Apprising proceeds by letters charging the Debtor to compear before a Messenger, (who is by the Letters made judge; and Sherriff in that part in place of the Sherriff of the shire, whose office properly it is 
* K. J. 6. Par. 5. Act 37. ) and to hear the Lands specified in the letters, apprised by an inquest of 15. sworn Men, and declared to belong to the Creditor for payment of his debt; but because Our Law thought it not just that a man's Land should be taken from him whilst his moveables could pay his debt; therefore, in the first place, the Messenger who executes the Letters must declare, that he searched for moveables; and because he could not find as many as would pay the debt; therefore he denounced the lands to be apprised on the ground of the Lands, and at the mercat cross of the Shire, Stewartry, or Regality where the Lands lie, and left copies both on the ground, and at the Cross.  
At the day appointed by the Letters, the Messenger who is made Sherriff in that part, Fences a Court, and the Debtor being called, his lands is offered to him for the money; and if the money be not ready: the Inquest finds that the Debiors' lands should belong to the Creditor for his payment, and this is called a Decreet of Comprising; and the most part of the inquest affixes their seals thereto; upon which the Compryser gets a Charter passed in Exchequer, and is infeft by precepts out of the Chancellary; if the Lands hold of the King; and though of old, land apprised, was proportioned to the money; yet thereafter whatever land was ●ought to be apprised was accordingly apprised; though far exceeding the sum in value, because seven years was given (which was thereafter prorogate to ten 
* K. C. 2. Par. 1. Sess. 1. Act 62 ) for Redeeming the Land by payment of the true sum, and this is called a legal reversion; because the Law gives it to the Debtor; and if it be not redeemed within that time, the land belongs to himself for ever; but that legal runs not against minors; because they want judgement to know their hazard; so that they may redeem at any time before they be 25. years complete; but if the Comprysing expyre during their minority; the Compryser will thereafter have right to the whole mails and duties, albeit exceeding his annualrent; But that part of the Act is altered by a posterior statute, and the appryser is restricted to his annualrent during the minority of the Debtor 
* K. C. 2 par. 1. Sess. 3. Act 19 .  
If a minor succeed to a minor, whose lands are apprised, he has right to redeem, as if the Comprysing had been led against himself; But if a Major succeed to a Minor, after the Legal is expired, he hath only year and day to redeem; and if the seven years be unexpired in the Minors time, the Major may redeem within these years that are not run: And if the Rent of the Lands be not correspondent to the annualrent of the Money; whoever has Right to the Reversion, whether Major or Minor, must satisfy the whole sums and annualrents resting before he can 
* K. J. 6. Par. 23. Act 6.  redeem; But the Compriser during the Legal is restricted to the annualrent of the sums due to him; and the superplus of his Intromission will be imputed in payment of his principal sum; and if he be paid by Intromission, within the Legal of his whole principal sum, bygone annualrents, and expenses, with the composition paid to the superior, the comprising expires, ipso facto 
* K. J. 6 par. 21. Act 6. .  
Though the supiriour be not regularly obliged to receive a singular successor; yet lest by collusion betwixt the debtor and his superior, the true creditor should be unpayed; Therefore by a special Act of Parliament, the superior is forced to receive a Compryser upon payment of a full years Duty of the Land 
* K. J. 3. Par. 5. Act 37. K. J. 6. Par. 23. Act 6. , and he gets no more from all; though many Comprisers charge him to receive them; but if the superior pleases he may retain the Land to himself, he paying the Debt.  
The first Comprising, without season, carries right to all Tacks, Reversions, and other Rights, which require no Infeftment; and all posterior Comprisings need not season; because they carry only the Right of Reversion; but yet ordinarily second Apprisers do infeft themselves, because the first may be null, or become paid; or the first Compriser may lie out from seeking Meals and Duties; or the second Compriser would remove Tenants, which none can pursue without being Infeft, but the Superior comprising needs no Infeftment.  
After denounciation of the Lands to be apprised, the Debtor can do no voluntar deed by Disponing, or Resigning; (because else he might frustrate the diligence) except he was before denounciation specially obligedto dispone or resign.  
In a competition amongst Apprisers, the first Infeftment, or charge against the Superior is always preferred; and if the first Compriser did diligence to be infeft, but was stopped by collusion, as if the Superior to gratify the second Compriser, should unjustly suspend the first; albeit the second Appriser be first infeft, yet the first appriser having done diligence by charging, the Superior will be preferred to the second appriser first infeft.  
The Compriser during the years of the legal is not obliged to enter to the possession, but if he once enter he must be comptable for the Meals and duties though he leave off to possess; but if the meanest part of the sum be unpayed after the expyring of the Legal, the whole land comprised belongs to the Compriser without consideration of what he has intrometted with; to prevent which the Debtor, or a Second, or any posteriour Compriser, who has comprised the right of Reversion, does before the Legal expire, require the Compriser to compear at any day, or place, to receive his Money, in so far as he is not paid by his Intromission; and having consigned the same accordingly at that day, he raises an Action of Compt and Reckoning before the Lords of Session; and if it be found that he is paid by Intromission, and the Money consigned▪ The Lords decern the comprising to be paid, and extinct; nor needs the Debtor get new season; for the former Right revives; since the Fie was still in his Person, upon condition, that he would pay the sum within the Legal.  
In this Compt and Reckoning, the compryser will get allowance of the sherriff Fie; which is the twenty penny of the sum that was comprysed for, and of the entry payable to the superior, though the appryser truly paid neither; but he will not get payment of a Chamberlain Fie for taking up the rent; except he really paid it.  
All apprisings led since the first 
* K. C. 2 Par. 1. Act 62.  of january, 1652. within year and day of the first effectual comprising by infeftment, or charge against the Superior, come in pari pasu, as if they were all contained in one apprising. But the posterior apprisings within year and day; must pay their proportion of the Expenses of the Infeftment, and composition given to the Superior by the first appriser;  
Because appearand Heirs did frequently acquire Rights to expired apprisings against their Predecessors, by which they bruicked their ●state, without paying his Debt, to the ruin of lawful Creditors; Therefore, Our Law did very justly ordain, all such Apprisings to be redeemed for the sums truly paid out by the appearand Heir; which proceeds, albeit the appearand Heir acquire these Rights in his Predecessors life-time. But if the expired apprising was acquired gratis, by the appearand Heir, the same is only redeemable by the Creditors, for the sums contained in the apprising 
* Act foresaid. .  
Because the Parliament thought it exorbitant to take the greatest Estates for the smallest sums, and to make a Messenger judge in affairs of so great importance.  
Therefore in anno 1672. this way of comprising was altered, and in place thereof the Creditor now gets land adjudged to him by the Lords of the Session, proportionally to th● sum● due to him for obtaining infeftment, with a fifth part more; because the Creditor is obliged to take land for his money; which Adjudication coming in place of Comprisings is perfected by Charter and Season, as Comprisings; and the Superior is obliged to receive the Adjudger 
* K. C. 2 Par. 2. Sess. 1. Act 18. ; but it is redeemable only within five years by Majors.  
If the Debtor compear not to concur for completing the Adjudgers right, by giving him a progress, & transumpts of the evidents, and ratifying the Decreet of Adjudication; then the whole lands may be adjudged, as they were formerly apprised; it being unreasonable ●o s●rce a Man to take proportional land for his money, and yet to be unsecured even for that proportion; and they are redeemable within ten years; (these Adjudi●ations being now come in the place of Apprisings), and have the same privileges and restrictions which comprisings had by the Act of Parliament, made concerning Debtor and Creditor, in 
* K. C. ● Par. 2. Sess. 3. Act 19  Anno 1661. But if the Creditor attain possession upon his comprising, or Adjudication; he can use no further execution against the Debtor, except the Lands be evicted.  
There are other two kinds of Adjudications, allowed by Our Law; the first is, when the appearand Heir of the Debtor is charged to enter Heir; and renounces to be Heir; the Creditor having obtained a Decreet, cognitionis causa, fo● constituting the Debt, wherein the appearand Heir is only pursued for Formality; But the Decreet can have no effect Personally against him; The Hereditas j●cens will be adjudged to the Creditor, for payment of the Debt due by the Defunct; which if it be liquid, and instantly instructed; the Pursuer in the same Process protesting for Adjudication, the same will be allowed to him, summarily without necessity of any other Decreet, cognitionis causa.  
These Adjudications are redeemable within seven years, at the instance of Con-Creditors, one after another, who have likewise obtained Decreets of Adjudication; And a Minor renouncing to be Heir, may be reponed, and allowed to redeem upon payment 
* K. C. 2 Par. 1 Sess. 1. Act 62. .  
And if the Superior be charged to infeft the Adjudger, he will get a years rend for composition, as in Comprising 
* K. C. 2 Par. 2 Sess. 1. Act. 18. .  
Adjudications, carry right to all which would have fallen to the Heir; as all Heritable Rights, and the whole bygone rents and duties, since the defuncts death may be adjudged; because these belonged to the Heir.  
There is another kind of Adjudication competent by Our Law; that is for performing any obligement which consists in facto, and relates to particular dispositions; or obligements to infeft and after diligence used by Decreet, and Registrated horning against the disponer, and his Heir, for making the same effectual: the Lords will adjudge the Lands disponed to the pursuer as a remedium extraordinarum there being no other remedy competent.  
This Adjudication extends no farther than to the thing disponed; and hath no reversion; nor does it require charges to enter Heir, or renounciation; but the Authors right must be instructed.  
Confiscation will be handled in the Title of Cryms, and Criminal Processes.    

The INSTITUTIONS of the LAWS of SCOTLAND.  
Part Third.  

Title I. Of Obligations, and Contracts in general.  
HAving thus cleared Real Rights; We will now proceed to treat of Obligations, and Personal Rights.  
An Obligation, is defined to 
Obligation.  be that Legal ●ye; whereby we are bound to Pay, or Perform any thing.  
The chief division of Obligations by the Civil Law, and Ours, is, that some are Natural; because they arise from the principles of right Reason, or Laws of Nature. Some Civil, because they arise from positive Laws, or Municipal Customs.  
Another considerable division of Obligations is, that some arise from Contracts; some from deeds, resembling Contracts; some from malefices, and some from deeds which resemble male●ices, Ex contractu, aut quasi contractu; ex male●icio, aut quasi male●icio; for we become equally tied and obliged to Men; either by contracting expressly with them; or by doing some deed which induces an obligation without an express paction; or by committing malefices against them.  
A 
* Contracts.  Contract is an agreement entered into by several persons, inducing an obligation by its own Nature; 
* Contracts.  and the obligations arising from Contracts, are divided and distinguished, according as they are perfected, either by the sole consent of the Contracters; or by the intervention or tradition of things; or lastly, by Word or Write; hence is that remarkable division of Contracts in the Civil Law, Qui re, verbis, literis, aut concensu perficiuntur.  
The Contracts which depend upon things, are these which arise either from borrowing; (which comprehends indebite solutum,) or from loan; or from depositation; or from impignoration; and are called mutuum commodatum, depositum & pignus.  

* Mutuum.  Borrowing, or mutuum, is that contract, whereby a Man getting any thing from another, is obliged to restore him not the same thing that was borrowed, but the equivalent; or as much of the same quality in measure, number, or weight; as when one borrows a thousand pounds, the Receiver obliges himself to restore not the same; but another thousand pounds; and therefore the property of the thing borrowed, being transferred from the Giver to the Receiver; the Receiver runs the hazard of all the loss that the thing Borrowed can sustain, after it is delivered: This contract is most strictly interpreted, so that nothing is understood but what is clearly expressed.  

* Commodatum.  Loan, or Commodatum, is that Contract whereby a man gets the Loan of any particular thing Gratis, for some special use, and obliges him to restore the same thing in specie; and not the equivalent; as when a man gets the Loan of a Horse, or Coach; and because in this case, the property remains with the lender, therefore if the thing lent be lost, or perish by chance, the loss redounds to the lender; for the thing is still his; but if the thing be lent merely for the advantage of the borrower, he is liable to do most exact diligence; and therefore, if the thing perish, or sustain any prejudice for want of exact diligence the borrower must make up the same; but if the thing was lent for both the borrower and the lender's advantage, then from the same principal of natural equity, the borrower is only obliged to do such diligence, and to be so careful of the thing borrowed as he would have been of his own.  
In this Contract, the receiver is obliged to restore the same species in as good condition as he got it; and the Lender is obliged to pay the Receiver any considerable expense, that he necessarily bestowed upon the thing borrowed, the Law not allowing inconsiderable expenses; because, the Borrower has the use of the thing, which should compense these. 
Precariu●.   
Precarium, is, when any thing is lent to be called back at the Lender's pleasures, wherein it differs from Commodatum; which imports always a determinate time for making use of the thing lent  

Depositation.  Depositation, is that Contract which is entered into by one man's delivering any thing, into the custody of another to ●e kept gratis for his use; and therefore, because in this Contract, the property remains with him, who did depositate the thing, if it be lost, it is lost to him; and since depositations are made for the behoove of him who does depositate; Therefore, the Depositar (for so we call him, in whose hand the thing is Depositated) is only liable if the thing Depositate, was lost by the depositars dole, or gross fault; nam d●●ositarius tantum prest●t dolum, & latam ●ulpam; yet Inns-keepers, S●ablers, and Masters of Ships, are liable to most exact diligence, in preserving the goods of Travellers and Passengers, which they bring into their Houses, and Ships, and to repair and make up all the loss they may sustain, while they are in the Inns, or Ships, whether the prejudice come by the Servants, or Mariners, or by Strangers, which special kind of depositation, is introduced by equity, contrare to the Common Rules of Depositation, and which we have immediately from the Civil Law, and edictum praetoris, Entitled, Na●tae caupones Stabularii, etc.  
As in this Contract, the Depositar is liable to restore the same thing that is Depositate, and not the equivalent; so the Depositor is obliged to pay the Depositar what he bestowed upon it, whilst it did lie beside him, for generally a Gratuitous Office, aught to prejudge no man.  
But he cannot crave Compensation upon any debt due to him by the Despositar, which is singular in this Contract.  
Pledge, is the Contract, 
Pledge.  whereby one man gives to another any thing, for the Receivers Security for what he owes him, to be redelivered upon payment; and therefore, because the thing itself in specie, is to be redelivered; if it perish during the impignoration, by the gross fault or fraud of him who receives the pledge, it perishes to the Impignorator; and because Impignorations are made for the advantage both of the giver and receiver, (the one being concerned to get money, or some such thing upon the pledge, and the other to get a pledge for security of his money;) therefore he who receives the pledge, is liable to do such diligence for preserving thereof as prudent men use to do in their own Affairs; but he is not liable for culpa levissima; the Contract being for the behoove of both parties; and he will have repetition from him; for what he profitably bestowed upon it during the Impignoration.  
Sometimes what is Impignorated is not delivered, and then the Pledge is called an Hypotheque, and the Law sometimes makes such ●acit hypotheques without express paction, as where it makes the ●orn growing upon land, or the goods brought in to the House, that was set in Tack, to be liable to the Heritor for payment of his rent.  
If one man pays to another more than is due to him; or what is not due at all, the Law allows to him Repetition of what was unjustly paid; and this is called (condictio indebiti;) because by paying 
Condictio Indebiti.  to you, I oblige you really and in effect, to repay what shall be found not to be due; or to have been paid more than was really due; but since this obligation arises from the payers ignorance, therefore if he knew that what he paid was not due, he will not get Repetition; but what he paid will be looked upon, as a donation, but it must be ignorantia facti, for ignorantia juris availeth no man; and since this repayment is only allowed by the principles of natural equity; therefore if what was paid was due in equity, though it was not due by positive Law, the payer will not get Repetition.   

Title II. Of Obligations by Write, or Word.  
SOme Obligations, require Write, to make them 
Obligation by Write.  binding; whereas others require Write only by way of Probation, that is to say, cannot be proven without write, though they be valid, and binding without it.  
All Obligations for transmitting the real right of lands, do so far require Write of their own nature; that though the bargan be solemnly and clearly ended, by verbal transaction; yet there is still place to resile, or locus penetentiae, till the write be signed.  
Though verbal promises do● by Our Law, bind the promiser; 
Promises.  yet because the position and import of words may be easily mistaken by the hearers; therefore verbal Obligations or promises can only be proven by Oath of party, and not by witnesses, though the sum be never so small.  
Because, men's subscriptions may be easily counterfitted; therefore by an express Statute with Us, no Obligation though in write for more than 100 lib. is valid; except it be signed in presence of two subscriving witnesses, if the party can write; or by two Notars, and four witnesses; if the party cannot write 
* K. J. 6. Par. 15. Act 175 ; except the write be holograph; and that the writer and witnesses be specially designed 
* K. C. 2 pa●. 3. Act 5. ; and though the subscriving by two initial letters be sustained, where it is proved that the subscriver was in use so to subscrive; yet the Granters mark is not sufficient, except the verity of the affixing that mark be referred to the granters Oath.  
Such is the favour of commerce, and such expedition it requires, that upon its account, bills of Exchange are sustained; though 
Bills of Exchange.  they be not signed before witnesses; and delivery of goods, upon bargans are sustained to be proved by witnesses; though there be no write; and such is the favour of contracts of Marriage; especially where they are become Nottour by the subsequent Marriage, that they are sustained though there be no witnesses.  
By Our Law, an Obligation in write is not binding; except it either be delivered, or dispense with the not delivery; by a special clause therein; nam traditione transferuntur rerum dominia; but tradition is not requisite in mutual contracts; and if the write be in his hand, in whose favours it is made, it is presumed to have been delivered; and cannot be taken from him upon the pretence of not delivery; except it be referred to his Oath that it was never a delivered evident by the Granter.   

Title III Of Obligations, and Contracts arising from Consent, and Accessary Obligations.  
THough all Contracts require the consent of the Contracters; yet there are four, viz. Emption, Location, Society, and Mandate; which are said in a more special way to arise from Consent; because these Contracts are perfected by mere consent of Parties, without any further solemnity, or tradition; and thus how soon two parties agree, 
Emo & Vend.  concerning the price of any thing that is to be sold, that Contract is by mere consent so far perfected, that he hath the seller precisly obliged to deliver the thing bought and perfect the sale; albeit the dominium or property be not transferred, but remains with the Seller until delivery; and if the thing bought perish without the Sellers fault, even before delivery, the loss is the buyers, in respect of the Personal obligement upon the Seller, to deliver it, and the buyers right is established even before tradition; and though earnest, or arles be given as a Symbol or mark of agreement; yet the consent without the earnest or arles (as we call it) completes the bargan; and if the earnest be in current money, it is to be imputed as a part of the price. 
Emption.   
In this Contract of Emption and Vendition, their must be a price, consisting in numerate, and down told money; for if one thing be given for another the Law calls that Contract, Permutation, or excambion, and not Emption, and Vendition; and this price must be certain and definite; but if the price be referred to another, the bargan will subsist; except that third party, to whom it was referred, either will not, or cannot determine the price.  
Location and Conduction, is a 
* Location.  Contract, whereby a hire is given, for the use and profit of any thing, or for the work of persons; It differeth from Emption and Vendition, chiefly in this, that the design of that Contract is, to transferr the property; but in Location the property remains with the Setter.  
This Contract, being entered into by the mutual consent, and for the advantage of both parties; the conductor is only liable, to use and adhibite a moderate diligence, for preserving the thing set; that is such diligence as prudent men, adhibite in their own affairs; so that if the same perish without his gross and supine negligence; or fraud, he is not liable to make it up to the Locator.  
Location or setting of Lands for a certain hire, (called the tack-duty,) is frequent in Scotland; and it is to be observed that if the Ground yield no increase, but is absolutely barren, without the Fault of the Conductor; the hire will not be due, since that was given for the profit and use of the ground; But if there be not an absolute Sterility; and that the Land yield some profit, though never so little; the hire will be due, if the profit but exceed the expense of the labouring.  
From this Contract there arise two Actions, the one whereby the Conductor is obliged to pay the hire agreed unto; and to restore the thing set after the end of the Location, in as good condition as he got it. The other is an Action whereby the Locator is bound to refound to the Conductor, the necessary expenses employed upon the thing hired, during the Location. Vide supra, Part 2. Title 6.  
Society, is a Contract, whereby several persons oblige themselves 
Society  to communicate loss and gain arising from the things common in the Society.  
All the Partners in the Society, do by the nature of this Contract share equally; except it be otherwise provided; and if either the share of the gain or loss be expressed, the one regulates still the other; but because some men's pains are of as great value, as other men's money, therefore it is lawful and consistent with the nature of Society to contract so, as that one may have the half of the gain, and no loss; but the Contract would be null, if it were provided, that one should have all the gain and no loss, for there could be no compensation, though the other were never so skilful.  
By this Contract, all the Partners are obliged to advance for the affairs of the Society, according to the shares they have in it.  
The Society is extinguished, and the Persons who entered therein loosed therefrom by the death of any of the Partners; or by their becoming insolvent; except it be otherways provided; for this is a Personal Contract, wherein Men respect the Humour and industry of one another; and so this Contract is dissolved, by the simple Renounciation of any of th● Partners; so that every one has a Negative Vote, and if the Society be entered into, with this condition, that it should not be dissolved at the option of any of the partners; the Law did reprobate such Pactions; and from the same principle likewise it is, that partners in a Society, are not liable for further diligence, than they used to adhibite in their own affairs; for having voluntarly choosed one another for partners; it is presumed they are satisfied with one another's diligence, the contract being entered into for the behoove and profit of all the partners.  

* Mándate.  Mandate, is that Contract whereby one employs another to do, or manage any business▪ gratuitously; for if he who is employed get a reward, it is not properly a Mandate, but Locatio operarum, or a seeing of the person so employed; but yet if the receiver of the mandate has been at any expense upon the account of the mandate, the employer must pay it.  
He who receives the mandate is obliged to execute the same, according to the rules prescrived by the employer, and not to exceed the bounds of his mandate; And therefore if Titius employed Seius, to buy him, such a particular piece of Land for 10000 lib. Titius is obliged to ratify his bargan; though he buy it for 9000 lib. because ten comprehends nine; but if he pay 12000 lib. for it; he is not obliged to ratify the bargan; because he exceeds the bounds of his Commission.  
Mandates, expire either by the revocation of the employer, if the thing or business in which he was employed be entire; or by the death either of the person employed, or of the employer, or by the renounciation of the person employed; but in all those ●ases; if the thing undertaken be not entire; the person employed may and must proceed to execute the mandate, notwithstanding of the Revocation, death, or Renounciation.  
Mandatars are liable for exact diligence, & culpa levissima; because albeit the Mandate be only gratia Mandantis, yet the very nature of it implies diligence.  
Mandates, are either express arising, from express consent; or tacit, which are inferred by signs and taciturnity; as for instance, if a person present suffers another to act in his affairs; he is understood to give him thereby a tacit mandate.  
Secundo, Mandates are either 
Gen. & Par. Mand.  general for managing all affairs; or special, for doing some particular business, conform to the precise tenor of the commission; & albeit general mandates contain a most ample power of administration; yet they are not extended to committing of Crimes: Or,  
Secundo, to Donations; albeit where there is any probable cause, gratifications may be allowed; which will be regulate secundum arbitrium boni viri; this being contractus bonae fidei, which implies exuberant trust.  
Tertio, No General Mandate will imply a power to alienate Immovables; or to submit or transact any litigious business.  
Quarto, If in the general Mandate some special cases are expressed, it will not be extended to cases of greater importance, than those expressed.  
The great favour of Commerce, has introduced another kind of tacit Mandate; by which Exercitors of ships, and Prepositors are obliged by the Contracts of the Masters of the ships, and of the Institors, in relation to the Ships and Voyage; or to the particular Negotiation wherein they are entrusted.  
Exercitor, is he to whom the profit of a Ship doth belong; whether he be the Owner, or hath only freighted the ship: 
Exercitor.  the Master is the person entrusted with the charge of the ship, who has power to oblige the Exercitor, by contracting for the reparation, and outrigging of the ship; and in matters relating to the Voyage.  
Institors, are entrusted with particular Negotiations at land, such as keeping of Shops, etc. 
Institor  and they oblige their Prepositors, in relation to the affair wherein they are entrusted, as Exercitors are in Maritime affairs.  
Neither the Masters of ships, nor Institors, need show their Commission, but their being in the Office is sufficient to oblige the Exercitors, and Constituents. And if there be many Exercitors the Master's Contract obliges them all In solidum; albeit what was borrowed be not employed for the use of the Ship; only it must be known to the Lender, that the Ship stood in need of such Reparations; and the facts of the Institors, will oblige their Constituents of whatsoever Sex or Age they be; and even though they be Pupils, Minors, or Wives, who cannot validly oblige themselves; for they have themselves to blame who Entrusted such Persons.  
As all those Obligations and Contracts arise from express consent, so others arise from tacit consent; such as Homologation; as for instance, though a man be not obliged by a bond granted in Minority; yet if he pay a part of it, or annualrent for it, after he is Major; the Obligation is thereby homologated or owned, and becomes valid; not from the time of the 
Homologation.  Homologation, but from the date of the Write; and therefore it is fit that such as design not to own, null, or invalid deeds, should abstain from doing any thing, that may infer an approbation of them; but because Homologation, is actus animi, therefore it should not be proven by witnesses.  
Because all Obligations, cannot be bound up under general and regular names of Contracts; therefore the Law allows some Obligations, to pass under the name of Quasi Contractus; because 
Quasi contractus.  they have the resemblance, and are of the nature of Contracts; and these are Negotiorum Gestio, whereby if any person manage your business 
Negotiorum Gestio.  advantageously for you; you are liable to him for his expense; though you gave him no Mandate; lest such as are absent should be prejudged by the negligence of their Friends; as the Manager is liable to refound to the Person whose affairs he managed, any prejudice done to him since, else any man might be invited officiously, to middle in another man's affairs to his disadvantage, but this is to be understood, si in utiliter gesserit; otherewise if he acted profitably; albeit the event do not succeed, he will get his expenses.  
The other quasi contractus, are tutory, communion of goods, entering to be Heir, the Obligation of repayment that arises upon payment of what is not due; for if one be Tutor 
Tutory.  to you, he enters in a kind of Contract with you, whereby he is bound to administrate your affairs, and you are bound to pay him his expense; but of all these I have treated elsewhere in their proper places, as I shall do of malesices, and and what resembles them, when I come to treat of Crims; of which these may be properly said to be branches.  
Having thus treated of Principal Obligations; the only Accessary Obligation that I need mention is Cautionary; whereby one man becomes surtie for another; either to pay a sum, or perform a deed; betwixt 
Cautioners.  which two, there is this difference, that these that are Cautioners for a sum, if they be bound conjunctually and severally, with the principal debtor; may be pursued without pursuing the Principal: & quoad the Creditor they are Principals; but these who are Cautioners for performing of deeds; as cautioners for Executors, and for Curators, or Factors, or for Messengers, cannot be prusued till the principal be discussed, for they being only obliged, that their Principals shall count, or be honest; therefore they cannot be liable until the Principals first be cited to count in the one Case; or to answer for their delinquencies in the other; and they are only liable to make up what is wanting from their Principals after they are discussed.  
Because Cautioners for sums are liable as principals; therefore their Obligation may subsist; though the Obligation of the Principal Party be found null, or reduced by any privilege given to the Principal by Law; as if a Man become caution for a Minor; or for a woman who is married, Nam sibi imputet, who became a Cautioner for such; but if the obligation was absolutely null in itself; as if the Principal did not sign, than this obligation because it is but accessary, retains so much of its own nature as to free the Cautioner.  
Cautioners, are to get relief from their Principals, not only of the principal sums, and annualrents; but of all damage, and interest; and whether the same be 
Relief of Cau:  provided by the bond or not; and where there are many Co-Cautioners; they are liable in solidum, quoad the Creditor; but if any of them pay the whole sum to the Creditor; though he get assignation from him to the whole; yet he must only seek his relief from the other Cautioners, with deduction of his own part; which proceeds; albeit there be no clause of mutual relief in the bond; and they must communicate to their Co-cautioners, what ease they get by way of Transaction from the Creditor; but if they get the said ease by a mere Ratification, as by Donation, etc. then they are not bound to communicate what ease they get; for a Creditor may justly gratify one of his Cautioners as his Friend, or Relation, without being obliged to gratify the rest.  
To make Obligations effectual, it is necessary that the subject matter thereof be such as will admit of an obligation; For, no man c●● oblige himself, to do what is either impossible, unlawful, or dishonest; nor to transmit the property of things Sacred; (these not being in comercio,) and albeit when the Performance of obligations becomes imprestable, the Party is liable for the Value, as Damage and Interest; yet in these the Value is not due, nor will he be liable in a penalty, in case of not performance.  
But yet a Man may oblige himself, to do something not in his own power, as to cause another dispone Lands; and if he fail, he will be liable pro damno & inter esse; or for the penalty.  
Amongst Obligations, Donation 
Donations.  is also reckoned, which is an obligation proceeding from a Lucrative cause or title; For he who voluntarly, and gratuitously promises to give any thing, is thereby obliged to deliver the same; and this Voluntar giving, is called, a Donation, which is in Law defined to be A mere Liberality proceeding from no previous eompulsion.  
It may be perfected either by Write, or without it; but if without Write, it must be proven by Oath.  
Donations, are either Simple, Remuneratory, or Mortis causae, that is to say, Donations made in contemplation of Death.  
A Remuneratory Donation, 
Remuneratory Donations.  called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, is when a Man bestows any thing not gratuitously, but to requite and repay some good deed done, or to be done to him; and so is not purely a Donation.  
A Donation in contemplation 
Donations in Contemplation of Death.  of Death, is, when the Giver designs rather the Person to whom he gifts to have what is gifted, than any other; but wishes himself to have it, rather than him to whom he gifts it: And therefore, though pure Donations are not Revocable, yet a Donatio Mortio causa is; being of the nature of a Legacy; and no Donation is presumed to be Donatio Mortis causa, except it appear to be so, either expressly, or by strong presumptions, that the thing gifted, was only gifted in contemplation of Death.  
Gifts, being a mere Liberality, are not presumed; and 
Gifts.  therefore by Our Law, Debtor non praesumitur donare quam diu est debtor: But this being only a praesumptio juris, may be taken off by stronger Arguments, justly inferring, that Donation rather than payment was designed.   

Title IV. Of the Dissolution, or Extinction of Obligations.  
HAving cleared how Obligations are constitute; It remains now to consider how they are taken off, and extinguished; which is either by a contrary consent, or by implement and satisfaction.  
Since Consent is necessary to 
Consent.  the constitution of obligations, so a contrary eonsent, whether by a Discharge, or pactum de non petendo; does dissolve and extinguish Obligations; nam nihil est tam naturale, quam eo genere quidque dissolvere quo colligatum est; And therefore, if the obligation be constitute by Write, it requireth Write to the dissolution thereof, which is called a Discharge; And Discharges require the same solemnities 
Discharge.  that obligations do; but yet, if the obligation was satisfied, via facti, as by intromission with Rents of Lands, etc. it is probable by Witnesses, as all Facts are.  
Discharges, are either general of all that Parties can ask, or 
Dis charges general and particular.  claim; Or particular, of one particular thing or subject: And in general Discharges, if any particular thing be expressly discharged therein, the general clause will be extended to particulars of no greater importance, than what is expressly discharged.  
Discharges do ordinarily bear a clause, discharging all precedings till their date; and albeit they do not, yet three consecutive discharges, do presume, that all bygones are satisfied, if they be immediately 
Apocha trium annorum.  subsequent to one another, and granted by Parties, having power to discharge as discharges by Heritors, or Chamberlains, to their Tenants; and therefore discharges of 3. subsequent years granted by Merchants, who bought the Ferm of these years, will not infer the presumption; but it will be inferred by Discharges for a part of the three years granted by the Father, and the rest by his eldest Son, as Heir; the Discharges being in Write, containing a discharge of the whole years Rend; so that partial Receipts, albeit they extend to more than the years Rend, will not presume, that all precedings are paid; neither one Discharge for three subsequent terms, or years, the presumption being inferred from renewing of the Discharges each year, without Reservation.  
Obligations, are extinguished, and 
Payment.  dissolved by payment, which is, the performing of the obligation in the precise terms thereof, and is so favourable, that if it be made bona fide, it dissolveth the obligation; albeit he to whom it was made, had no right; so payment made to a Procurator after the procuratory was revoked without the payers knowledge, will be sustained; and payment made to Ministers serving the Cure, though they have no Title to the benefice, will liberat the Payers.  
Obligations are likewise fulfilled by acceptilations, which is an imaginary satisfaction, as if it were truly performed, and 
Acceptilation  has the effects and all the privileges of payment.  
Secundo, by compensation, whereby if the Creditor of a 
Compensation.  liquid sum, become Debtor to his Debtor, in another liquid sum, the two obligations extinguish each other ipso jure; and is equivalent to payment in all cases, but if the sums be not liquid, or if a species or body be craved to compense a liquid sum it will not be allowed.  
Tertio, Obligations are taken away by Innovation, which is, the changing one obligation for another, and if the person of 
Innovation▪  the Debtor be changed, it is called delegation.  
Innovation is never presumed except it be expressly mentioned, or that the obligation bears expressly to be in satisfaction of the former.  
Quarto, Obligations are extinguished by Confusion; that is to say, when the Debt and Credit meet in the same Person; as when the Debtor succeeds to 
Consusion.  the Creditor, or the Creditor to the Debtor; or a Stranger to both; and the reason of the Extinction in these cases, is, because the same Person cannot be both Debtor and Creditor.   

Title V. Of ASSIGNATIONS.  
ALL Rights, whether 
Assignation.  Heritable or Movable, are transmissiable by Assignation; but if a Season once be taken, the Right is not Transmissable by an Assignation, but by a Disposition; except Liferents, which are Transmissable by Assignation even after Season; because they can admit of no subaltern 
Cedent & Assig.  Infef●ments.  
He who grants the Assignations is called the Cedent, and he who receives it, is called the Assignay.  
Assignation to a Right is completed by Intimation; and therefore in competition betwixt divers assignays, the first intimation is always preferred; This intimation 
Intimation.  is made by a Procurator, who takes instruments in the hands of a Notar, that such an assignation was intimat, (so that one man cannot be both Notar and Procurator;) and if after this the Debtor pay the Cedent, he must repay it to the assignay; because the Cedent was denuded by the assignation; and for the same reason, the Cedents oath will not prove against the assignay if the assignation be for an Onerous cause.  
But if the assignation be Gratuitous; or for the Cedents behoof; or if the matter be litigious, and after a depending Process; in any of these cases the Cedents oath, will prove against the assignay.  
A pursuit or charge of horning upon the Action assigned, has likeways the force and effect of an intimation; but an Inhibition against the Cedent upon the assignation, will not supply intimation.  
The Debtors private knowledge of the assignation, is not equivalent to an intimation; but his paying a part of the sum? or annualrent for it, is equivalent to an intimation; and much more the writing a letter promising to pay; since that is in effect a renewing the Obligation.  
Bills of Exchange, and orders by Merchants to pay, need not be intimated; because in Commerce we are Governed by the Law of Nations; nor need assignations to reversions be intimated; because the registration is a publication of them, nor legal & judicial assignations, such as apprisings, adjudications, and Marriage; and that because they are passed, and expede publicly.  
A Blank Band is equivalent to an assignation; and so 
Blank Band.  must be intimated; and in competition with other rights, it is only preferred according to the date of its intimation, that the receivers name was filled up in it.  
It is a general principle in Our Law, that in the competition of more Creditors, the first complete diligence is still preferred; And therefore, an Assignation is preferred to an Arrestment, if it be intimate before the arrestment; but if the imtimation and Arrestment be in one day, they come in pari passu; except the Arrester be in mora, and do no diligence upon his Arrestment.   

Title V. Of Arrestments and Poyndings.  
THE ordinary Diligences, in Our Law, affecting 
Of Arrestments. and Poyndings.  Movable Rights, are Arrestment, which answers to Inhibition in Heritage, and poinding which answers to Comprising in Heritage.  
Arrestment is the cammand of a judge, discharging any Person in whose hands the Debtors Movables are to, pay or deliver up the same, till the Creditor who has procured the Arrestment to be laid on, he satisfied.  
Arrestments may be laid on, by any judge in whose Territories the goods are; or by the Lords of the Session wherever they lie, and that by special letters of Arrestment; or by a warrant expressed in the ordinary letters of horning: these letters are execute by a Messenger, and if after it is laid on the party in whose hands it is made, pay; he may be forced to pay the same over again, or may be pursued Criminally for breaking Arrestment, the punishment being consiscation of Movables and their persons to be in the King's will 
* K. J. 6. Par. 7. act 118. .  
Arrestment can only affect movable sums, and the ground thereof must be for payment of movable debts, or sums due on Heritable security, if no infeftment has followed 
* K. C. 2 Par. 1. Sess. 1. Act 51. , and it reaches only to the sums already due, or for which the year or term is current.  
How soon on Action is raised against a Person, his Goods may thereupon be arrested; and this is called an Arrestment upon a Dependence; but this Arrestment may be loosed by letters for losing of Arrestment, which passes upon a Common Bill, and a Band of Cautionry is given to the Clerk of the Bills 
* K. J. 6. Par. 22. Act 17. , wherein the Granter of the band obliges himself to pay the sum, if the Arrestment be found lawful, and the sums or goods discerned, to belong to the Arrester; but Arrestments upon a Decreet or (which is equivalent) on a Registrat Band, cannot be loosed at all; Except the decreet be turned unto a libel, that is to say, the Lords do only sustain the Decreet as a libel or summons against the Defender, or that the Arrestment was laid on after the Decreet was suspended; for in either of theses cases Arrestments may be loosed even upon Decreets.  
Arrestment being but a Personal Prohibition against the Defender to pay, it lasts no longer than the life-time of him in whose hands the Arrestment is made; except it be renewed against his Successors; but it dies not with him in whose favours it was raised, nor with him for whose debt it was 
* 〈…〉 Par. act 118  laid on; and if the debt be not liquid, the Debtors representative must be called to the Liquidation.  
In the Competition amongst more Arresters, preference is granted according to the Priority even of hou●s; and the first Arrestment is not preferred if the Posteriour Arrester get the first Decreet, to make the Arrested goods forthcoming; for arrestment; being only an inchoat diligence, it is completed by the sentence to make forthcoming; and yet if the Arrester did exact dligence to obtain a Decreet; his raising the first pursuit, will prefer him. He also who arrests on a Decreet, will be preferred to him who arrests on a dependence; and he who Arrests after the term of payment will be preferred to him who Arrests before the term.  
The King's pensions and gratuities aliments cannot be arrested; because they are given for a particular and favourable use; and not applicable to the Arrester.  
poinding may be likewise used against moveables, by 
Poinding:  virtue of letters of horning against the Debtors; containing poinding or any other inferior judge, his Decreet or precept 
* K. J. 6. Par. 12. Act 10. K. Ch. 2. Par. 1. Sess. 1. Act 29.  which is done by a Messenger after the days of the charge are expired 
* K: C: 2 Par: 2: Sess: 1: Act ●: , the form thereof is; The Messenger after poinding the goods, apprises them upon the ground where he apprehends them; and offers them to the Debtor, for the sum for which they were apprised, and if he compear not, he carries them to the mercat cross of the head burgh of the shire, or other jurisdiction where they are poinded, and there he apprises them, and delivers them to the Party, who is called the Poynder: but if any compear, and offer to make Faith that the goods belong to them, and not to the Debtor; then the Messenger must deliver them to that Party, else he is liable in a spulzie.  
poinding, is a judicial sentence, and the Messenger is judge constitute by the letters; the Messenger writes likewise an execution of poinding and that execution is better believed than any who offers to prove the contrare; for that execution is only quarrelable by improbation.  
Arrestment, being but an inchoat diligence, discharging the Party in whose hand the Arrestment is made, to pay, the right to the goods arrested, remain still in the Debtor, and may be poinded for his debt; for poinding is a complete diligence▪ giving an absolute right to the goods poinded.  
Labouring Oxen, or other Plough Goods cannot be poinded 
Labouring oxen  in time of labouring (least labouring should be otherways discouraged;) except there be no other Movables upon the ground to be poinded 
* K. J. 4 par. 6. Act 98. .   

Title VI Of PRESCRIPTIONS  
PRescription being a way of evacuating and annulling both Heritable, and Movable Rights comes 
Pes●r.  in here, after both these are explained.  
Prescription is defined, an Acquisition of Property by the Possessors continuing his possession for such time as the Law determines; Which was introduced not only for punishing the negligence of the 〈◊〉, who owned not his Right for so many years; But likeways, for securing Possessors, and such as derived right from them; and least by a constant uncertainty, the Possessors being unsecure, might neglect the improvement of what they possessed.  
Heritable Rights, (under which I comprehend Wadsets, Heritable Offices, Servitudes, Patronages, etc.) and all Actions depending upon them, or relating 
Pres: of Herit. Rights.  to them, prescrive with us in 40. years; if the Possessor being a singular Successor, have a Chartor, Disposition, or Precept, and Season in his Person; or being an Heir, have a constant tract of Seasins, continuing and standing together, for the space of 40. years, flowing upon Retoures, or Precepts of Clare constat; For, the Law did not trust a Season alone, it being only the assertion of a Notar. But Reversions which are in the body of the Possessors right; or reversions duly Registrated, prescrive not.  
All Personal Rights, and Actions relating to them, prescrive likeways in 40. years; If a 
Pres: of personal Rights.  Document be not taken upon that Right, that is to say, If nothing be done, whereby the true Proprietor declares his intention to follow and own his Right 
* K. J. 3. Par. 5. Act 29. Par. ●. Act ●●: .  
In both these Prescriptions, the extraordinary length of time, supplies the want of bona fides in the possessor; But, no length of time can make the possessor prescrive things Sacred, Religious, or public; nor yet things stol●e, or robbed, Ob vitium real, which affects such things.  
Actions of Spulzie, and Ej●cti on, prescrive in three years, after committing thereof; as to the specialties of these Actions, viz. the violent profits, and Oath in litem; But Minors have three years after their Majority 
* K. J. 6. Par. 7. act 119. .  
As do also Actions for Servants Fies, House meals, and Merchant counts; except they can be proven after these three years, by the Debtors oath 
* K. J. 6. Par. 6. Act 83. : And remove, if Action be not intended within three years after the warning 
* K. J. 6. Par. 6. Act 82. .  
If Assysers err in serving a man wrongously Heir to his Predecessor, the Retour may be 
Assyers'.  quarrelled within 20 years; but the Assysers themselves can only be pursued for error, within three years 
* K. J. 6. Par. 22. Act 13. , but the right of blood itself never prescrives; and therefore a man may be served H●ir to his Father or Grandfather, after a 100 years, being debarred by no time; nam jura sanguinis nullo jure ●ivili adimi possunt.  
If a Person who is forefaulted possessed lands 5 years before the forefaultur, without interruption, 
Forfeiture:  the King is obliged to show no right, in the person of him who was forefaulted to the lands, or others that he possessed; because it's presumed that the person forefaulted would abstract the writs, which quinquenrial possession is to be tried by an inquest of the Shire, where the land lies 
* K. J. 6. Par. 9 Act 2. .  
Arrestments on Decreets and depending actions prescrive within five years after sentence.  
Meals and Duties due by Tenants prescrive, if not pursued within five years, after the Tenants removing; Ministers stipends, and multurs pres●rive so that they cannot be pursued after five years, except they be proven by the Debtors oath.  
Holograph Bands; and subscriptions in count books, prescrive in twenty years; except they be proven by the debtors oath.  
And lastly, all bargans probable by witnesses, all actions on warnings, spulzies, ejections, Arrestments, Ministers stipends, etc. prescrive within ten years; unless wakened every five years; but this altars not any shorter prescriptions of these actions 
* K. C. 2 Par. 2. Sess. 1. Act 9 .  
All these prescriptions run the momento in momentum; so that the prescription runs till the last moment of the time allowed; but they run only from the time wherein the debt could have been pursued, since till then the Proprietar could not be called negligent, which negligence is the foundation of prescriptions; and therefore prescription runs not against a band from the date of a band; but only from the term of paymennt; and prescription of an action of warrandice, runs only from the eviction 
* K. J. 6. Par. 22. Act 12. ; because no man is liable in warrandice, till the lands be evicted; and from the same principle it is, that contra valentem agere non currit, prescriptio; and that prescription runs not against Minors, in whom negligence is not punishable, since it proceeds from no design; but from the unripness of their Age.  
Vassals cannot prescrive against their Superiors; because the Vassals right acknowledges the Superiors; nor can Laics prescrive a right to ●●ynds being incapable of such rights after the Lateran Council; but though the right itself prescrives, in neither of these cases, yet the bygons due by virtue of these rights before forty years, may prescrive.  
Prescription runs against the Kirk, and Mortifications; but on the other hand, because 
Prescription  Church men are negligent, and rights may be lost in the change of Intrants; therefore, 13. years' possession, is sufficient to maintain a Church man in possession; which is called, decennalis & ●riennalis possessio; and is a presumptive title, and sufficient till a better be shown, by which it may be excluded; for praesumptio caedit veritati.  
Prescriptions run likeways against the King; except as to His Majesties annexed property; or to his unannext property whereof the ferms, duties or feu ferms, have been counted for in Exchequer, since August 1455. years.  
Any deed, whereby the true proprietar owns his right, during the course of the prescription, is called interruption; and prescription is interrupted in Our Law, either by a process, or 
Interruption●  a charge raised within the years of the prescription; though the citation was only on the first Summons; and though the Summons was passed from, pro loco & tempore; But interruption by citation, is not sufficient unless it be made by Messengers personaly or at the parties dwelling house, and that it be renewed every seven years 
* K. C. 2▪ Par. 2. Sess. 1: Act 9 ; and that the Execution be signed by the Messenger and witnesses 
* K: C: 2 Par: 3. Act 5. .  
Interruptions made against the principal party, interrupt as to Caution●rs; and interruption as to a part interrupts the prescription of the whole; so that if a man arrest the meals and duties of any part of a Barony, he interrupts prescription, as to the whole Barony.   

Title VII. Of Succession in Heritable Rights.  
HAving formerly showed how Rights whether Heritable, or Movable, Real, or Personal, are constitute, and how they are transmitted to singular Successors: It remains now to consider how these Rights are transmitted by succession, beginning first with Succession in Heritage.  
An Heir, is he that succeeds universally to all that belonged to the Defunct; and is therefore 
Heir:  in the construction of Law, one and the same person with the Defunct.  
Though the Executor, be in effect the Heir in movable Rights; yet we call those only properly Heirs, who succeed in Heritage; and with us there are several kinds of Heirs distinguished by their several denominations. 
Heir of Line:   
The first, and chief kind of Heirs, are the Heirs of line, who are so called, because they succeed Lineally, according to the right of Blood; and they succeed thus,  
First, Descendants, according to the proximity of their Degree, in which the eldest Son is preferred to all his Brothers, and all the Brothers to the Sisters; and if there be only Sisters, they succeed all equally.  
The next degree, is Grand Children, and their great Grand 
Grand Children.  Children, etc. who succeed all in the same way.  
If there be no Descendants, than Collaterals succeed, in which, the first degree is Brothers, and Sisters German, for the whole blood excludes the half blood; and Brothers the Sisters; 
Collaterals.  and Brothers by the Father's side exclude Brothers by the Mother's side; there being no Succession with us by the Mother's side.  
Failing Descendants, and Brothers and Sisters, the Succession ascends; and all the Ascendants succeed upward, according to their degrees of Proximity, as the Descendants did downward; and thus the Father succeeds to his own Son; and failing him, the Grand Father, Great-Grand Father, etc. and failing of Ascendants in the right ●ine, the Collateral Ascendants succeed in the same way, and thus the Father's Brother; or if there be no Brothers, the Father's Sister secludes the Grand Father's Brothers, or Sisters, etc.  
It is to be observed that in Heritage, there is a Right of Representation, whereby the Descendants 
Representation.  exclude still the Collaterals; though nearer by many Degrees to the Stock, or comunis stipes; And thus the great Grandchild of the eldest Son secludes the second Brother; because, he comes in place of, and so represents the elder Brother, his great Grandfather.  
The Heir of Line, has Right to the Heirship moveables, and excludes all other Heirs therein; Heirship moveables are the best of each kind of moveables, which is given to the Heir; because he is excluded from 
Heirs of Line.  all other Movables; if there be pairs, or dozen, he gets the best pair or dozen; but in others he gets only one single thing; None have right to Heirship moveables, but the Heirs of Prelates, under which are comprehended all Benefice● Persons, the Heirs of Barons, under which are comprehended all who are infeft in Lands or annual rents, though not erected in a Barrny; And the Heirs of Burg●sses, by which are meaned, actual Trading, but not honorary Burgesses.  
If the Defunct had any Lands, 
Heir of Conquest.  or Heritable Rights, to which he could not succeed as Heir of Line, than he who succeeds in these, is called, the Heir of Conquest; and the Rule is, that Heritage descends and conquest ascends; so that if the middle of three brothers dies, his immediate elder brother would be his Heir of conquest; and if a Son of a second Marriage dies, leaving three brothers of a former Marriage, the youngest would succeed in his conquest lands; and this I conceive was introduced, for enriching the elder brothers, whom Our Law still favours; whereas heritage must descend according to the Law of Nature.  
These Heirs of conquest, have right to all lands, annualrents, heritable bands, and others; whereupon infeftment 
Conquest.  did or might follow, but they have no right to tacks, pensions, movable Heir-ship; and all other rights, having tractum futuri temporis, and requiring no infeftment, and so not competent to Executors; all which belong to the Heir of line.  
The Heir Male, is the nearest Male who can succeed; and 
Heirs Male.  all Heirs of Line, are also called general Heirs; because they succeed by a general service and represent the Defunct universally.  
The Heir of tailzie is he to whom an Estate is tailzed, so called, because the legal Succession is cut off in his favours from the French word, tailor, to cut, and the matter of tailzies may be Summoned up in these few Conclusions.  
Primo, In tailzies, the person first named, needs not be served Heir; as for instance, If I take my land to myself, which failing to Seius; Seius needs not be served; because there is no cognition requisite to clear that he is to succeed; but if I take may lands to myself, and my Heirs; or to me, and the Heirs of such a Marriage; which failing to Caius; then either Caius in the one case; or the Heirs of such a Marriage in the other, must be served; because, it is requisite to inquire, Whether there were Heirs, or who is Heir of that Marriage?  
Secundo, In all tailzies, he on whom the last termination falls is Fire; as for instance, If I take my lands to Seius, and failing him to Caius, and his Heirs; Caius is Fire, and Seius is only Liferenter.  
Tertio, Though the last termination fall on the Wife's Heirs, the Husband remains Fire; because of the prerogative of the Sex; as for instance, If I take my land to myself, and my Wife, which failing to her heirs, my heirs would be preferred; except the estate belonged to my Wife as Fire; For than her heirs would be preferred.  
Quarto, Though in Conjunct-Fie Rights, if I take my lands to myself, and my Wife in Conjunct-fie, which Failing to our Heirs, my Heirs would be preferred, as to heritable Rights; but in substitutions to moveables, the Right would divide betwixt her Heirs and mine.  
Quinto, The Heir of Tailzie, has but a hope of succession, and so the Fire may dispone; nor can the substitutes, or remoter members of the Tailzie, hinder him by Action, Inhibition, or otherways; except there be a clause irritant, and resolutive, declaring, that if the first Member dispone, his Disposition shall be null; in which case, though generally the remoter member must be served Heir, to the immediate prior who was infeft; yet in that case, the remoter member may be served Heir to the first Disponer.  
Sexto, If one oblige himself to make such a man his Heir of Tailzie, that Obligation ties him only once to tailzie his estate; but not that he shall not break that Tailzie; except the Obligation be for an equivalent Onerous cause: Or if a person oblige himself to do nothing contrare to his Tailzie, he cannot thereafter make any voluntar gratuitous Right to the prejudice of that Tailzie; But yet the lands tailzied may be comprised, or adjudged for sums truly due, and not dolose contracted, to disappoint the tailzie. 
Heirs of provision.   
Heirs of Provision, are these who succeed by virtue of a particular provision in the infeftment; such as are Heirs of a second Marriage, and as to these Heirs of Marriages, we may observe two things; first, That if a Father by his Contract of Marriage, be obliged to employ a sum to himself, and Wife in Conjunct-●ie; and the heirs of the Marriage, he cannot in prejudice thereof do any fraudulent gratuitous deed; though he may provide a jointure for a second Wife; or provisions for his Children of a second Marriage.  
Secundo, Though a Father may assign or dispone sums to Children, when extant, whereby they will be preferred to posterior Creditors becoming Fiars by the said Rights; yet if the Father dispone to children to be procreate, this will be considered only as a destination and so will not hinder the Father to make posterior Rights; or even posterior Creditors to affect by Diligen●es what is so disponed.  
Tertio, Process will be sustained at the instance even of the appearand Heir of the Marriage, against the Father, to fulfil the special obligations therein, or to purge any deeds already done by him in prejudice thereof.  
Albeit, where Heirs are not designed in any right, the Heirs of Line, exclude all other Heirs; yet if a man take lands to himself, and his Heirs Male tailzie, or provision; and thereafter acquire reversions, or tacks of the same lands to himself and his Heirs; these rights will accress to that special Heir, to whom the land was provided; for it is not presumable, that a man would give the lands to one, and the rights of them to another Heir.  
When women succeed, all these of one Degree succeed equally, and because the estate is divided amongst them, they are called heirs portioners; the eldest not secluding the 
Heirs portioners.  rest, and having no advantage over him; but where the Rights are indivisible, such as Titles, jurisdictions, Superiorities, and all the casualties of these superiorities: such as Ward▪ Marriage, Nonentrie, Feu duties, etc. these fall to the eldest heir Female, without division; together with the Principle Message, it being a Tower, or Fortalice; for other houses are divided equally.  
All these Heirs are liable in solidum, if they once enter Heir; except heirs portioners, who are only liable pro rata, and heirs substitute in a sum, who are only liable to Creditors, in the value of the sum, to which they are substitute; But they have in SCOTLAND a Privilege which they call, the benefit of Discussion, whereby 
Discussion▪  the Heirs of Line must be first pursued, to fulfil the Defuncts de●ds, or pay his debts; And next to these the Heir of conquest, the Heirs Male, the Heir of tailzie, and Heirs of provision; but for fulfilling a deed relating to particular lands, the Heir who succeeds in these particular lands, must be first pursued, without discussing; and that which is meant by discussing, is that the Creditor must proceed by horning, caption and apprising, against the Heir, who is to be discussed; before he can reach the other Heirs.  
An Heir is said with us, to be Heir active, who is served Heir, and may pursue, whereas he whom the Law makes 
Heir Active.  liable to be Heir, is said to be Heir passive; As when the appearand Heir is infeft upon a precept of clare constat by the Superior, or otherwise medles with his Father's Estate.  
When the Predecessor dies, he who should be Heir, (and 
Appearand Heir.  therefore is called, appearand Heir,) has year and day allowed him to deliberate whether he will be Heir, which is called, annus deliberandi 
* Annus delib. K. ●a. 6. Par. 2●. Act. 27. ; and which is indulged by the Law; because if a man enter once Heir, he is liable to all the debts though far exceeding the estate; and within that year, he cannot be pursued, nor obliged to enter; but after the year is expired, the Creditor may charge him to enter Heir, and if he resolve not to enter, he must renounce any Right he has by a writ under his hand.  
This year is counted from the defuncts death; except in a posthum child, who has a year 
Posthum Child.  allowed him, after his Birth, and not only during this year; but after it expires, the appearand heir without instructing any Title, may pursue for exhibition of all Rights made to his Predecessors; and of all rights made by his Predecssors, to any in his own Family; but not to Sirangers; to the end he may deliberate, whither he will enter Heir; and the Liferenter is bound to aliment the appearand Heir, not being able to entertain himself, though he renounce. vid. supra Part 2. Title 9 § Liferents.  
If the appearand heir resolves to enter heir to his Predecessor, he must raise Briefs from the chancellary; which Brief is a command from the King. to the judge ordinary, where the lands lie, to cause cite 15 sworn men, to try whether the raiser of the Brief be nearest heir; and this is executed or proclaimed at the mercat Cross where the lands lie; and if at the day appointed, these 15. sworn men find him to be the next person who should succeed, they serve him heir by a paper which is called a service, and which being returned be them to the chancellary; there is a write given to the heir, whereby he is declared heir; and which is called, the retour, because it is their answer, and return to the chancellary of the points contained in the brief; and thereafter, the person who is served heir is infeft by a precepts out of the chancellary; and if the service was to any particular lands, it is called a special service; but if there was no land designed, it is only called, a general service; and this general service is sufficient to establish a right to heritable Bands, Dispositions, Reversions, jurisdictions, and all other rights, whereupon the Defunct was not infeft, nor needed to be infeft; and a special service includes a general service but not E contra.  
The general brief hath only two points or heads, viz. if the 
general Brief.  Defunct died at the King's peace; and if the raiser of the brief be the next Heir; but the special brief, has seven, viz. when the Defunct died. Secundo, If he died last vest, and seized, at the King's peace. Tertio, That the raiser is next heir. Quaerto, Of whom the Lands are holden in capite. Quinto, By what manner of holding. Sexto, What is their old and new extent. Septimo, Whether the raiser be of lawful age; and in whose hands the Lands are at present.  
Sometimes likewise, the Vassal without serving himself heir, gets a precept of season from the Superior; wherein, because the Superior declares, that it is known to him, that such a man is heir to his Father; it is therefore called, a Precept of Clare constat; which therefore makes the Obtainer liable passive, to all his Predecessors debts; but gives him only active right, to the Particular lands contained in the Precept; nor will it give him a right even as to these lands, except against those who derive right from the Superior who gave it.  
Bailiffs also of burgh's Royal, do infeft their Burgesses as heirs in Burgages lands, giving them season: as heirs, by delivering them for a Symbol, the hesp and staple of the doors; and the season in that case, is in place of a service; as to these lands; but is not in other cases a sufficient active title.  
The heir who is Retoured, holds either his lands of the King, and then he gets precepts out of the Chancellary, to the judge ordinary, to infeft him; which if he refuse, the Lords upon a Supplication, will direct Precepts to any other person, who is thereby made a Sherriff in that part; but if the lands hold of another Superior, then either that Superior is himself entered or not; if he be entered, he will be charged by four consecutive Precepts, to enter the Heir; and if at last he disobey, his immediate Superior will be charged, and so till the heir arrive at the King who never refuses to enter any; and if the Superior be not entered, he must be charged upon 40. days to enter, that being himself entered, he may enter his Vassal; and if he refuse, or delay he losses all the Nonentries of his Vassal; but no other Casualties; because quoad these he was not Culpable.  
Though the Person who should be Heir, do not enter to his Predecessors Heritage; yet he may be made liable to his predecessors debt, by two passive titles, relating to heritable rights; viz. Gestionem pro haerede, and as Successor titulo lucrativo post contractum debitum, and there is a third passive title relating to Movables, which is called▪ vicious intromission. 
Behaving as Heir.   
Behaving as heir, or Gestio pro haerede, is when the person, who might have been Heir, immixes himself, and intromets with either the movable heirship, or any heritable estate, belonging to the Defunct; in which case, he is liable to the Creditors, not only according to the value of what he intrometted with; but as far, and in the same manner as if he had been entered heir; and yet the Lords will not fasten this passive title upon a man; because of its extraordinary hazard; where the intromission is very small; or where he has a colourable title to which he might ascrive his intromission, as a factory from the Compryser; or the Donator to the Escheat, or recognition; Gestio pro haerede, being magis animi quam facti; which factories will defend; though there was no Declarator; but if the appearand heir had no factory; it is not sufficient to allege the Defunct died Rebel, and so could have no heir; except his Escheat was declared before intenting the pursuers action; nor will this passive title, nor vicious intromission be sustained; except they be pursued in the intrometters own life-time, they being kinds of delicts.  
But he will not be liable, if the Defuncts Right was reduced, though after his intromission; And since this passive title was introduced by the Lords of Session, in Favours of the Creditors, to deter appearand Heirs from fraudulent intromission; therefore an appearand heirs, paying his Predecessors debt will not infer this passive title▪ since that is for the advantage of Creditors; nor will the getting of money for ratifying a Comprising that is expired, infer this passive title, since the Creditors would have got no Advantage by that Right; but if the appearand heir had consented before the Comprising was expired, it would be a passive title; because as heir, he might have redeemed the Comprising.  
Successor titulor lucrativo, is, where the appearand heir, to preclude 
Success. tit. lucr.  the necessity of entering heir; and so being liable to the Creditors, gets a Disposition from him to whom he would have been Heir, without any Onerous cause; the receiving whereof, though it be a small part of the Estate, makes him liable to the payment of all the Creditors debt; if the Right made, as well as the infeftment, was posterior to the Creditors lawful debt. But if there be an Onerous Cause; then either it is not near equivalent to the value of the Lands disponed; and in that case, it will not defend against this passive title; Or, if it be near to the value, it will defend against it, but not against Restitution of that Value. And since this passive title, overtakes such as might have been Heirs; therefore, a Disposition granted to a Grand Child, will make him Successor titulo lucrativo, though the Father be alive; since by the course of Succession, he might in time have been Heir, though he was not immediate Heir; but since this can only reach appearand heirs; therefore, a Disposition made by one Brother to another, though the Maker had no Children, will not make him Successor titulo lucrativo, since the Brother might have had heirs himself; and so his Brother was not his appearand heir.  
The Passive title holds only in heritage; and therefore, the getting a right to movable heirship, and tacks, will not infer the same.  
Gestio pro haerede, and Successor titulo lucrativo, being passive titles, whereby in odium of the irregularity of the intromission, they are made liable as heirs; therefore, these passive titles, can extend no further, than if they intromet with, or take a disposition to these things to which they might have succeeded; and so not inferred against an heir of tailzie, intromitting with, or getting a deposition of what would have fallen to the heir of Line; nor can they be extended further, than if they had been served heirs; and thus an heir portioner will be no further liable in these, than pro rata, if she had entered; for the copy should go no further than the original.  
To conclude, the Succession 
Rights on Deathbed.  in heritage, it is ●it to know, that by an old statute 
* Stat. Will. Reg. cap. 13.  and our constant practic, a man cannot dispon his heritage upon death bed, in prejudice of his heirs; (that is to say, neither lands, nor heritable bands, nor any band, though Movable, in so far as his heritage may be thereupon apprised or adjudged;) so jealous was Our Law of the importunity of Churchmen, and Friends, and of the weakness of mankind, under such distempers; and therefore, if a man has made any right in prejudice of his heir, after contracting sickness, though he was sound enough in his judgement for the time, and continued sound, for a very long time; yet this right will be reduced, as done in lecto, or upon death bed; either at the instance of the appearand heirs, or at the instance of the apprearand heirs Creditors; and it is sufficient to prove sickness, though it be not proved mortal, and that he was sick, without proving that he died of that sickness, or was sick the very time of the disposition.  
If thereafter, the maker of such a right come to Kirk or mercat unsupported, the Law presumes that the Maker was reconvalasced, but since the Law has fixed upon Kirk and Mercat, as open places, where the disponer may be seen by all men, and by unsuspect witnesses; equivalent acts, as going to make visits, though at a greater distance will not be sustained; and so the deeds reconvalasce with him; But though a man cannot grant a new right upon Deathbed; yet he may perfect an old right; or do a deed to which he might have been otherways compelled; as fo● payment of his debt, or may grant a rational jointure to his Wife; though he cannot grant provisions to his Children in that Condition.   

Title VIII. Of Succession in Movables.  
THE same Rules are observed, in the Succession of Movables, that were formerly specified in the Succession of Heritage; except as to these particulars, viz. all of one Degree succeed equally; and so amongst Brothers and Sisters, the Elder seclude not the Younger; nor Males the Females, as in heritage; and in moveables, there is no right of Representation as in heritage; and therefore if there be a Brother and two Sisters alive; and a third Sister's Children, the Brothers and Sisters, who are living will succeed equally, excluding the Children of the Sister who is dead.  
The Executor, is also only liable, according to the value of the Defuncts estate; Because, he gives up an inventary of his 
Inventary  goods; but an Heir is liable for all the Defuncts debts.  
A Testament, or Latter will, does require to be in Write, for nuncupative Testaments, which 
Testaments.  were so called, in the Civil Law; (Because, the Defunct named his heirs without Write) are not allowed by Our Law, by which a Testament must either be holograph, all written with the Defuncts own hand; or at least, subscrived by him before two Witnesses, if he can Write; or if he cannot Write, by a Notar, or Minister and two witnesses.  
No Heritable Right can be left in Testaments, though the Testator was in liege poustie, and perfect health; and though the Testaments be made in other Nations, where Heritage may be disponed by testament; vet it will not transmit a right to Heritage lying in Scotland; and yet a Testament made according to the solemnities of these Nations, will be valid in Scotland; for though they may regulate us as to solemnities; yet they cannot alter the nature, and so not the transmission of our Rights.  
A Legacy, is a donation left by the Defunct in any Write to be paid 
Legacy  by his Executor; But if the Legator die before the Testator; or before the condition is fulfilled, on which the Legacy was left, than the Legacy evanisheth; and though neither other men's moveables, nor a man's own heritable rights, can be left in Legacy; yet such Legacies are valid, if the Testator knew that the sum left was heritable, or belonged to others; and the Executor in those cases must pay the value.  
A Minor being above 14. years, may make a Testament, without the consent of his Curators; but under 14. years he can make none. A Wife may make a Testament without the consent of her Husband. And a person interdicted without the consent of the Interdictors; but Idiots, nor furious persons; can make none; except in their lucid intervals; nor Bastards, except they be Legittimated, or have Children of their own.  
If a Man be Married, the Wife has without paction, a share in his Movables, of which he cannot defraud her by his testament; and this is called, jus relictae; and if there be Children, the Law has provided a portion of the Movables, 
Jus relicta.  for them; which is therefore called their legittim; and of which their Father cannot prejudge them by his testament; but there is no legittim due by the Mother's death; nor have Children who are foris famili●●; that is to say, who are married, and have renounced their portion natural; any Legittim due to them.  
This Legittim is also due only 
Legittim.  to the immediate Children, but not to Grand Children.  
The Remander of the Defuncts Movables, beside what is due to the Relict, and Children, is called the deads' part; and upon that only he can dispone.  
If a Man have no Wife, nor Bairns, all is the deads' part and may be disponed by him; If there be either Wife, 
Deads' part  or Bairns, and not both; then the Defuncts Testament receives a bipartite division; but if there be both Wife and Bairns, than it receives a tripartite division.  
By the Civil Law, a Testament was null, if the heir was not named; but with us a Testament is valid, though the 
Executor.  executor be not named, who is the heir in mobilibus, and is called executor; because he executes and performs the Defuncts will, and for executing thereof the Law allows him the third of the deads' part, if he be a Stranger; but if the nearest of kin confirm, he has right to the whole deads' part; except the whole be exhausted by legacies, and the superplus over what is left in legacy, and the third due to the Executor for his Office, belongs also to the Children, and they may call the Executor also to an account for it 
* K. J. 6. Par. 22. Act 14. collation. ; but the Heir has no share in the Movables; except he collate, that is to say, (be content that the rest of the Children share equally with him, in all that he can succeed to as Heir;) or in case there be but one Child; for then that Child is both Heir and Executor without Collation.  
An Executor Nominate, is he 
Exec. Nominate.  who is named by the Defunct in his Testament; And is therefore likewise called an Executor Testamentar; but if there be none named by the Defunct, than the Commissar will make an Executor dative; and ordinarily 
Execut. Dative.  they prefer the nearest of kin; but if the nearest of kin being charged, will not confirm, than they name their own Procurator Fiscal Executor; and if thereafter, the nearest of kin compear, they use to surrogate him, and this is called, an Executor surrogate; But no Executor Dative has a third of the Defuncts third, as others have.  
A Creditor may confirm himself Executor Creditor; and 
Executor Creditor.  so may pursue the Defuncts Debtors, and lest that Creditors should wrong one another by nimious diligence, Our Law has appointed, that all who shall confirm themselves Executors Creditors, or shall do diligence against Executors, or Intromitters 
* Act of Sed. 18. Feb. 1662.  within 6. Months one of another shall come in pari passie.  
Executors Creditors are only obliged to confirm as much as may pay themselves; and are for the same reason, only liable to do diligence for what they did confirm.  
Because Movables may be easily concealed from Creditors or dissipated, therefore the Law appoints, that the Executor shall upon Oath give up Inventar, and find Caution to make these moveables forthcoming; And then the Commissar confirms him; nor can he pursue, or dispone as Executor, till he be confirmed: he is only liable for the Defuncts debt, in as far as the goods confirmed will extend.  
Executory being a mere Office, it accresses to the Survivers; if there be more Executors, and in so far as the Executors have not execute the Testament in their own Life-time; that is to say, have not obtained Decreets for the goods belonging to the Defunct; there will be place for a new Executor, for executing these; and they are called, Executors quoad non executa; or if the Executor ommit to give up any thing in the Inventar; or do not give up the saids moveables at the full rates; there will be another Executor Dative made by the Commissar, who is called, an Executor Dative ad ommissa, vel male appretiata.  
The Executor only has power of Administration; and the Creditors and Legators can only pursue him; except where there is a special Legacy left of such a particular thing, or a sum owing to such a particular person; For then the special Legator has the dominium transmitted to him, and so he 
Special Legacy  may himself pursue for his special Legacy; but the Executor must be still called in the pursuit, to the end it may be known, whether the Debts exhaust the special Legacies; For, no Legacy can be paid, till the Debts be paid; and therefore, if all the Legacies cannot be paid, the Legators suffers a proportional defalcation for payment thereof; but if there be as much free goods, as will pay the special Legacy, it will be preferred, without defalcation.  
An Executor cannot dispone, till he obtain a sentence, but even the sentence states him not in the absolute right of the moveables; otherways than that he may discharge and assign to the respective persons having interest; For, if he were denounced Rebel, the Executory▪ goods, even after sentence, would not fall under his Escheat, nor would his Executors, or his Creditors have right thereto, in prejudice of the nearest of kin of the Defunct, to whom he was Executor.  
If there be more Executors, whom we call Co-Executors; 
Co-Execut.  one cannot pursue without the rest, for all of them represent the Defunct only as one person; but if any of the rest will not concur, they may be excluded from their Office, by a process before the Commissars; nor can an Executor for the same reason discharge a debt wholly, since the rest have an equal share in each debt: but if the other Executors have got as much as their share will extend to, the discharge even from one of the Executors will be sufficient; nor are (for the same reason) Co-Executors liable for the whole debt, and so cannot be singlely pursued, unless they have intromitted with as much; as may pay the debt pursued for.  
An Executor is liable to do diligence for recovering the 
Diligence of Exe:  debts due to the Defunct; and the diligence required upon his part, is a sentence, and Registrated horning against the defuncts debtors; but if there be an universal, or special legatar, whereby an Executor confirmed has no advantage; then the Executor is not liable in diligence; but only to assign the Creditors that they themselves may pursue.  
The Executor likewise cannot pay any debt without sentence, lest otherways he might prefer one Creditor to another; but yet the Executor may pay those debts, that are acknowledged in Testament without Process, providing the same be paid before the Creditors intent a pursuit; or these 
Prvil. Debts.  which we call privileged debts; because they are preferred to all others, viz. servants fies, medicaments on deathbed, house-meal, and funeral-expenses.  
After the Executors have executed the whole Testament, they may get a Decreet of Exoneration before the Commissars, against the Creditors, and all having interest; wherein they may prove that all they got is exhausted by lawful sentences; but it is not necessary to have 
Decreet of Exoneration.  such a decreet when they are pursued before the Lords, for it is sufficient when they are pursued there to allege, that they are exhausted by way of Exception.  
If any Person intromit with the Defuncts moveables, without being confirmed, they are liable to the Defuncts whole 
Vicious Intromission.  debts; whether they were related to himor no; and though their intromission was very small; and this was introduced to prevent the fraudulent, and clandestine abstracting of the Defuncts moveables, without inventary in prejudice of Creditors; and therefore this passive title is only introduced, in favours of Creditors; but of none others, such as Legatars Bairns, etc. But if the intromitter confirm, before any Action be intented, this purges the Vicious intromission; and the intromitter is only liable for the value of the thing intromitted with; or if there be an Executor confirmed, no Person can be pursued as Vicious Intromitter; for the Intromitter than is only liable to the Executor; But the Relict, or the Defuncts Children, confirming within year and day after the Defuncts death, does thereby purge the vitiosity; though they confirm not till after citation; nor will necessary Intromission infer vitiosity, and that is called, necessary intromission, when either the Husband or the Wife, continue their possession of one another's Goods, after one another's decease, for preservation; and that because there is no other person to look after them; and this is for the advantage of the Creditors; since it hinders the Goods from perishing.  
If there be moe vicious Intromitters, they are each liable in solidum, if they be pursued in several Actions; and pro virili, if they be pursued together, but none of them get Relief, for wrong in our Law has no warrant.  
The Heir is obliged to relieve the Executor, of all heritable debts; and the Executor 
Relief, etc.  is bound to relieve the Heir, of all movable debts, as far as the Inventar will reach.   

Title IX. Of last Heirs, and Bastards.  
WHilst there is any alive, who can prove even the remotest contingency of blood to the Defunct, they succeed to him; but if there be none, the King succeeds as last 
ultimus ●aeres.  Heir; for quod nullius est, est Domini Regis; and so the King succeeds to the Defunct, as last Heir; both in Heritage and Movables; and is preferred to all Superiors, and others whatsoever; for which end he makes a Donatar, who must obtain a Declarator before the Lords of Session, against all who are supposed to have any Relation, whereupon a Decreet being obtianed before the Lords, declaring that the King has right as last Heir,, the Defunct having died, without any Relation. This Decreet is equivalent to a service; but if lands be taken by a man to himself, and his Heirs Male simply; the King will succeed as last Heir; if there be no Heirs Male; though there be Heirs Female; since the land was not provided to them; and therefore men ordinarily in their tailzies adject the Clause whilks failzing to their Heirs whatsomeever.  
Because the King succeeds here as Heir; therefore he is liable to pay the Defuncts debts; but he is only liable as far as the Estate will extend; and therefore the Creditors may adjudge the Real Estate, and serve themselves Executors Creditors in the Movables.  
A Bastard by Our Law has neither 
Bastardy.  Heirs nor Executors; but yet he may dispone upon either his Heritage or Movables inter vivos; though he cannot make a Testament; except he be legittimated by a letter under the Great Seal, (which extends not to Heritage) or have Children surviving him; for the Bastard's Children will always seclude the King.  
The King in the case of Bastardy, makes a Donatar, who pursues Declarator; and is liable to the debt; for in effect the King succeeds here, quasi ultimus haeres, and Creditors use the same execution in this case, as in the other; and in both ultimus haeres; and Bastardy, the Relict has still her share of the Movables, as in other cases.  
Children procreate betwixt persons divorced; and these with whom they have committed Adultery can not succeed to them 
* K. J. ● par. 16▪ Act 20. .    

The INSTITUTIONS of the LAWS of SCOTLAND.  
Part Fourth.  

Title I. Of ACTIONS.  
HAving finished these 
Actions  two first parts of the Law, which treat of Persons and Rights; We come now to treat of the third part, viz. Actions, whereby these Persons, pursue those Rights.  
An Action is defined to be a Right of prosecuting in judgement what is due to us; And it suffers very many Divisions; the first whereof is, that some are Real, and some Personal; A Personal Action, is, that whereby we only 
Real & Personal Actions  can pursue the person that is obliged to us; as where I pursue a Man for payment of a sum due by his Bond. A Real Action is, that whereby a Man pursues his Right against all singular Successors, as well as the person who was first obliged; As for instance, if one have an Infeftment of Annualrent, he can not only pursue the Granter for payment of the Money, by a Personal Action, but he can by a Real Action, called, an Action for poinding of the ground, pursue all singular Successors, and poind the Tenants, and Intromitters with the Rent, for recovering of his annualrent out of the land, that stood affected with his Infeftment of annualrent.  
Actions are also divided i● ordinary actions, and actions rescissory; For with us all Actions, are called, ordinary actions; except Improbations, whereby we pursue papers to be declared False and Forged; or Reductions, 
Improbation. Reduction.  whereby we pursue Rights to be declared null, and to be reduced.  
In Improbations, there are two Terms given to produce the Write; because the danger is 
Terms of Imp.  great; And if the Writer and Witnesses of, and in that Write be alive, their testimonies are only allowed as probation; which 
Direst Manner of Imp.  is called, the direct manner of Improbation; But, if these be dead, the Lords try the Verity of the Write by strong presumptions and conjectures; which is called the indirect manner of Improbation: But because in Re●uctions, the Write called for, 
Indirect Manner of Imp.  〈◊〉 only to be declared null, till 〈◊〉 be produced; therefore, there ●s only one term granted for producing.  
No certification will be gran●●d against any Writes, made ●y the Pursuer and his Predecessors and Authors; except he be ●●rved heir to these Predecessors, and produce a right made by these 
Certif. in Imp.  Authors: But certification will ●e granted against any Rights made to the Defenders, or their Predecessors, to whom they may succeed jure sangui●is, or to their Authors, or any to whom these Authors may succeed jure sanguinis; if any person be called to represent these Authors.  
The ordinary Reductions are ex capite Inhibitionis, whereby we pursue Rights to be declar●● null as granted after Inhibition is raised by us; or ex capite interdic●ionis if granted after Interdiction is raised by us; or ex capite vis 〈◊〉 metus, if the rights were extort●● from us by force; or ex capit● fraudis, if the rights were eli●● from us by circumvention, in bot● which last the Pursuer mu● libel the Qualifications, or Circumstances from which th● force or fraud are inferred or ex capite lecti, if the deed were done upon deathbed, i● prejudice of an appearand Heir● or upon the Act of Parliament▪ 1621. 
* K. J. 6. Par. 23. Act 18. , if the deeds were don● in prejudice of prior lawful Creditors, in favours of conjunct or confident person; that is to say▪ Relations, or Trusty's, without an onerous cause, or to a Creditor's, though for an onerous cause, in prejudice of another who had done prior diligenc●, that was habile to affect the subject disponed; all whi●h, and many others of that Nature are opposed to ordinary actions; because, they are extraordinary remedies invented by Law, for the preservation of men's Rights, and are called extraordinary; because they are never competent, till other ordinary remedies fail.  
Actions of Reprobatour, and 
Reprobatour.  Error are in effect Reductions; and must have the concourse of the King's Advocate; In the first whereof, a party against whom witnesses have deponed unjustly; craves, the Decreet pronounced upon these Depositions to be reduced; because the Witnesses have deponed falsely, circa initialia testimoniorum; and condescend in his Reasons of Reduction, up on the particulars wherein they have deponed falsely; and also concludes, that the testimonies should be reprobated.  
In the summons of Error; the Pursuer craves, that a service (whereby the Defender is served hei● 
Summons ●● Error  to such a man) ought to be reduced; because the Pursuer is a ne●rer relation to the defunct▪ than the person wrongously served; upon which he condescends; and therefore concludes, that the service, and all following thereupon may be reduced; And that it may be found, that the Inquest who served him heir have erred; and this is the only summons that is drawn in Latin with us.  
Some Actions, are called 
Act prejudicial.  preparal●r●, or prejudicial actions; because, they must be discussed before other actions are competent; as for instance, If I pursue for a sum, and the Defender raises an improbation, alleging the write to be false; the trial of the falsehood, must be first discussed; and so is prejudicial to the action of payment.  
Exhibitions conclude, either merely to exhibit the write, or 
Exhibitions.  the thing called for; and than it is only a preparatory action; such as exhibitions ad deliberandum; or else they conclude delivery; and in all Exhibitions, the ordinar terms libeled, are that the Defender had, has, or has Fraudfully put away the papers or things craved to be exhibit; and therefore, he is not obliged to exhibit, except he had them since the citation, or fraudfully put them away, to elude a future citation.  
Some Actions are called, Actiones, bonae fidei; in which 
Actiones Bonae fidei.  equity is followed, as Actions upon Mandates, Depositations, Emption, Location, etc. In which the judge considers 
Actiones stricti Juris.  what in equity is to be done by one party to another. And some actions are stricti juris; in which the judge is to follow the strict prescript of the Contract upon which the Action is raised, as in a Declarator of Redemption, wherein the pursuer craves, that it may be declared that he has lawfully redeemed the lands, that were Wadseted; in which case the Judge must consider the very precise terms of the reversion, and that the lands were redeemed conform to these terms; nor is Equipollency Relevant in these cases.  
Some Actions, are called rei persecutoriae, by which we 
Rei Persecutoriae  pursue that quod patrimonio nostro abest; which is commonly called, damage and interest.  
Some are called, penal actions; because we pursue not only for repetition, and real damage, 
Penal.  but for extraordinary damages, and reparation by way of penalty; such as are spulzies, Actions for violent Profits, etc.  
Some Actions, are called Arbitrary Actions, wherein the 
Arbitrary.  judge is tied to no particular Law; but proceeds ex nobili officio, that is to say, according to what he sees just and fit; as an Action for proving of the Tenor of an evident, wherein the Complainer lybels, that he had such a paper, (of which he must lybel the full tenor verbatim,) and that he lost it by such an accident; and therefore concludes▪ that the tenor may be proven by Witnesses, and adminicles in write, which he must libel; For, no tenor can be proven, without some adminicles in write: And generally, there being many things, with which the Law behoved to trust the Discretion and Honesty of the judge, since all cases could not be Comprehended under known Laws; it therefore invested the judge with this eminent power, which is called, nobile officium, in opposition to that officium ordinarium, & mercenarium, wherein he is obliged to follow the will of the Contracters precisely, & hoc officium mercenarium judex nunquam impertit nisi rogatus.  
Some Actions, are called, Declarators; because the Pursuer concludes in them, that some special thing should be 
Declarators.  declared in his Favours; and ordinarily, wherever the King, or any other Superior grants a gift, he to whom it is granted pursues a Declarator, craving, it may be found and declared, that the Casuality gifted to him, has fallen in the Superiors hands; and that he has right thereto, by virtue of the gift: And thus Declarators must be raised upon Escheats, Wards, Marriages, Nonentries, etc. only there needs no Declarator upon a gift of Forefaulture; And upon gifts of Escheat, they raise Actions, both of general and special Declarator in one summons. In the general, the Pursuer concludes, that it should be found and declared, that the Rebel was lawfully denounced to the horn; and that thereby his Escheat fell in the Superiors hands: And in the special, he concludes, that the Tenants of the Rebels lands, whose Escheat is fallen, may pay him the Meals and Duties, by virtue of his gift, and Decreet of general Declarator. But though this last Action be called, an Action of special Declarator; it is in effect but an Action of Meals and Duties: In other cases also, where any thing is craved to be Found and Declared, as a right arising upon a special matter of Fact, for which no other Action can be found, that has a special name: Lawyers do now cause raise Actions of Declarator; or at least, cause adject conclusions of Declarator to other Actions, such as Reductions, etc. and these are the same with the Actions in factum, mentioned in the Civil Law.  
Some Actions are called Civil, 
Civil Actions  wherein men prosecute their Civil Rights; and some Criminal, wherein Men prosecute crimes, ad vindictam publicam.  
For further clearing of Actions, and how they ought to be libeled; I shall shortly explain the nature of a summons; 
Nature of a Summons.  and shall set done some of those actions which have special names and conclusions.  
The chief parts of a summons, are the Pursuers interest, that is to say, the right standing in his person, whereby he has good interest to pursue the Action he has intented.  
Secundo, That all the persons who should be called as Defenders, be called in the Summons, and since it is a Relevant exception against a summons, that all Persons having interest are not called; Therefore it follows clearly, that for the more security it is fit to call all Persons, who may be concerned in the debate. 
Medium concludendi.   
Tertio, The medium concludendi; that is to say, the ground whereupon the Persons called, are liable to pay and perform what is craved.  
Quarto, After all this is 
Will of the Summons.  narrated, the King in the Summons, says, Our Will is, etc. that ye cite such and such persons, etc. which is called, the will of the Summons, and which will of the Summons does comprehend, a command to the Messenger, to cite the Defenders; and expresses the number of days, upon which they are to be cited; and the places to which they are to be cited; and before whom they should compear: As also, the Conclusion craved by 
Conclusion.  the pursuer, each of which summons, almost has it own special Style and Terms; and by Act of Parliament, Writters are commanded not to alter the Ancient Style 
* K. J. 6. par. 10. Act. 13▪   
It is observable, that though the matter of fact be ordinarily narrated before the will of the summons; yet Summonss of Reduction, Improbation, Transferrance, Spulzie, and Declarators of Nonentrie; begin, at, Our Will is, etc. And then goes on to the interest of the pursuer, etc.  
In a Summons of Transumpt, the Pursuer (who in the summons is always called the Complainer) libels, that he has 
Transsumpts.  Right to the Lands whereof he craves the papers to be Transumed; and that therefore it is necessary to him to have Doubles, and transumpts of the rights; and this is the pursuers interest; and that the Defender has these Rights, or is obliged to procure him Transumpts; And therefore concludes, that the Defender should be obliged to exhibit, and produce them, to be judicially Transumed; and the authentic Transumpts to be declared as sufficient for the security of the Pursuer in the saids lands as the original writes themselves.  
In a Summons of Multiple poinding, the Complainer having narrated, that he is troubled by such and such Persons, 
Multiple Poyndings.  who do each of them pretend Right to a sum, in which he is liable; he therefore concludes against all of them, to compear to hear and see the same tried; and the Party who shall be found to have best Right to be preferred; and the other Party to be discharged from troubling and molesting him in all time coming.  
In a Summons of Transference, the Complainer libels 
Transference  that the Defender is Heir to his Debtor: And concludes, that the debt should be Transferred in him Passive as Heir; and upon the other Passive Titles; and therefore, that Letters and Executorials may be directed against him, in the same manner as they might have been directed, used, and executed against his Predecessors, before his deceass.  
These Transferrences are used when there is an Decreet obtained, or bond Registrated against the Defunct in his life-time; but if the Bond was not Registrated, then there is a Summons of Registration raised in which the pursuer concludes, that the said Bond 
Summons of Regi▪ stration  should be insert and Registrated in the Books of Council and Session, to have the Strength of a Decreet; and Executorials to be direct thereupon in manner therein mentioned.  
In a Summons of prevento; The Complainer narrates, 
Prevento.  that he having raised letters of horning, the same were Suspended upon must frivolous Reasons, to a very long day; and therefore concludes, that the Defender should bring with him the said Suspension, the blank day of blank, prevento termino: to hear and see, the same called, reasoned and discussed, with Certification, that if he sail, the Lords will cause call the Suspension, upon a copy, and admit Protestation therein, and ordain the letters to be put to further execution.  
If an Advocation be raised to 
Advoca▪ tion.  too long a day of compearance, there may be likewise a Summons of Prevento raised thereof.  
In a Summons of Contravention 
Contra: of Laborrows'.  of Laborrows; the pursuer libels, that A. B. became surty, and Laborrows for C. D. that the Complainers, Wife, Ba●rns, Men, Tenants, and Servants, should be harmless, and skaithlesse in their Bodies, and lands, etc. And then subsumes upon the prejudice done, notwithstanding of the said caution: And therefore concludes, that both the Principal and Cautioner, should be discerned to have contraveened the said Act of Caution, in manner foresaid; and therethrow, that they conjunctly and severally have incurred the foresaid pain, the one half to the King, and his Thesaurer, and the other half to the Complainer, as Party grieved.  
In a Declarator of property, the Complainer narrates his right 
Declare: of Property.  to the lands, and how long and after what manner, he and his Authors have been by themselves, their Tenants, and others having Right from them, in the peaceable possession of the said's lands; until of late that he is molested, and troubled by the Defender; and therefore concludes that it should be found and declared, that he has the sole, good, and undoubted Right, and interest in and to the said's Lands; and that therefore the said Defender, and his Tenants, and Servants and others, of their causing, and commanding, should be discerned, not to trouble, nor molest them for the future, in their peaceable possessioon, bruiking, and joysing thereof.  
If the Complainer designs only to maintain his possession; without bringing his property in controversy he raises a Summons of Molestation; In which he only concludes, that they should desist, and cease from troubling and molesting him 
Summons of Mole▪ station.  in the peaceable possession of his lands.  
In a summons for poinding the ground, the Pursuer narrates, 
poinding of the ground.  that he stands infest, and seized in an annualrent of to be uplifted, out of the lands of and therefore concludes against the Tenants of these lands; and the Heritor for his interest, to hear and see Letters directed to Messengers at Arms, Sherriff in that part, to Fence, Arrest, Apprise, Compel, Poind, and Distrinzie the readiest Goods and Gear, that are presently upon the lands; and yearly and termly in time coming, during the not redemption of the annualrent.  
In a summons of Spulzie, the King commands Messengers, etc. (which is the stile of all Summonss, which begin with, Our Will is,) to Summoned, Warne, and Charge the Defender, to compear and 
Spulzie  answer at the instance of the Pursuer against whom the spulzie after specified was committed; that is to say, the Defenders for their Wrongous, Violent, and Masterful coming by themselves; and their servants, complices, and others in their name; of their causing, sending, bounding out, command, reset, assistance, and ratiabition, to the lands of upon the day of and for their Wrongous, Violent, and Masterful spoilziation of the Goods (to be condescended on) And then concludes, that they should pay the prices extending to and the profits, that the Complainer might have made of the said▪ Goods daily since the said spulzi●tion, extending to &c▪  
In a Summons of wakning▪ the Complainer after narrating 
Wakning.  that he had raised such ● Summons, which he had suffered to lie over and sleep▪ for a year; (for there need● no wakning if there was any judicial Act, or Minute upon the Summons within th● year) and therefore concludes against all the Person● cited in the first Summons, to hear and see the foresai● action called, wakened, and begun, where it last left insisted into, and justice Administrate therein, till the final decision of the cause.  
A Furthcoming is that Action, 
Furthcoming  wherein the Arrester lybels, that he having raised ●etters of Arrestment, he caused,  
Messenger lawfully Fence, and Arrest all debts owing by ●he Defender to the Debtor, ●o remain under Arrestment; and to be made furthcoming to him; and therefore concludes, ●hat the Defender should be discerned to make furthcoming payment, and delivery to the said Complainer, of the sum of adebted, restand, own be him to the said Debtor. 
Breach of Arrestment.   
If notwithstanding of the Arrestment, the Debtor pay his own Creditor; there is an summons for breaking of Arrestment, wherein after the Arrestment, and payment is narrated, the Pursurer concludes, that the Defender should be discerned to have broken the Arrestment then standing; an● not lawfully and duly loosed; an● therefore to be punished in his person, and goods, conform to th● Laws of the Realm, in example ●● others.  
Though the Accumulati●● of several actions into one libel was not allowed by the Ci●●● Law; yet it is allowed by 
Accumulation of Actions  Ours, in which we may no● only pursue several persons▪ for several debts in one libel which we call by a general name, an actions against debtors but we may likewise accumulate several conclusions, against one and the same person though they be of different nature's; as Reductions, Improbations, and a declarator of property, and actions of general, and special Declarator; in all which it is a general rule, quot articul●● tot libelli.  
But when many actions are competent, for one and the same thing, as if a Messenger be deforced, we may pursue ●he Deforcer Criminally; (which will infer confiscation of moveables, 
Concu●sus actionum.  or civilly for payment of our debt; and the pursuing of ●he one does not extinguish, or consume the other; and either the Criminal or Civil action may be first pursued; and ●n the concourse of all actions, ●f the actions which concur ●ave different conclusions, as ●n the foresaid instance, where 
Defor●ment.  the Criminal action of Deforcement concludes Confiscation, and the Civil action only payment; Though the Defender be assolzied in the Criminal Pro●●ss, yet he may be pursued Civilly, and the deforcement referred to his oath.   

Title II. Of PROBATION.  
FOR understanding the matter of Probation, it i● fit to know, that al● Probation is either by Write, by Oath, or by Witnesses. 
Probation.   
Probation by Write, has been formerly explained in the Title concerning Obligations by 
By Write.  write.  
Probation by Oath, is when either the Party or Judge; refers any thing to the oath of the contrare party; but regularly, no man's Right can be taken away by oath; except 
By Oath.  he who has the Right, refer the same to the adversaries oath; but when there is a former probation already adduced, the judge sometimes gives an oath of supplement, which is so called, because it is given to supply the Probation already ●ed.  
An Oath of Calumny, is that 
Oath of Calumny.  whereby either the Pursuer, or Defender is obliged to swear that the pursuit, defence, reply, etc. are not groundless, and unjust, and this may be 
K: I: 1● par: 9: act 12●  craved by either Party, at any time during the dependence; and if it be refused, the pursuer will have no further action; nor the Defender will not be allowed to insist any further in that defence, Duply, etc. whereon his Oath of Calumny is craved.  
An Oath in Litem, is that 
Oath in Litem.  which Law allows the judge to defer to him who is injured; for proving the quantities of the thing wherein he is injured; V. G. If I pursue Titius, for having broke up my trunk; and I have proved that he did break it up: the judge will refer to my oath, what I had in the Trunk; and this is allowed both in odium of him who commits the injury; and lest the person unjustly injured should loss his Right for want of Probation.  
A qualified Oath, is, that whereby he to whose Oath any thing is referred, depones, not simply; but circumstantially; which we call to depone with a 
A Qualified Oath.  quality; V. G. if I pursue Titius for payment of 100 lib. which he promised to pay, who compears, and depones, that he did indeed promise; but it is as true, that he allowed the Pursuer to intromit with goods belonging to the Deponent, equivalent to the sums due by the promise: with which accordingly he has intromitted: And those qualified Oaths generally are admitted; if the quality be intrinsic, that is to say, necessarily employed in the nature of the thing; As in the foresaid instance.  
But if the quality be extrinsic, it in effect resolves in a defence, and so must be proven otherways, than by the qualified oath; as if a debt be referred to a party's oath, who depones, that he acknowledges the debt, but that it is paid; this will not be admitted as a quality, but is in effect a defence which must be proven, otherwise than by his oath.  
Probations by witnesses, having been allowed in all cases of old, until the falseness of men forced our Lawgivers, to allow nothing above 100 lib. to be proven without write, or oath, and promises, to be only proven by oath; this Probation by witnesses is therefore called, probatio pro ut de jure; and it is fit to know, that none within degrees defendant, that is to say, who are Cousin germane, or of neare● Relations, can be witnesses; no● Women, nor Tenants, who have no Tacks, nor persons declared infamous, nor Domestic Servants▪ nor such as may gain, or loss by the cause; nor such as have given partial counsel; that is to say, advice to raise or carry on the pursuit; or such as have told what they will depone; which we call prodere testimonium; nor such as compear to depone without being cited; whom the Law calls, Testes ultronios, and rejects them, because of their suspected forewardness; All others except these may depone, and are called habile witnesses: And if habile witnesses refuse to come when they are cited, there will be first horning, and then caption directed against them; which are called first and second diligences, but their escheates will 
Presumption.  not fall upon that horning.  
Presumptions, are a kind of probation, and a presumption is defined to be a strong ground or argument, whereby a judge has reason to think, or be convinced, that such a thing is true; and they are divided into presumptiones juris, which though they be strong, yet may be taken off by a contrary probation; as if a man threaten to poison another, if the person was thereafter poisoned, it is presumable that he was poisoned by the Threatener; and presumptiones juris & de jure; ubi lex constituit super presumpto; and thus the Law presumes, that an ultronius witness, who offers him. self, is partial; and therefore Statutes upon that presumption, that he shall not be received; and against these presumptions, no probation can be admitted.   

Title III. Of Sentences and their Execution.  
AFTER a Decrect is extracted, the Obtainer thereof raises letters of horning thereon; whereby the party discerned is charged to pay or fulfil the will of the Decreet; under the pain of Rebellion; and this Decreet can only be quarrelled by Reduction, or Suspension, in both which the reasons whereupon it is quarrelled are set down; nor can a Decreet of the Lords, be taken away without Reduction; and if there has been a Debate in the first instance, (for so we call the action before the Decreet; as we call Reduction and Suspension the second instance;) then nothing that was competent to have been proponed before the Decreet, will be admitted but will be repelled, as competent and omitted; for else there should be no end of Debate; but yet if any thing have newly Emerged; or has newly come to the Parties knowledge, these are and must be received, if he depone, that he knew not the same formerly.  
The ordinar effect of a Suspension is to stop the Execution of Sentences for a time; And it is a Summons, wherein the Party alleged injured by a Decreet, does cite the Party who has obtained the Decreet 
Suspension.  before the Lords, (for no inferior Court can Suspend,) to answer to the Reasons offered by him, for Suspending Execution upon that Decreet: Which Summons proceeds upon a Bill, wherein the reasons are represented to the Lords; for though sometimes, the Lords ordains the reasons to be debated upon the Bill; yet ordinarily they ordain letters of Suspension to be raised: If the Decreets be in foro, than the Suspension must pass by the whole Lords in time of Session, and by three Lords in time of Vaccance; but other Decreets may be Suspended by any one Lord.  
There are other reasons allowed to be insisted on beside these in the Bill, and these are called eiked reasons, and a man may suspend upon new reasons, as oft as he pleases for competent and omitted is not received against Suspensions.  
If the Suspension be called, discussed, and the letters found orderly proceeded, that is ordained to be put to further Execution: Then Letters of Caption may be raised; whereby all the Inferior judges and Magistrates, 
Caption  are ordained to concur with the Messenger, in apprehending the Rebel, and putting him in prison; which if they refuse: or if the Prisoner thereafter 
Subsid: Action.  escape out of their prison, they are liable to pay the debt; by a subsidiary action.  
Decreets are executed likewise by Poinding, and Arrestment upon the Warrant in the letters of horning, which are fully treated in their proper places, vide supra, Tit. Poinding, and Arrestments. Tit. 5. Part 3.  
As to execution of immovable goods, which is by Comprising and Adjudication, the same is formerly treated, Part 2 tit. 12.  
If the Decreet be, to remove 
Ejectino.  from lands, than the Party discerned to remove, being denounced Rebel, for not removing; the Sherriff, or judge ordinar, is charged to eject, who comes to the land, and puts out the fire, or casts out some of the plenishing; But if a man continue to possess in spite of all Law, after 
Letters of Fire and Sword.  he is legally ejected, the Privy Council will give Letters of Fire and Sword, to the Party injured; Commissionating the Sherriff, and others whom he will name, to dispossess him by the Sword, to raise Fire, and use all other severities, for which the Commission does indemnify them.  
If such as have debatable Rights, choose rather an amicable, than a judicial decision; they subscrive a Submission to Arbiters, and if they please, 
Decreets Arbitral.  to an oversman, and another blank on the back of the Submission; wherein they may fill in their Decreet Arbitral: And though it be free to these Arbiters to accept; yet if they once accept, the Lords will grant Letters of Horning to force them to decide.  
Though these Arbiters are not tied to the strict solemnities of Law, yet they must observe material justice; and therefore, they must advertise Parties, that they may give in claims (for a claim to Arbiters is in place of lybels to judges;) and must allow Terms to prove; And though Equity is to them a Rule, as Law is to other judges; yet if either Party be enormly lesed, the Lords will suspend and reduce their Decreets. If the Submission bear no special day, betwixt and which they are tied to decide, they must decide within a year of the Submission; and if Witnesses will not voluntarly appear before them, the Lords will upon a Bill, grant letters of horning to force them to appear.   

Title IV. Of CRIMES.  
CRIMES are either Private, where the injury is committed 
Crimes.  against private Persons; or Public, where it is committed immediately against the Commonwealth.  
Private Crimes, called also delicta, in the Civil Law, oblige 
Delicta  the Committers to repair the Damage, and Interest of the private Party.  
Crimes are in Scotland either punished capitally, by death; or pecunially, by a certain fine; or Arbitrarly at the discretion of the judge.  
Capital Crimes are 
Treason.  Treason, which is punished by forefaulture of life, lands, & goods.  
It is Treason in any man, to Plot, contrive, or intent death, or destruction to the King's Majesty; or to lay any restraint upon his Royal Person; or to deprive, depose, or suspend him 
* K. J. 2. par. 6. act 24. K. C. 2 par. 1. Sess. 3. act 112. , or to endeavour the alteration or diversion of the Succession 
* K. C. 2 par. 3. act 2. ; to Levy war against the King, or any Commissionated by him; or to entice others to invade him 
* Par. 1. act 2. , to make Treaties, or Leagues with Foreign Princes; or amongst themselves without his consent 
* K. C. 2 par. 1. ses. 1. act 4. . To rise in fear of war against the King; to raise a frey in his host 
† K. J. 2 par. 1●. act. 54. K. J. 2. par. 6. act 24. , to Assail Castles where he resides 
* K. J. 6. Par. 8. act 129. & 150. ; to impugn the Authority of the three Estates; to decline the King's Authority; not to come out to the King's Host; or to desert it 
* K. J. 1. Par. 1. Act 4. ; to maintain or reset traitors 
‡ Act 97 Par. 7. ; to conceal Treason; to countersite the King's coin; and to raise wilful fire 
* K. J. 5. Par. 3. Act 8. ; all which are Species of high Treason.  
We have a kind of Treason in Scotland, which we call Statutory 
Stat: Treason.  Treason; because it is merely introduced by statute, and not by common Law: viz. Theft in landed men 
‡ K. J. 6. Par. 11. Act 50. ; because of the danger of that kind of theft; murder under trust 
* Ibid. Act 51. ; as if one man should kill another, when he invites him to his house; or a Tutor should kill his Pupil; which because of the easiness and attrociousness of the Crime is made Treason; The firing of Coals heughs 
* K. J. 6. Par. 12. hast 146. , assassination 
* K. C. 2 Par. 3. Act 13. ; & the pursueing another for Treason without being able to prove it 
‡ K. J. 6. Par. 11. Act 49. . All jesuits, Seminary Priests, and traffecking Papists 
* K. J. 6. Par. 12. act 120. ; and all thiefs, who take bonds from lealand honest men, for re-entering when they please: All who purchase benefices at Rome; are guilty of Treason 
‡ K. J. 5. Par. 7. act 125 K. Ja. 6, Par. 6. Act 69. .  
No Crime can be pursued against a man or his heirs, after his death; except that Treason which is committed against the King's Person, or Commonwealth.  
The other Capital crimes are Blasphemy, Man's slaughter, or Homicide; for all Homicide is Capital with us: except it be Casual 
* K. C. 2 Par. 1. Sess. 1. Act 22. , or Homicide in self defence.  

* K. J. 1. Par. 13. Act 137 and 14.  Theft is punishable by death; but we call small theft pickery, and it is only punishable arbitrarly 
* K. I: 3: Par: 7: Act 60. .  
Notour Adulterey, that is to say, where there are Children of the Marriage: or where the adulterers converse openly at bed and board; or being discharged by the Church to converse, do continue to converse is punishable by 
* Q: M: Par: 9: Act 74: K: Ja: 6: Par: 6. Act 105  death; but simple adultery is only punishable arbitrarly. Incest *, Buggery, Duels 
† K: I: 6: Par: 1: Act 14: , the invading of any of his Majesty's Officers, for doing his Majesty's service 
* K: I: 6 p: 16: act 12: ; Forgery 
† K: I: 6 par: 16: act 4: , Witchcraft, and the consulters of Witches 
* I: 5: p: 6: act 8: , Sorners; that is to say, such as masterfully take Meat and Drink from the King's People without payment 
† Q: M: act 22: par: 7:  : All wilful hearers of Mass 
* K: I: 3: p: 10: act 71: , and conceallers of the same; Mutilation 
† Q: M: p: 9: act 73: , which is the disabling of a member, 
† K: I: 1: par: 1: act 5: & 7:  
* K: I: 6: p: 14: act 193:  
† K: I: 6: p: 6: a: 76:  (though de praxi; this be ordinarily punished with an arbitrary punishment: Or the Authors of infamous libels, Seditious Speeches, tending to sedition; the strickers of any judge in judgement; mixers of Wine 
* K. J. 3. Par, 12. Act 89. , and committers of hame-sucken, by which we understand the assaulting or beating any man in his house.  
The Crimes to be pecunially punished are the slayers of Red-fish 
* * K. J. 1. Par: 1: act 1: & Act 16: Par: 14: ●act: 10 ▪ killers of Daes, Deer, Roes 
† K. I 1. Par. 1. act 19 ; destroyers of Bee-hyves, Fruit-trees, Greenwood; kindlers of Mure-burn; except in the Month of March; Steeping of Green-Lint in running Waters. or Loches; such as are guilty of abominable Oaths; and Furnication.  
Crimes to be arbitrarly punished at the discretion of the judge, are negligence in the King's judges and Officers 
* K. J. 2. Par. 14. act 76. , and such as unjustly murmur against them 
† K. J. 5. Par. 7. act 104. ; breakers of the King's protection 
* K. J. 1. Par. 11. act 134.  : the bringing home of erroneous Books 
† K. J. 6. Par. 7. act 106. ; and the troublers of Churchmen; Craftsmen 
* K: I: 1: Par: 5: act 80: K: Ja: 5: Par: 7: act 111:  who wrongously refuse to fulfil the work which they have taken in hand; verbal injuries, and scandals, against private Parties.  
It is fit to know, that no punishment left arbitrary by the Law, to the discretion of the judge, can be by him extended to death; and that wherever the Law appoints death to be inflicted, the offenders moveables fall to the King; though the Law does not express the same; and though the sentence express not the confiscation.  
There are other Crimes, whereof the punishment is not reduceable to any of these kinds; and thus perjury, and Bigamy, (which is a kind of perjury; because, a man who marries two wives breaks his Matrimonial oath,) are punishable by confiscation 
* Q. Ma Par. 5. Act 19  of all the Offenders Movable Goods, Imprisonment, and Infamy.  
Deforcers of Messengers, and breakers of arrestment, are punishable by confiscation of all their Movables 
† K. J. 6. Par. 7. Act 118 Par. 12. Act 150 ; Forestallers of Mercats 
* Ibib. Act 148 , by buying things before they be presented to the Mercat; or before the Mercat be proclaimed, are punishable by Imprisonment, and Confiscation of what is bought.  
Ocker, or Usury 
* K. J. 6: Par. 11. Act 52. Par. 14. Act 222 Par. 15. Act 257 , which is the taking more than the annualrent allowed; or the taking annualrent before the term of payment; is punished by loss of the principal sum; for the Debtor is to be free from the Obligation, and the write being reduced, the sum belongs to His MAJESTY.  
Stellionat or the making of double Rights; is punished by infamy 
* K. J. 5. Par. 7. Act 15. K: Ja. 6. Par. 12. Act 141 ; and their persons are at the Kings will.  
The Keepers of Victual to a dearth, are punishable as 
* K. J. 2. Par. 6. Act 22. K. Ja. 6. Par. 6. act 93.  Ockerers; and by the Civil Law, per leg: Iul: de Annona. Bribing of judges is punishable by infamy and deprivation; Plagium or the stealling of men, is a particular Crime by the Civil Law; but is a species of theft with us. And Theft-boot which is the saving a thief by fyning with him, is punishable as theft 
* K. J. 6. par. 13. act 137. . Baratrie, or the obtaining benefices from Rome, is punishable by 
† K. J. 6. Par. 1. act 2. Par. 6. act 72  banishment and infamy. Ambitus, or the obtaining offices by unjust means, is not punishable under Monarchy.  
The punishment of Crimes is taken off, either by Remissions, which must pass the Great Seal; and must express the greatest Crime 
† K. J. 4 Par. 6. act 62. , for which the Remission is granted: Or by Indemnities, which is a General Remission granted by the King or Parliament; betwixt which two there is this difference, that the obtaining a Remission does not free the obtainer, from 
* K. J. 2. Par. 14. act 74. K. Ja. 5. Par. 3. act 7.  assything the party, that is to say, from repairing his losses; since it's presumed the King does only discharge what belonged to him, which is, vindicta publica; But not what is the interest of private parties, or vindicta privata; but because all the people are represented in Parliament: the King and Parliament may by their Indemnity; discharge both the one and the other.  
He who found'st on a Remission, acknowledges the Crime; but he who found'st on an Indemnity does not.  
The King likewise restores men sometime against forefaultures; which Restitution is either by way of justice, finding that the person was unjustly condemned; and then the Person condemned is restored to all that ever he had; and he recovers not only his fame, but his estate; though transmitted to third parties. 
† K. J. 6. Par. 18. Act 4.  Or secundo, the Restitution is by way of grace and mere favour; and then the party condemned cannot recover, what was bestowed by the King upon third parties; for the King cannot recall what was once Legally and Warrantably granted by him.    
FINIS.