The institutions of the law of Scotland by Sir George Mackenzie ...
         Mackenzie, George, Sir, 1636-1691.
      
       
         
           1684
        
      
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             The institutions of the law of Scotland by Sir George Mackenzie ...
             Mackenzie, George, Sir, 1636-1691.
          
           [14], 385 p.
           
             Printed by John Reid,
             Edinburgh :
             1684.
          
           
             First edition.
             Includes legal citations.
             Reproduction of original in Cambridge University Library.
          
        
      
    
     
       
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         eng
      
       
         
           Law -- Scotland.
        
      
    
     
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           Edinburgh
           ,
           March
           18.
           1684.
           
        
         
           IT
           is
           ordered
           by
           the
           Lords
           of
           His
           Majesties
           most
           honourable
           Privie
           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
           Majesties
           Advocat
           ,
           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
           MAJESTIES
           Advocat
           .
        
         
           EDINBURGH
           ,
           Printed
           by
           
             Iohn
             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
           Easie
           way
           of
           Writing
           these
           ,
           is
           by
           going
           
           from
           the
           first
           Principle
           to
           a
           second
           ,
           and
           from
           that
           to
           a
           third
           :
           The
           admir'd
           Method
           of
           Euclid
           in
           his
           Elements
           ,
           though
           much
           neglected
           by
           all
           ,
           who
           have
           written
           
             Institutions
             of
             Law
          
           ;
           in
           which
           ,
           not
           onely
           many
           things
           unnecessary
           are
           insert
           ,
           as
           almost
           all
           the
           third
           book
           of
           
             Justinians
             Institutions
          
           ;
           the
           Differences
           betwixt
           the
           Sabiniani
           and
           
             Proculiani
             ,
             &c.
          
           
           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
           contraverted
           ;
           in
           all
           which
           I
           have
           proceeded
           ,
           building
           alwayes
           one
           Principle
           upon
           another
           ;
           
           and
           expressing
           every
           thing
           in
           the
           Terms
           of
           the
           
             Civil
             Law
          
           ,
           or
           in
           the
           Stile
           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
           Volums
           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
           moe
           Lawyers
           are
           ignorant
           for
           not
           understanding
           the
           first
           Principles
           ,
           than
           for
           not
           having
           read
           many
           Books
           ;
           as
           it
           is
           not
           the
           having
           travelled
           long
           ,
           but
           the
           having
           known
           the
           way
           ,
           which
           brings
           a
           man
           to
           his
           Lodging
           soon
           ,
           and
           securely
           .
        
         
           My
           Lord
           ,
           You
           observ'd
           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
           Iustice
           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
           justifie
           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
             Iurisdictions
             ,
             and
             Iudges
             in
             general
             
               Page
               9
            
          
           
             
               Title
               III.
            
             Of
             the
             Supream
             Iudges
             ,
             and
             Courts
             of
             
               Scotland
               Page
               17
            
          
           
             
               Title
               IV.
            
             Of
             inferiour
             Iurisdictions
             and
             Courts
             
               Page
               27
            
          
           
             
               Title
               V.
            
             Of
             Ecclesiastick
             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
             wayes
             of
             acquiring
             Property
             and
             Dominion
             
               Page
               74
            
          
           
             
               Title
               II.
            
             Of
             the
             difference
             betwixt
             
             Heritable
             ,
             and
             Moveable
             Rights
             
               Page
               83
            
          
           
             
               Title
               III.
            
             Of
             the
             Constitution
             of
             Heritable
             Rights
             ,
             by
             Charter
             and
             Seasin
             
               Page
               92
            
          
           
             
               Title
               IV.
            
             Of
             the
             several
             kinds
             of
             Holding
          
           
             
               Title
               V.
            
             Of
             the
             Casualities
             due
             to
             the
             Superiour
             
               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
             Publick
             Infeftments
             
               Page
               14●
            
          
           
             
               Title
               VIII
            
             .
             Of
             Redeemable
             Rights
             
               Page
               15●
            
          
           
             
               Title
               IX
            
             .
             Of
             Ser●itudes
             
               Page
               16●
            
          
           
             
               Title
               X.
            
             Of
             ●eynds
             
               Page
               18●
            
          
           
             
               Title
               XI
            
             .
             Of
             Inhibitions
             
               Page
               19●
            
          
           
             
               Title
               XII
            
             .
             Of
             Comprysings
             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
             accessory
             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
             Movea●●es
             
               Page
               323
            
          
           
             
               Title
               IX
            
             .
             Of
             ●●st
             Heir
             and
             Bastards
             
               Page
               330
            
          
        
         
           
           
             PART
             IV.
             
          
           
             
               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
               Countrie
               .
            
             
             
               The
               
                 Law
                 of
                 Nature
              
               comprehends
               those
               Dictats
               ,
               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
               Man-kind
               onely
               ,
               dictated
               by
               right
               Reason
               ,
               and
               is
               divided
               into
               the
               Original
               and
               
                 primarie
                 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
               secundarie
               ,
               and
               
                 consequential
                 Law
                 of
                 Nature
              
               ,
               consisting
               of
               these
               general
               conclusions
               ,
               in
               which
               ordinarly
               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
               ,
               securitie
               of
               Ambassadours
               ,
               and
               the
               like
               .
            
             
               Civil
               ,
               or
               
                 Municipal
                 Law
              
               ,
               are
               the
               particular
               Laws
               ,
               and
               Customes
               of
               every
               Nation
               ,
               or
               people
               ,
               who
               are
               under
               one
               
                 Soveraign
                 Power
              
               .
            
             
               The
               Romans
               ,
               having
               studied
               with
               great
               exactness
               ,
               the
               principles
               of
               Equity
               ,
               and
               Iustice.
               Their
               Emperour
               Iustinian
               ,
               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
               Customes
               ,
               have
               receded
               from
               *
               it
               .
               And
               by
               the
               common
               Law
               in
               our
               
                 Acts
                 of
                 Parliament
              
               is
               meant
               the
               *
               
                 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
               Authoritie
               ,
               as
               being
               compiled
               by
               private
               Persons
               ,
               at
               the
               desire
               of
               the
               Popes
               ,
               especially
               since
               the
               Reformation
               ;
               yet
               our
               
                 Ecclesiastick
                 Rights
              
               ,
               were
               settled
               thereby
               before
               the
               Reformation
               :
               And
               because
               many
               things
               in
               that
               Law
               ,
               were
               founded
               upon
               
                 material
                 justice
              
               ,
               and
               exactlie
               calculated
               for
               all
               Church
               men
               ;
               Therefore
               ,
               that
               Law
               is
               yet
               
               much
               respected
               among
               us
               ,
               Especially
               in
               what
               relates
               to
               
                 conscience
                 ,
                 and
                 Ecclesiastick
                 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
               vertue
               of
               a
               particular
               
                 Act
                 of
                 Parliament
              
               ,
               *
               impowering
               them
               ,
               to
               make
               such
               constitutions
               as
               they
               shall
               think
               fit
               ,
               for
               ordering
               the
               ●rocedur
               ,
               and
               forms
               of
               
                 Admini●trating
                 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
               
               
                 Kings
                 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
               ,
               joyned
               by
               Skeen
               to
               them
               ,
               are
               called
               the
               
                 old
                 books
                 of
                 Our
                 Law
              
               ,
               by
               many
               express
               
                 Acts
                 of
                 Parliament
              
               *
               .
               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
               Custome
               .
            
             
               Our
               
                 unwritten
                 Law
              
               ,
               comprehends
               the
               constant
               tract
               of
               decisions
               ,
               past
               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
                 customes
              
               ,
               make
               up
               a
               part
               of
               our
               
                 unwritten
                 Law
              
               ,
               which
               have
               been
               universally
               received
               among
               us
               .
               The
               
                 tacite
                 consent
              
               of
               the
               people
               ,
               operating
               as
               much
               in
               these
               ,
               as
               their
               express
               consent
               does
               ,
               in
               making
               Laws
               ;
               And
               such
               is
               the
               force
               of
               custome
               ,
               or
               consuetude
               ,
               that
               if
               a
               Statute
               ,
               after
               long
               standing
               has
               never
               been
               in
               observance
               ,
               or
               having
               been
               ,
               has
               run
               
                 in
                 desuetu●e
                 ;
                 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
               foreward
               †
               though
               
                 declaratory
                 Laws
              
               regulat
               what
               is
               past
               ,
               since
               their
               design
               
               is
               ,
               to
               declare
               what
               was
               
                 Law
                 prior
              
               to
               the
               statute
               ,
               and
               to
               direct
               Iudges
               ,
               how
               to
               decide
               in
               cases
               that
               needed
               the
               decision
               of
               a
               Parliament
               .
            
             
               Laws
               should
               command
               ,
               not
               perswade
               ;
               and
               though
               the
               rubrick
               (
               or
               title
               )
               and
               narrative
               of
               the
               statute
               ,
               may
               direct
               a
               doubting
               Iudge
               ,
               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
               Analogie
               ,
               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
               Paritie
               of
               Reason
               ,
               often
               prevails
               with
               our
               Judges
               ,
               to
               extend
               Laws
               to
               Cases
               ,
               that
               are
               founded
               on
               the
               same
               reason
               ,
               with
               what
               is
               expresly
               determined
               by
               the
               Statute
               .
            
          
           
             
               Tit.
               II.
               Of
               Iurisdiction
               ,
               and
               Iudges
               in
               General
               .
            
             
               HAving
               resolved
               to
               follow
               Iustinians
               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
               ,
               
                 &c.
                 
                 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
               Ecclesiastick
               ,
               the
               chief
               of
               both
               which
               are
               Iudges
               ,
               with
               whom
               we
               shall
               begin
               .
               And
               for
               the
               better
               understanding
               of
               their
               Office
               ,
               it
               is
               fit
               to
               know
               ,
               that
               
                 Iurisdiction
                 ,
                 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
                 maner
                 as
                 either
                 his
                 commission
                 ,
                 law
                 ,
                 or
                 practice
                 does
                 allow
                 .
              
            
             
               All
               Iurisdiction
               flows
               originally
               from
               the
               King
               *
               so
               that
               
               none
               have
               power
               to
               make
               Deputs
               ,
               except
               it
               be
               containd
               in
               their
               commission
               ;
               And
               if
               a
               Depute
               ,
               appoint
               any
               under
               him
               ,
               that
               sub-depute
               is
               called
               properly
               a
               substitute
               ;
               and
               every
               Iudge
               is
               answerable
               for
               the
               Malversation
               of
               his
               depute
               .
            
             
               Iurisdiction
               is
               either
               Cumulative
               ,
               or
               
                 Privative
                 ;
                 Cumulative
                 jurisdiction
              
               ,
               is
               when
               two
               Judges
               ,
               have
               power
               to
               judge
               the
               same
               thing
               ;
               And
               generally
               ,
               it
               is
               to
               be
               remembred
               ,
               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
               *
               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
               Iurisdiction
               ,
               without
               his
               Territory
               ,
               his
               sentence
               is
               null
               :
               and
               among
               those
               who
               have
               a
               
                 Cumulative
                 Iurisdiction
              
               ,
               he
               who
               first
               cites
               ,
               can
               only
               Judge
               ;
               and
               this
               is
               called
               ,
               
                 jus
                 Praeventionis
              
               .
            
             
               
                 Privative
                 Iurisdiction
              
               ,
               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
               .
            
             
               Iurisdiction
               ,
               is
               founded
               to
               any
               Judge
               ,
               either
               ,
               because
               the
               defender
               dwels
               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
               Iurisdiction
               ,
               is
               said
               to
               be
               prorogate
               ,
               when
               a
               person
               not
               other
               wayes
               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
              
               ,
               *
               and
               the
               Test
               ;
               ‡
               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
               rebell
               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
               Advocat
               ,
               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
              
               .
            
             
               Iurisdiction
               is
               either
               
                 Supream
                 ,
                 inferior
              
               ,
               or
               mixt
               :
               These
               courts
               are
               properly
               called
               supream
               ,
               from
               whom
               there
               is
               no
               appeal
               to
               any
               higher
               Iudicatory
               ,
               such
               as
               the
               
                 Parliament
                 ,
                 Privy
                 Council
                 ,
                 Lords
                 of
                 Session
                 ,
              
               the
               
               
                 Criminal
                 Court
              
               ,
               and
               Exchequer
               :
               Inferior
               Judges
               are
               such
               ?
               whose
               decreets
               ,
               and
               sentences
               are
               lyable
               to
               the
               reviewes
               of
               the
               
                 supream
                 Courts
              
               ,
               as
               
                 Sherriffs
                 ,
                 Stewards
                 ,
                 Lords
                 of
                 Regality
                 ,
              
               Inferior
               Admirals
               ,
               and
               
                 Commissars
                 ,
                 Magistrates
                 of
                 Burghs
                 Royal
                 ,
                 Barrons
                 ,
              
               and
               Iustices
               of
               Peace
               .
               Mixt
               Iurisdiction
               ,
               participats
               of
               the
               nature
               ,
               both
               of
               the
               supream
               ,
               and
               
                 inferior
                 courts
              
               ;
               such
               a
               jurisdiction
               have
               the
               
                 high
                 Admiral
              
               ,
               and
               
                 Commissars
                 ,
                 of
                 Edinburgh
              
               .
               Both
               which
               are
               in
               so
               far
               Supream
               ;
               that
               
                 Maritim
                 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
               Iudge
               ,
               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
               *
               Statute
               ,
               they
               can
               only
               be
               declined
               incases
               relating
               to
               their
               Fathers
               ,
               Brothers
               ,
               Sons
               ,
               Nephews
               ,
               or
               Uncles
               ;
               which
               by
               a
               late
               statute
               *
               ,
               is
               likewise
               extended
               to
               the
               degrees
               of
               affinity
               ,
               and
               to
               the
               
                 Lords
                 of
                 privy
                 Council
              
               ,
               and
               Exchequer
               ,
               and
               the
               Commissioners
               of
               Iusticiary
               ,
               and
               to
               all
               other
               Iudges
               within
               the
               Kingdom
               .
            
             
               The
               members
               of
               the
               
                 Colledge
                 of
                 Iustice
              
               ,
               have
               this
               priviledge
               ,
               that
               they
               cannot
               be
               pursued
               before
               any
               inferior
               
               Iudge
               ;
               and
               if
               they
               be
               ,
               the
               Lords
               will
               Advocate
               the
               cause
               to
               themselves
               .
            
          
           
             
               Tit.
               III.
               Of
               the
               Supream
               Iudges
               ,
               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
               ,
               *
               deryving
               his
               power
               from
               GOD
               Almighty
               alone
               *
               ,
               and
               so
               not
               from
               the
               people
               .
               The
               special
               priviledges
               that
               he
               has
               ,
               are
               called
               ,
               
                 His
                 Prerogative
                 Royal
              
               ;
               such
               as
               ,
               that
               he
               only
               can
               make
               Peace
               ,
               or
               Warr
               ,
               call
               
                 Parliaments
                 ,
                 Conventions
                 ,
                 Convocations
              
               of
               the
               Clergy
               ,
               make
               Laws
               *
               ;
               And
               generally
               all
               meetings
               called
               without
               his
               speciall
               command
               
               are
               punishable
               *
               ,
               he
               only
               can
               remit
               crimes
               ,
               legittimate
               bastards
               ,
               name
               Iudges
               ,
               and
               Councilors
               ,
               give
               tutors
               Dative
               ,
               and
               naturalize
               strangers
               ;
               And
               is
               
                 Supream
                 over
                 all
                 persons
                 ,
                 and
                 in
                 all
                 causes
                 ,
                 as
                 well
                 Ecclesiastick
                 as
                 Civil
              
               *
               .
            
             
               The
               Parliament
               of
               old
               ,
               was
               only
               the
               
                 Kings
                 Barron
                 Court
              
               ,
               in
               which
               all
               free-holders
               were
               oblidged
               to
               give
               sute
               ,
               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
               rediculous
               to
               think
               ,
               that
               the
               
                 Kings
                 power
              
               flowed
               from
               them
               .
            
             
               The
               Parliament
               is
               called
               by
               Proclamation
               ,
               now
               upon
               fourty
               dayes
               ,
               tho
               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
               Barrons
               ,
               in
               which
               estate
               are
               comprehended
               ,
               all
               
                 Dukes
                 ,
                 Marquesses
                 ,
                 Earles
                 ,
                 Viscounts
                 ,
                 Lords
                 ,
              
               and
               the
               Commissioners
               ,
               for
               the
               Shires
               ;
               for
               of
               old
               ,
               all
               Barrons
               ,
               who
               held
               of
               the
               King
               ,
               did
               come
               ;
               but
               the
               estates
               of
               lesser
               Barrons
               not
               being
               able
               to
               defray
               this
               charge
               ,
               they
               were
               allowed
               to
               send
               Commissioners
               for
               every
               Shire
               .
               *
               And
               generally
               ,
               every
               Shyre
               sends
               two
               ,
               who
               have
               their
               charges
               born
               by
               the
               Shyre
               .
               Tertio
               ,
               The
               Commissioners
               for
               
                 Burghs
                 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
               fourty
               days
               ,
               that
               the
               Lieges
               may
               know
               them
               *
               .
            
             
               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
               ,
               summarly
               by
               the
               King
               ;
               And
               yet
               they
               cryed
               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
               publick
               Government
               ;
               in
               order
               to
               which
               ,
               they
               punish
               all
               Ryots
               ,
               for
               so
               we
               call
               breach
               of
               the
               peace
               .
               They
               sequestrate
               Pupills
               ,
               gives
               aliments
               to
               them
               ,
               and
               to
               wives
               ,
               who
               are
               severely
               used
               by
               their
               husbands
               ,
               and
               many
               such
               things
               ,
               which
               require
               such
               
                 summar
                 procedour
              
               ,
               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
               
                 Iudges
                 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
               President
               ,
               who
               preceeds
               in
               the
               Chancellours
               absence
               ,
               and
               it
               has
               its
               own
               
                 Signet
                 and
                 Seal
              
               :
               All
               who
               are
               cited
               to
               compeat
               there
               ,
               must
               be
               personally
               present
               ,
               because
               ,
               ordinarly
               the
               pursuer
               concluds
               ,
               that
               they
               ought
               to
               be
               personally
               punished
               .
               All
               dyets
               there
               are
               peremptor
               ,
               all
               debat
               is
               in
               writ
               ,
               no
               Advocat
               being
               allowed
               to
               plead
               ,
               because
               the
               Council
               only
               Iudges
               in
               matters
               of
               fact
               .
            
             
               The
               Lords
               of
               Council
               and
               
               Session
               ,
               are
               Iudges
               in
               all
               matters
               of
               
                 civil
                 Rights
              
               ;
               of
               old
               ,
               they
               were
               chosen
               by
               the
               Parliament
               ,
               and
               were
               a
               committy
               of
               Parliament
               :
               But
               the
               present
               modell
               was
               fixt
               and
               established
               by
               
                 King
                 Iames
                 the
                 fifth
              
               ,
               after
               the
               modell
               of
               the
               
                 Parliament
                 of
                 Paris
              
               *
               .
            
             
               Of
               old
               it
               consisted
               of
               seven
               Ecclesiasticks
               ,
               and
               seven
               Laicks
               and
               the
               President
               was
               a
               
                 Church
                 ▪
                 man
              
               ;
               But
               now
               all
               the
               fifteen
               are
               Laicks
               .
               And
               there
               sits
               with
               them
               four
               
                 Noble
                 —
                 men
              
               ,
               who
               are
               called
               
                 extraordinarie
                 Lords
              
               and
               were
               allowed
               to
               sit
               to
               learn
               ,
               rather
               then
               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
               *
               Age
               ,
               and
               excep●
               
               they
               have
               a
               1000
               lib.
               or
               20
               Chalders
               of
               victual
               in
               yearlie
               rent
               .
               Nine
               are
               a
               Quorum
               .
            
             
               Crimes
               of
               old
               ,
               were
               judged
               by
               the
               
                 Iustice
                 General
                 ,
                 Iustice
                 Clerk
              
               ,
               and
               two
               
                 Iustice
                 Deputes
              
               ;
               but
               now
               five
               
                 Lords
                 of
                 Session
              
               ,
               are
               joyned
               to
               the
               
                 Iustice
                 General
              
               ,
               and
               
                 Iustice
                 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
              
               *
               .
            
             
               The
               Exchequer
               ,
               is
               the
               
                 Kings
                 Chamberlain
                 ,
                 Court
              
               *
               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
               Majestie
               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
                 Advocat
              
               causes
               from
               him
               *
               ;
               tho
               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.
               IV.
               Of
               Inferior
               Iurisdictions
               ,
               and
               Courts
               .
            
             
               THe
               Sherriff
               ,
               is
               the
               
                 Kings
                 chief
              
               and
               
                 Ancient
                 Officer
              
               ,
               for
               preserving
               the
               Peace
               ,
               and
               putting
               the
               Laws
               in
               execution
               *
               ,
               he
               has
               both
               a
               Civil
               and
               
                 Criminal
                 Iurisdiction
              
               ,
               and
               his
               Commission
               is
               under
               the
               
                 Great
                 Seal
              
               ;
               he
               is
               obliged
               to
               raise
               the
               
                 huy
                 and
                 cry
              
               after
               all
               Rebels
               ,
               and
               to
               apprehend
               them
               when
               required
               :
               To
               assist
               such
               as
               are
               violently
               dispos●est
               :
               To
               apprehend
               such
               as
               
                 say
                 Mass
              
               ,
               or
               trouble
               the
               Peace
               ,
               and
               take
               caution
               for
               their
               appearance
               *
               :
               He
               nor
               no
               
                 Inferior
                 Iudge
              
               ,
               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
               Iudge
               in
               all
               crimes
               ,
               Except
               the
               four
               Pleas
               of
               the
               Crown
               ,
               to
               wit
               ,
               
                 Murder
                 ,
                 Fir●
                 rasing
                 ,
                 Robery
                 ,
              
               and
               
                 ravishing
                 of
                 Women
              
               *
               ;
               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
               syne
               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
               Iurisdiction
               ,
               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
               Iurisdiction
               ,
               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
               †
               .
            
             
               The
               
                 Lord
                 of
                 Regality
              
               ,
               has
               also
               by
               his
               erection
               ,
               power
               to
               repledge
               from
               the
               Sherriff
               ,
               and
               even
               from
               the
               Iustices
               in
               all
               *
               cases
               except
               treason
               ,
               and
               the
               pleas
               of
               the
               Crown
               ,
               that
               is
               to
               say
               ,
               to
               appear
               ,
               and
               crave
               ;
               that
               any
               dwelling
               within
               his
               Iurisdiction
               ,
               may
               be
               sent
               back
               to
               be
               
               iudged
               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
               
                 Cul
                 ▪
                 reach
              
               *
               .
            
             
               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
               Baillie
               in
               them
               ,
               and
               these
               Iurisdictions
               are
               called
               Bailliaries
               ,
               the
               Baillies
               of
               the
               Kings
               proper
               lands
               having
               the
               same
               power
               with
               the
               Sherriff
               .
               And
               all
               these
               ,
               viz.
               the
               Sherriff
               ,
               the
               Stewart
               ,
               and
               the
               
                 Lord
                 of
                 Regalitie
              
               ,
               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
               Iurisdiction
               ,
               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
               .
            
             
               
                 Iustices
                 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
                 ryots
              
               ,
               servants
               fies
               ,
               and
               many
               such
               like
               ,
               relateing
               to
               good
               neighbour-hood
               ,
               exprest
               in
               the
               instructions
               ,
               given
               them
               by
               the
               Parliament
               *
               and
               are
               named
               by
               the
               Council
               ;
               allbeit
               ,
               be
               the
               foresaid
               Statute
               ,
               the
               nomination
               is
               to
               be
               
               by
               His
               Majestie
               ,
               and
               His
               
                 Royal
                 Successors
              
               ,
               which
               the
               King
               has
               now
               remitted
               to
               the
               
                 Privy
                 Council
              
               .
            
             
               The
               
                 Iustices
                 of
                 peace
              
               do
               name
               Constables
               ,
               within
               their
               own
               bounds
               ,
               from
               six
               months
               to
               six
               months
               ;
               Their
               
                 Office
                 is
              
               ,
               to
               wait
               upon
               the
               Iustices
               ,
               and
               receive
               injunctions
               from
               them
               ,
               delate
               such
               Ryots
               and
               Crimes
               to
               the
               Iustices
               ,
               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
               Tennents
               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
               ;
               tho
               his
               land
               be
               not
               erected
               in
               a
               barronie
               ;
               But
               if
               his
               land
               be
               erected
               in
               a
               barronie
               ,
               (
               which
               the
               King
               can
               only
               do
               :
               )
               he
               may
               (
               like
               the
               Sherriff
               )
               unlaw
               for
               blood-wits
               ,
               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
               Ecclesiastick
               Persons
               .
            
             
               SInce
               the
               Reformation
               ,
               the
               King
               is
               come
               by
               
                 Our
                 Law
              
               in
               place
               of
               the
               Pope
               *
               ,
               and
               all
               rights
               to
               Kirk-lands
               ,
               must
               be
               confirmed
               by
               him
               ,
               else
               they
               are
               null
               ;
               *
               .
               His
               Majestie
               only
               can
               call
               
               convocations
               of
               the
               Clergie
               ;
               (
               for
               so
               we
               call
               our
               
                 National
                 assemblies
              
               *
               )
               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
               
                 Conge
                 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
              
               *
               .
            
             
               The
               Archbishops
               and
               Bishops
               ,
               have
               the
               sole
               power
               ,
               of
               calling
               Synods
               within
               their
               own
               Diocies
               *
               ,
               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
               *
               ,
               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
               lifetime
               :
               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
               *
               .
            
             
               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
               
                 Poperie
                 ,
                 Collegiat
                 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
               Colledges
               ,
               notwithstanding
               of
               the
               foundations
               *
               .
            
             
               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
               ,
               dos
               ,
               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
              
               ;
               *
               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
               *
               ,
               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
               dayes
               ;
               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
               Keyes
               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
               patrons
               presentation
               is
               sufficient
               in
               prebendaries
               ,
               and
               other
               benefices
               ,
               which
               has
               not
               
                 curam
                 animarum
              
               ;
               And
               that
               without
               the
               necessitie
               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.
               merks
               or
               above
               1000.
               merks
               or
               10.
               
                 chalders
                 of
                 victual
              
               :
               (
               Except
               there
               be
               just
               reason
               to
               give
               less
               )
               *
               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
               peece
               of
               land
               for
               Corn
               and
               Fother
               to
               his
               Beasts
               :
               If
               there
               was
               a
               manse
               of
               old
               belonging
               to
               the
               parson
               ,
               or
               viccar
               ,
               the
               minister
               has
               right
               to
               it
               ;
               If
               there
               was
               none
               ,
               the
               parochiners
               must
               build
               one
               ,
               not
               exceeding
               1000
               lib.
               and
               not
               beneath
               500
               merks
               *
               ,
               at
               the
               sight
               of
               the
               Bishop
               of
               the
               Diocie
               ,
               or
               such
               Ministers
               as
               he
               shal
               appoint
               ,
               with
               two
               or
               three
               of
               the
               most
               discreet
               men
               in
               the
               paroch
               :
               as
               also
               the
               Heritors
               are
               lyable
               to
               repair
               the
               manse
               ;
               But
               the
               present
               incumbent
               is
               obliged
               to
               leave
               it
               ,
               in
               as
               good
               condition
               as
               they
               gave
               it
               to
               him
               *
               .
            
             
               The
               
                 Ministers
                 Glieb
              
               ,
               is
               to
               comprehend
               4
               
                 Acres
                 of
                 Arrable
                 land
              
               ,
               or
               
                 sixteen
                 sowms-grass
              
               ,
               where
               there
               is
               no
               
                 arrable
                 land
              
               ,
               which
               is
               to
               be
               designed
               out
               of
               the
               lands
               ,
               which
               belonged
               of
               
               old
               to
               
                 Abbots
                 ,
                 priors
                 ,
                 Bishops
                 ,
                 Friers
                 ,
              
               or
               any
               other
               
                 Kirk
                 ▪
                 lands
              
               within
               the
               parish
               *
               with
               freedom
               of
               
                 foggage
                 ,
                 pasturage
              
               for
               a
               horse
               ,
               and
               two
               
                 cows
                 ,
                 fewel
                 feal
              
               ,
               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
               parishoners
               ,
               and
               the
               designation
               is
               to
               be
               signed
               be
               the
               designers
               *
               .
            
             
               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
               rent
               of
               the
               benef●ce
               ,
               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
               incumbencie
               ,
               and
               the
               
               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
              
               ,
               alwayes
               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
               modifie
               ,
               and
               augment
               
                 Ministers
                 Stipends
              
               ,
               and
               to
               unite
               and
               disjoyn
               
                 churchs
                 ,
                 &c.
              
               whose
               decreets
               ;
               because
               they
               are
               a
               
                 commitie
                 of
                 Parliament
              
               cannot
               be
               reduced
               by
               the
               Session
               ,
               or
               any
               other
               
                 inferior
                 Iudicature
              
               .
            
             
               The
               
                 Primitive
                 Christians
              
               remitted
               the
               
                 cognition
                 of
                 all
                 cases
              
               that
               related
               to
               Religion
               ,
               as
               the
               matters
               of
               
                 divorce
                 ,
                 bastardi●
              
               ,
               the
               protection
               of
               dying
               mens
               estates
               ,
               to
               their
               Bishops
               ;
               or
               such
               as
               they
               imployed
               ,
               under
               them
               ,
               who
               were
               called
               Officialls
               ,
               and
               with
               us
               are
               called
               Commissars
               ;
               and
               are
               called
               therefore
               
                 Iudices
                 Christianitatis
              
               :
               
               And
               they
               are
               therefore
               the
               only
               
                 judges
                 in
                 divorce
              
               ;
               because
               ,
               it
               is
               the
               
                 breach
                 of
                 a
                 vow
              
               :
               And
               to
               scandale
               ,
               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
               
                 Iudges
                 to
                 divorce
                 upon
                 adultery
              
               ,
               and
               can
               only
               declare
               
                 marriages
                 null
              
               ,
               for
               impotencie
               and
               to
               
               bastardy
               ,
               when
               it
               has
               any
               connexion
               with
               adultery
               ,
               or
               marriage
               :
               And
               they
               only
               may
               reduce
               the
               
                 sentences
                 of
                 all
                 inferrior
                 Comm●ssars
              
               *
               ,
               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
               def●ned
               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
               necessarly
               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
               decencie
               ,
               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
                 germans
              
               ;
               which
               is
               suitable
               to
               the
               
                 Iudicial
                 Law
              
               ,
               of
               Moses
               *
               ,
               and
               the
               same
               degrees
               porhibited
               in
               Consanguinity
               are
               also
               forbidden
               in
               Affinity
               .
            
             
               Marriage
               ,
               is
               either
               regular
               ,
               and
               solemne
               ,
               or
               ●landestine
               ;
               the
               
               regular
               way
               of
               Marrying
               ,
               Is
               ,
               by
               having
               their
               names
               proclaim'd
               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
               *
               ;
               Cohabitation
               also
               ,
               or
               
                 dwelling
                 together
              
               ,
               is
               presum'd
               to
               be
               Marriage
               †
               ,
               if
               the
               Parties
               were
               repute
               ,
               Man
               and
               Wife
               ,
               dureing
               their
               lifetime
               ,
               and
               so
               the
               Children
               are
               not
               Bastards
               ;
               though
               they
               cannot
               prove
               that
               their
               Parents
               were
               Marryed
               ;
               unless
               it
               be
               clearly
               prov'd
               that
               they
               
                 were
                 not
                 Married
              
               .
            
             
               From
               the
               
                 coniugal
                 Society
              
               ,
               arises
               ,
               the
               communion
               of
               
                 moveable
                 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
               Moveables
               ,
               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
               qualitie
               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
               lyable
               dureing
               ●he
               Marriage
               to
               pay
               her
               
                 moveable
                 ●ebts
              
               ;
               but
               how
               soon
               the
               Mar●iage
               is
               disolv'd
               ,
               he
               is
               no
               ●urther
               lyable
               to
               pay
               her
               debts
               ;
               than
               in
               as
               far
               as
               he
               was
               a
               Gainer
               by
               her
               Estate
               .
            
             
               If
               the
               
                 Wife
                 contract
              
               any
               debt
               ,
               or
               doe
               any
               other
               deed
               ,
               after
               the
               
                 Proclamation
                 of
                 Banns
              
               ,
               the
               Husband
               will
               not
               be
               thereby
               Prejudg'd
               .
            
             
               The
               Husband
               is
               also
               oblig'd
               ●o
               
                 Aliement
                 his
                 Wife
              
               ,
               and
               if
               he
               ●efuse
               ,
               the
               
                 privy
                 Council
              
               ,
               or
               
                 Lords
                 of
                 Session
              
               ,
               will
               modific
               ●n
               Aliement
               to
               her
               out
               of
               her
               Husbands
               means
               ,
               suitable
               to
               ●is
               Qualitie
               ,
               which
               they
               will
               ●lso
               grant
               ,
               
                 ob
                 saevitiam
              
               ,
               if
               he
               ●reat
               her
               Inhumanely
               .
            
             
               The
               Husband
               is
               Tutor
               ,
               and
               ●urator
               to
               his
               Wife
               ,
               and
               there●ore
               ,
               if
               she
               had
               Tutors
               ,
               or
               
               Curators
               ,
               formerly
               ,
               their
               powe●
               is
               devolved
               over
               by
               the
               Law
               upon
               the
               Husband
               ;
               and
               whatever
               deeds
               she
               does
               withou●
               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
               her self
               when
               she
               is
               cloathed
               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
               lyable
               ,
               as
               if
               she
               shoul●
               
               oblige
               her self
               to
               Infest
               any
               Man
               in
               Lands
               properly
               belong●ng
               to
               her self
               .
            
             
               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
              
               )
               least
               otherwayes
               ,
               they
               might
               
                 ruine
                 themselves
              
               ,
               thorow
               
                 Love
                 ,
                 Fear
              
               ,
               or
               Importunity
               ;
               and
               that
               either
               expresly
               ,
               by
               Revocking
               what
               is
               done
               (
               though
               they
               obliged
               themselves
               not
               to
               Revoke
               )
               or
               Tacitly
               ,
               by
               
                 disponing
                 to
                 others
              
               ,
               what
               was
               so
               gifted
               .
            
             
               All
               Rights
               made
               by
               a
               Wife
               to
               her
               Husband
               ,
               or
               any
               third
               partie
               with
               his
               consent
               and
               to
               his
               behoof
               ,
               are
               valid
               Rights
               ;
               if
               they
               be
               Ratified
               by
               her
               before
               a
               Iudge
               ,
               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
               quarelled
               ,
               as
               
                 extorted
                 vi
                 &
                 metu
              
               ,
               or
               may
               be
               Revokes
               as
               
                 donatio
                 inter
                 Virum
                 ,
                 &
                 Uxorem
                 ,
              
               which
               the
               Ratification
               before
               a
               Iudge
               does
               absolutely
               exclude
               ,
               
                 Propter
                 Religionem
                 Sacramenti
              
               ,
               the
               Ratification
               ,
               being
               
                 extra
                 presentiam
                 mariti
              
               .
            
             
               Marriage
               is
               disolved
               either
               by
               Death
               ,
               or
               Divorce
               ,
               and
               〈◊〉
               the
               Disolution
               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
                 ,
                 Procreat
              
               of
               the
               Marriage
               ,
               who
               was
               heard
               cry
               .
            
             
               If
               the
               Marriage
               be
               disolved
               by
               Death
               ,
               after
               the
               
                 Year
                 expyres
              
               ,
               then
               the
               
                 Wife
                 surviving
              
               ,
               has
               right
               to
               a
               third
               of
               the
               
                 moveable
                 Estate
              
               ;
               if
               there
               be
               Children
               ;
               and
               to
               the
               half
               ,
               if
               there
               be
               none
               ,
               and
               this
               is
               called
               
                 jus
                 Relictae
              
               ;
               and
               tho
               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
               
                 dyed
                 infest
              
               ,
               and
               this
               is
               called
               a
               
                 Widows
                 Terce
              
               ;
               and
               to
               any
               other
               provisions
               contained
               in
               her
               Contract
               
               
                 of
                 Marriage
              
               ,
               which
               provision
               if
               it
               exceeds
               the
               Terce
               ,
               it
               excludes
               *
               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
                 courtisie
                 of
                 Scotland
              
               *
               .
            
             
               Marriage
               is
               disolved
               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
               Partie
               refuse
               to
               cohabite
               together
               ,
               and
               remains
               in
               their
               
                 malicious
                 obstinacie
                 four
                 years
              
               ,
               and
               are
               thereupon
               excommunicate
               *
               ,
               or
               for
               Adultery
               ,
               in
               both
               which
               cases
               the
               Persuer
               must
               give
               his
               Oath
               ,
               that
               
               the
               Process
               is
               not
               carryed
               on
               by
               collusion
               ,
               and
               after
               a
               Decreet
               of
               Divorce
               is
               obtained
               ,
               in
               either
               case
               the
               
                 Partie
                 innocent
              
               may
               marry
               ;
               but
               the
               Partie
               that
               is
               guilty
               cannot
               ,
               and
               besides
               looses
               all
               the
               benefite
               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
                 Iudgement
              
               ,
               which
               is
               requisite
               ,
               for
               the
               exact
               
                 manadgement
                 of
                 their
                 Affairs
              
               ;
               and
               during
               that
               time
               ,
               they
               are
               called
               Minors
               ,
               by
               a
               general
               
               
               
               
               
               Terme
               ;
               though
               properly
               ,
               such
               onely
               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
               onely
               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
               manadge
               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
              
               *
               Law
               :
               He
               takes
               a
               Brieff
               out
               of
               the
               Chanc●llary
               ,
               and
               
                 serves
                 himself
                 before
                 a
                 Iudge
              
               ,
               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
               ,
               then
               any
               person
               may
               give
               in
               a
               Signator
               to
               the
               Exchequer
               ,
               and
               he
               gets
               a
               gift
               under
               the
               
                 Privie
                 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
               onely
               is
               oblidged
               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
               alwayes
               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
               Iudge
               
               and
               at
               the
               day
               ,
               the
               Minor
               gives
               in
               a
               list
               of
               those
               he
               intends
               to
               choise
               to
               be
               his
               Curators
               ,
               and
               those
               who
               accept
               must
               Subscrive
               the
               acceptation
               ,
               and
               they
               must
               find
               
                 Caution
                 de
                 Fideli
              
               *
               ,
               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
                 Arbitrarie
              
               ,
               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
               Pupill
               ,
               a
               Curator
               with
               him
               ;
               but
               both
               
               must
               make
               inventarie
               of
               all
               the
               
                 Pupills
                 Estate
              
               before
               they
               Administrate
               ,
               with
               consent
               of
               the
               nearest
               of
               Kinne
               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
               *
               ;
               neither
               have
               Sallaries
               :
               and
               both
               are
               lyable
               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
               )
               then
               that
               Act
               is
               ,
               
                 ipso
                 jure
                 null
              
               ,
               that
               is
               to
               say
               ,
               he
               needs
               not
               Revoke
               ;
               but
               if
               he
               have
               no
               Curators
               ,
               then
               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
               Summonds
               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
               laes'd
               ;
               otherwayes
               ,
               the
               Lords
               will
               not
               repone
               him
               :
               Though
               this
               Revocation
               be
               not
               absolutely
               necessarie
               ,
               yet
               the
               executing
               of
               a
               Summonds
               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
               *
               ;
               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
               persue
               his
               Pupill
               ,
               ▪
               till
               he
               has
               compted
               for
               his
               intermissions
               ;
               for
               it
               s
               presum'd
               he
               has
               his
               
                 Pupills
                 Estate
              
               in
               his
               own
               hands
               ,
               and
               whatever
               Right
               he
               buyes
               of
               what
               belong'd
               to
               his
               Pupill
               is
               presum'd
               to
               be
               bought
               with
               his
               
                 Pupills
                 means
              
               ;
               and
               so
               the
               advantage
               must
               accress
               to
               the
               Pupill
               .
            
             
               So
               carefull
               has
               
                 Our
                 Law
              
               been
               to
               
                 protect
                 minors
              
               ,
               and
               to
               secure
               
                 Old
                 Estates
              
               ,
               that
               
                 minor
                 non
                 tenetur
                 placitare
                 super
                 haereditate
                 paterna
              
               *
               ,
               that
               is
               to
               say
               ,
               a
               
               minor
               is
               not
               obliged
               to
               answer
               any
               process
               concerning
               his
               
                 Fathers
                 Heritage
              
               ;
               but
               ,
               yet
               if
               his
               
                 Fathers
                 Right
              
               be
               quarrelled
               for
               his
               
                 Fathers
                 crimes
              
               ,
               or
               delicts
               ,
               as
               in
               the
               cases
               of
               
                 falshood
                 ,
                 forfeiture
              
               ,
               or
               Recognition
               ,
               these
               cases
               are
               excepted
               ,
               and
               he
               is
               obliged
               to
               answer
               .
               Secundo
               ,
               This
               priviledge
               extends
               not
               to
               Actions
               concerning
               marches
               ,
               or
               
                 division
                 of
                 lands
                 .
                 Tertio
              
               ,
               It
               defends
               not
               against
               the
               
                 Superiour
                 perseuing
              
               for
               his
               
                 casualities
                 .
                 Quarto
              
               ,
               Where
               the
               
                 minors
                 right
              
               is
               only
               
                 quarrell'd
                 consequentiallie
              
               ,
               the
               
                 chief
                 right
                 quarrolled
              
               belonging
               to
               a
               major
               ,
               there
               is
               no
               place
               for
               this
               
                 priviledge
                 .
                 Quinto
              
               ,
               It
               defends
               not
               in
               cases
               where
               the
               Heritage
               was
               deryv'd
               from
               Collaterals
               ,
               such
               as
               Brothers
               ,
               or
               
                 Uncles
                 .
                 Sexto
              
               ,
               It
               defends
               only
               where
               the
               Heritage
               
               descended
               even
               from
               the
               Father
               ,
               or
               Grand-Father
               ,
               if
               they
               dyed
               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
               then
               it
               is
               
                 accounted
                 Heritage
              
               ,
               tho
               it
               was
               conquest
               by
               the
               Father
               .
            
             
               The
               
                 priviledge
                 of
                 minoritie
              
               ,
               is
               in
               some
               cases
               allowed
               to
               the
               
                 minors
                 Heir
              
               :
               Which
               are
               comprised
               in
               these
               
                 following
                 rules
              
               1.
               
               If
               a
               minor
               succeds
               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
               .
            
             
               Minoritie
               ends
               both
               in
               Men
               and
               Women
               ,
               when
               they
               are
               21.
               
                 years
                 of
                 age
                 compleat
              
               ;
               but
               after
               that
               there
               is
               4.
               
                 years
                 granted
              
               ,
               wherein
               they
               may
               reduce
               what
               they
               did
               Revoke
               before
               they
               were
               21.
               
                 years
                 compleat
              
               ,
               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
                 kinne
                 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
               *
               Fuirous
               .
            
             
               If
               a
               Person
               be
               Prodigal
               ,
               or
               Spend-thrift
               ,
               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
               
                 reduc'd
                 .
                 Secundo
                 ,
                 Interdiction
              
               
               proceeds
               upon
               a
               persute
               ,
               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
               persute
               ;
               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
               
                 Iudicial
                 interdictions
              
               ;
               and
               no
               interdiction
               lasts
               longer
               than
               the
               Levitie
               and
               Prodigality
               which
               occasioned
               it
               ,
               but
               this
               requires
               also
               the
               sentence
               of
               a
               Iudge
               .
            
             
               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
              
               ,
               otherwayes
               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
               stil
               lyable
               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
               minoritie
               ,
               and
               if
               either
               Pupill
               or
               Minor
               have
               any
               
                 Legal
                 Action
              
               to
               prosecute
               ,
               and
               want
               Tutors
               or
               Curators
               ,
               the
               Lords
               will
               upon
               a
               
                 Bill
                 Authorize
                 Curators
              
               ,
               who
               are
               therefore
               called
               
                 Curators
                 ,
                 ad
                 lites
              
               .
            
             
               All
               Tutors
               and
               Curators
               can
               
               act
               and
               do
               whatever
               the
               Pupill
               might
               do
               if
               he
               were
               major
               ;
               except
               in
               
                 selling
                 of
                 land
              
               ,
               which
               they
               cannot
               sell
               without
               a
               sentence
               of
               a
               Iudge●
               ;
               finding
               the
               vendition
               necessar
               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
               lyable
               to
               do
               
                 exact
                 Dilligence
              
               ,
               and
               therefore
               ;
               if
               any
               of
               their
               
                 Pupills
                 Debitors
              
               becomes
               Bank-rupt
               ,
               or
               their
               Tennents
               break
               ,
               they
               are
               lyable
               and
               the
               Pupill
               may
               pursue
               any
               one
               of
               the
               Tutors
               for
               the
               negligence
               of
               all
               the
               rest
               ,
               but
               he
               has
               his
               relief
               against
               the
               rest
               :
            
             
               They
               are
               likewayes
               lyable
               
               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
               Debitors
               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
                 summ
              
               ,
               bearing
               Annuall-rent
               .
            
             
               After
               Tutors
               and
               Curators
               have
               once
               accepted
               they
               cannot
               Renounce
               ;
               but
               if
               they
               miscarie
               in
               their
               Administration
               ,
               they
               may
               be
               removed
               ,
               by
               an
               action
               ,
               as
               suspect
               Tutors
               .
            
             
               If
               there
               be
               moe
               Tutors
               or
               Curators
               ,
               the
               Office
               upon
               the
               death
               of
               any
               of
               them
               Accresses
               to
               the
               Survivers
               ;
               except
               they
               
               be
               
                 named
                 joyntly
              
               ;
               for
               then
               the
               first
               Nomination
               is
               disolved
               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
               slaverie
               ,
               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
               Familie
               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
               wayes
               by
               which
               a
               Right
               may
               be
               acquired
               .
            
             
               BEing
               to
               treate
               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
               propertie
               in
               them
               ,
               such
               as
               are
               things
               common
               ,
               as
               the
               Ocean
               ,
               (
               though
               our
               King
               has
               Right
               to
               our
               
                 narrow
                 Seas
              
               ,
               and
               to
               all
               the
               Shoars
               .
               )
               
               Secundo
               ,
               Things
               publick
               ,
               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
               Citie
               ,
               as
               a
               Theater
               ,
               or
               the
               
                 Mercat
                 place
              
               ,
               and
               the
               like
               :
               Quarto
               ,
               Things
               that
               are
               said
               to
               be
               no
               Mans
               ,
               but
               are
               
                 Iuris
                 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
               speciall
               
               Sanctions
               ,
               as
               the
               
                 walls
                 of
                 Cities
                 ,
                 Persons
                 of
                 Ambassadours
                 ,
              
               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
               propertie
               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
               propertie
               in
               
                 wild
                 Beasts
              
               ,
               of
               which
               we
               acquire
               a
               Right
               how
               soon
               we
               
                 apprehend
                 them
              
               ,
               or
               are
               in
               the
               
               prosecution
               of
               them
               with
               probabilitie
               to
               apprehend
               them
               ,
               as
               also
               we
               retain
               a
               right
               to
               them
               whilst
               they
               remain
               in
               
                 Our
                 possession
              
               ,
               and
               evenafter
               they
               have
               escapt
               ,
               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
               mans
               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
               wayes
               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
                 masse
                 of
                 matter
                 ,
                 then
                 the
                 Owner
                 of
                 the
                 matter
                 is
                 also
                 owner
                 of
                 the
                 species
                 ,
                 or
                 thing
                 made
              
               ;
               As
               ,
               
                 if
                 a
                 Cup
                 be
                 made
                 of
                 another
                 mans
                 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
               ,
               then
               the
               Species
               will
               undoubtedly
               belong
               to
               him
               that
               made
               it
               ,
               and
               not
               to
               the
               
               
                 owner
                 of
                 the
                 matter
              
               ,
               as
               Wine
               ,
               and
               Oyl
               ,
               made
               of
               anothers
               Grapes
               ,
               and
               Olives
               ,
               which
               belongs
               to
               the
               maker
               ,
               seing
               wine
               ,
               cannot
               be
               reduced
               to
               the
               
                 Grapes
                 of
                 which
                 it
                 was
                 made
                 .
              
            
             
               Propertie
               is
               likewise
               acquired
               when
               two
               or
               moe
               Persons
               mixe
               together
               in
               one
               ,
               what
               formerly
               belonged
               to
               them
               severally
               ,
               and
               if
               the
               
                 matterials
                 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
               matterials
               cannot
               be
               separated
               ,
               the
               thing
               is
               yet
               common
               ;
               as
               when
               the
               Graine
               or
               Corns
               of
               two
               persons
               are
               mixed
               together
               by
               chance
               ,
               here
               there
               must
               necessarly
               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
               ,
               seing
               they
               can
               be
               
                 distinctly
                 known
              
               and
               separated
               ,
               and
               these
               two
               ways
               of
               acquisition
               are
               by
               accerssion
               .
            
             
               The
               last
               ,
               and
               most
               ordinarie
               way
               of
               acquiring
               of
               property
               ,
               is
               by
               tradition
               ,
               which
               is
               defyned
               
                 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
               it self
               ,
               as
               of
               a
               horse
               ,
               a
               
                 cup
                 ,
                 &c.
              
               or
               by
               a
               
                 Symbolick
                 delivery
              
               .
               As
               ,
               is
               the
               
                 delivery
                 of
                 a
                 little
                 Earth
                 and
                 Stone
                 in
                 place
                 of
                 the
                 Land
                 it self
              
               ;
               for
               ,
               where
               the
               thing
               cannot
               be
               
                 truely
                 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
               preferr'd
               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
                 Iewels
              
               lying
               on
               the
               Shoare
               ;
               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
               
                 loosing
                 Rights
              
               ,
               it
               being
               upon
               diverse
               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
               it self
               ,
               for
               though
               thereafter
               our
               Right
               was
               found
               not
               to
               be
               good
               ;
               yet
               the
               Law
               ,
               judged
               it
               
                 unreasonable
                 to
                 make
                 us
                 restore
                 what
                 we
                 lookt
                 upon
                 as
                 our
                 own
                 ;
                 when
                 we
                 spent
                 it
                 ,
              
               and
               therefore
               ,
               whenever
               this
               
                 bona
                 fides
              
               ceaseth
               ,
               which
               may
               be
               several
               wayes
               ,
               especially
               by
               intenting
               an
               action
               at
               the
               
                 true
                 owners
                 instance
              
               ,
               we
               become
               answerable
               for
               these
               Fruits
               ;
               though
               thereafter
               they
               be
               
                 percepti
                 &
                 consumpti
              
               ,
               by
               us
               .
            
          
           
             
               Tit.
               II.
               Of
               the
               difference
               ,
               betwixt
               Heritable
               ,
               and
               Moveable
               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
               
                 Moveable
                 Rights
              
               .
            
             
               
                 Heritable
                 Rights
              
               in
               a
               strict
               sense
               ,
               are
               only
               Lands
               ,
               and
               all
               
                 summs
                 of
                 money
              
               ,
               and
               other
               things
               which
               can
               be
               moved
               from
               one
               place
               to
               another
               are
               moveable
               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
               moveable
               ,
               and
               so
               
                 sums
                 of
                 money
              
               ,
               albeit
               of
               their
               own
               nature
               they
               are
               moveable
               ;
               yet
               if
               they
               were
               lent
               for
               Annualrent
               they
               were
               of
               old
               
                 repute
                 heritable
              
               .
            
             
               For
               understanding
               whereof
               it
               is
               necessar
               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
               Iews
               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
               intirelie
               to
               the
               Heir
               ;
               but
               that
               Parliament
               finding
               that
               the
               rest
               of
               the
               Children
               ,
               beside
               the
               Heir
               had
               no
               provision
               by
               
                 Our
                 Law
              
               ,
               except
               an
               
                 equall
                 share
              
               in
               the
               moveables
               ,
               they
               therefore
               ordained
               that
               all
               
                 Bands
                 for
                 summs
                 of
                 money
              
               should
               be
               moveable
               ,
               and
               so
               belong
               to
               the
               Executors
               ;
               except
               either
               the
               Executors
               ,
               
               were
               secluded
               ,
               or
               the
               debitor
               were
               expresly
               obliged
               to
               infest
               the
               Creditor
               ,
               which
               is
               likewise
               renewed
               since
               the
               
                 Kings
                 Resturation
              
               *
               :
               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
               claime
               any
               right
               to
               it
               ,
               as
               falling
               under
               the
               
                 Rebells
                 single
                 Escheate
              
               ,
               (
               whereby
               when
               he
               becomes
               Rebel
               all
               his
               Moveables
               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
               Relicts
               will
               be
               still
               sufficiently
               
               secured
               by
               their
               contracts
               ;
               but
               whether
               the
               
                 sum
                 be
                 Heritable
              
               ,
               or
               moveable
               ,
               all
               the
               bygone
               Annualrents
               ,
               and
               generally
               all
               bygones
               are
               moveable
               ,
               as
               to
               all
               intents
               and
               purposes
               ,
               and
               so
               fall
               to
               Executors
               ,
               and
               to
               the
               Fisk
               ,
               and
               to
               the
               Relict
               ;
               because
               bygone
               rests
               are
               lookt
               on
               as
               money
               lying
               by
               the
               debitor
               ,
               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
               Moveable
               ;
               (
               the
               Law
               thinking
               that
               every
               man
               is
               
                 best
                 Iudge
              
               how
               his
               Estate
               shal
               be
               bestowed
               ;
               )
               that
               if
               a
               man
               destinate
               a
               sum
               to
               be
               imployed
               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
               
                 moveable
                 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
               moveable
               
                 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
               moveable
               of
               their
               own
               nature
               ,
               and
               yet
               they
               are
               heritably
               secured
               ;
               and
               even
               Executors
               may
               recover
               them
               by
               a
               real
               Action
               of
               
                 poynding
                 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
               moveable
               ,
               though
               it
               continue
               secured
               by
               the
               Infeftment
               ;
               as
               also
               ,
               sumes
               
                 ab
                 initio
                 Heritable
              
               ,
               may
               be
               secured
               by
               an
               
                 Accessory
                 moveable
                 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
               moveable
               ,
               for
               the
               Law
               concludes
               in
               that
               case
               ,
               that
               the
               Creditor
               designs
               rather
               to
               have
               his
               money
               ,
               than
               lying
               in
               the
               
                 Debitors
                 hands
              
               
               upon
               the
               former
               security
               ;
               and
               if
               it
               were
               lying
               in
               money
               beside
               him
               it
               would
               be
               moveable
               :
               and
               a
               requisition
               to
               one
               of
               the
               Cautioners
               will
               make
               it
               moveable
               ,
               as
               to
               the
               Principal
               and
               all
               the
               other
               Cautioners
               ;
               But
               a
               charge
               on
               a
               band
               wherein
               Executors
               are
               secluded
               ,
               will
               not
               make
               the
               sum
               moveable
               ,
               for
               the
               design
               of
               the
               Creditor
               is
               presumed
               to
               continue
               in
               favours
               of
               the
               Heir
               ,
               till
               the
               sum
               be
               payed
               ,
               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
               moveable
               ,
               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
               presum'd
               that
               he
               again
               altered
               his
               Inclination
               and
               resolved
               to
               have
               it
               Heritable
               ,
               &
               to
               continue
               due
               by
               vertue
               of
               the
               
                 first
                 Security
              
            
             
               Though
               a
               Band
               be
               heritable
               ,
               as
               bearing
               annualrent
               ,
               yet
               before
               the
               
                 terme
                 of
                 payment
              
               it
               is
               moveable
               ,
               as
               to
               all
               persons
               .
            
             
               From
               all
               which
               it
               is
               clear
               ,
               that
               
                 some
                 sums
              
               are
               moveable
               as
               to
               the
               Executor
               ,
               but
               not
               as
               to
               the
               Fisk
               or
               Relict
               ,
               and
               some
               may
               be
               moveable
               ,
               as
               to
               the
               Debitor
               and
               his
               Executors
               ,
               and
               yet
               may
               be
               Heritable
               as
               to
               the
               Creditor
               and
               those
               representing
               him
               ,
               as
               for
               instance
               ,
               an
               obligation
               ,
               to
               
                 imploy
                 a
                 sum
              
               due
               by
               a
               
                 moveable
                 band
              
               ,
               upon
               Land
               or
               annualrent
               for
               the
               Heirs
               of
               a
               Marriage
               ,
               that
               sum
               as
               to
               the
               Creditor
               would
               be
               Heretable
               ,
               yet
               
               
                 quo
                 ad
              
               the
               Debitor
               it
               would
               remain
               moveable
               .
            
          
           
             
               Title
               III.
               Of
               the
               Constitution
               of
               Heritable
               Rights
               ,
               by
               Charters
               and
               Seasins
               .
            
             
               HAving
               treated
               in
               the
               former
               Chapter
               of
               the
               
                 difference
                 betwixt
                 Heritable
                 and
                 Moveable
                 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
               Superiour
               ,
               and
               he
               to
               whom
               it
               was
               granted
               is
               called
               the
               Vassal
               ;
               the
               
                 Superiours
                 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
                 Superiour
              
               to
               this
               sub-Vassal
               ,
               and
               the
               
                 Vassals
                 Superiour
              
               ,
               becomes
               the
               Sub-vassals
               mediate
               Superior
               ,
               and
               is
               so
               called
               because
               there
               is
               another
               
                 Superiour
                 interjected
              
               betwixt
               him
               and
               the
               sub-Vassal
               .
            
             
               The
               Superiour
               dispons
               ordinarly
               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
               Superiour
               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
               Superiours
               hands
               for
               
                 new
                 Infeftment
              
               ,
               either
               in
               favours
               of
               the
               Vassal
               himself
               ,
               or
               of
               some
               
                 third
                 partie
              
               ,
               or
               by
               confirmation
               ,
               when
               the
               Superiours
               confirms
               the
               Right
               formerly
               granted
               ,
               and
               if
               it
               is
               to
               be
               holden
               from
               the
               Disponer
               of
               the
               Superiour
               that
               is
               called
               
                 a
                 me
              
               ,
               and
               is
               a
               publict
               Right
               ,
               and
               is
               still
               drawn
               back
               to
               the
               date
               of
               the
               Right
               Confirmed
               ;
               But
               if
               the
               Confirmation
               be
               onely
               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
               forfaulture
               
               or
               recognition
               of
               the
               Superiour
               ,
               all
               which
               are
               voluntar
               Rights
               ;
               but
               if
               they
               be
               granted
               in
               obedience
               to
               a
               Charge
               upon
               Apprising
               or
               Adjudication
               ,
               they
               are
               necessar
               .
            
             
               If
               the
               Charter
               contains
               a
               Clause
               
                 de
                 novo
                 damus
              
               ,
               then
               it
               has
               the
               Effect
               of
               an
               
                 Original
                 Right
              
               ,
               and
               secures
               against
               all
               Casualities
               due
               to
               the
               Superiour
               ;
               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
               exprest
               the
               way
               how
               the
               Lands
               are
               to
               be
               holden
               of
               the
               Superiour
               ,
               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
               Superiour
               ,
               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
               implyed
               in
               
                 pure
                 donationes
              
               ;
               or
               
                 secundo
                 ,
                 warrandice
              
               from
               Fact
               and
               Deed
               ,
               which
               is
               ,
               that
               the
               Granter
               hath
               not
               done
               ,
               or
               shall
               not
               doe
               any
               deed
               prejudicial
               to
               the
               right
               warranded
               .
               Or
               Tertio
               ,
               Warrandicè
               is
               absolute
               ,
               and
               that
               is
               ,
               to
               warrand
               against
               all
               mortals
               :
               And
               in
               absolute
               warrandice
               ,
               this
               is
               a
               rule
               that
               an
               
                 Adaequate
                 Onerouse
                 cause
                 presums
              
               still
               absolute
               warrandice
               ;
               But
               absolute
               warrandice
               in
               Assignations
               imports
               only
               that
               the
               debt
               is
               truly
               due
               ,
               and
               not
               that
               the
               Debitor
               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
               partie
               ,
               to
               whom
               the
               warrandice
               is
               
                 granted
                 ,
                 an
                 action
              
               of
               eviction
               ,
               for
               relief
               .
            
             
               Because
               Tradition
               is
               requisite
               to
               the
               compleating
               of
               all
               Rights
               ;
               therefore
               the
               Charter
               contains
               a
               Command
               by
               the
               Superiour
               to
               his
               Bailly
               ;
               to
               give
               
                 actual
                 state
              
               and
               Seasin
               ,
               to
               the
               Vassal
               ,
               or
               to
               his
               Atturney
               by
               
                 Tradition
                 of
                 earth
                 and
                 stone
              
               ,
               and
               this
               is
               called
               the
               
                 precept
                 of
                 Seasin
              
               ,
               and
               upon
               it
               the
               Vassal
               ,
               or
               some
               other
               person
               having
               a
               Procuratory
               from
               him
               ,
               gets
               from
               the
               
                 Bailly
                 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
               Seasin
               .
               And
               if
               the
               Superiour
               gives
               Seasin
               himself
               ,
               it
               is
               called
               a
               
                 Seasin
                 ,
                 (
                 propriis
                 manibus
                 ;
                 )
              
               so
               that
               a
               Formal
               Seasin
               is
               the
               Instrument
               of
               a
               Notar
               ,
               bearing
               the
               delivery
               of
               
                 earth
                 and
                 stone
              
               ,
               or
               some
               other
               Symbols
               by
               the
               Superiour
               ,
               or
               his
               Bailie
               to
               the
               Vassal
               ,
               or
               his
               Atturney
               ,
               the
               Tenor
               whereof
               is
               known
               and
               fixt
               ,
               and
               now
               by
               a
               late
               Statute
               the
               witnesses
               must
               subscrive
               the
               Instrument
               *
               ;
               and
               thus
               the
               Vassal
               stands
               Infest
               in
               the
               Land
               by
               Charter
               and
               Seasin
               .
            
             
               This
               Seasin
               being
               but
               the
               assertion
               of
               the
               Notar
               ,
               proves
               not
               ▪
               except
               the
               warrand
               of
               it
               ,
               that
               is
               to
               say
               ,
               the
               precept
               or
               disposition
               
               whereon
               it
               proceeded
               be
               produced
               ;
               But
               a
               Seasin
               given
               by
               a
               Husband
               to
               his
               Wife
               ,
               or
               by
               a
               Superiour
               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
               
                 fourty
                 years
              
               ,
               there
               is
               no
               necessity
               to
               produce
               either
               precept
               of
               seasin
               ,
               or
               Procuratorie
               of
               Resignation
               by
               a
               special
               statute
               *
               .
            
             
               This
               Seasin
               must
               be
               registrated
               within
               60.
               dayes
               ,
               either
               in
               the
               general
               Register
               at
               Edinburgh
               or
               in
               the
               particular
               Registers
               of
               the
               
                 Shire
                 ;
                 Stewartry
              
               or
               Regality
               where
               the
               land
               lyes
               ,
               
               els
               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
               Seasin
               ;
               but
               the
               Right
               will
               still
               be
               good
               against
               the
               Granter
               and
               his
               Heirs
               .
            
             
               If
               Lands
               lye
               Discontigue
               ,
               every
               Tenement
               must
               have
               a
               special
               Seasin
               ;
               except
               they
               be
               unite
               in
               one
               Tenement
               ;
               and
               then
               one
               Seasin
               serves
               for
               all
               ;
               if
               there
               be
               a
               special
               place
               exprest
               ,
               where
               Seasin
               should
               be
               taken
               ;
               but
               if
               there
               be
               no
               place
               exprest
               ;
               then
               a
               Seasin
               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
               Seasin
               will
               serve
               for
               all
               Tenements
               ,
               of
               one
               kind
               ;
               but
               where
               they
               are
               of
               
                 several
                 kinds
              
               ;
               as
               Lands
               ,
               Milnes
               ,
               &c.
               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
               Barronie
               ,
               (
               the
               nature
               of
               which
               is
               explained
               before
               ▪
               
                 Tit.
                 Inferiour
                 Iudges
              
               ,
               )
               and
               whensoever
               this
               is
               granted
               ,
               Union
               is
               imployed
               as
               the
               lesser
               degree
               .
            
             
               Erection
               in
               a
               Barrony
               can
               only
               be
               by
               the
               King
               ,
               and
               is
               not
               ▪
               Communicable
               by
               any
               
                 Subaltern
                 rights
              
               ,
               albeit
               the
               whole
               Barrony
               be
               disponed
               ;
               tho
               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
               onely
               ;
               and
               this
               Union
               ,
               and
               all
               other
               priviledges
               ,
               and
               provisions
               ,
               can
               onely
               be
               granted
               in
               the
               Charter
               ;
               but
               not
               in
               the
               Seasin
               .
            
          
           
             
               Tit.
               IV.
               Of
               the
               Several
               Kinds
               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
               Burgage
               .
            
             
               For
               understanding
               ward-holdings
               ,
               it
               is
               fit
               to
               know
               ,
               that
               at
               first
               ,
               all
               Feus
               were
               Rights
               granted
               by
               the
               Longo-Bards
               ,
               
               and
               the
               other
               Northern
               Nations
               ,
               (
               when
               they
               conquest
               Italy
               )
               to
               their
               own
               Souldiers
               for
               service
               to
               be
               done
               in
               the
               Warrs
               ;
               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
               exprest
               ;
               and
               
                 servitium
                 debitum
                 &
                 consuetum
              
               ,
               is
               interpret
               to
               be
               ward-holding
               .
            
             
               The
               advantages
               arising
               to
               the
               Superiour
               ,
               by
               the
               
                 speciality
                 of
                 this
                 holding
              
               ,
               are
               that
               the
               Superiour
               has
               thereby
               the
               full
               meals
               ,
               and
               duties
               of
               the
               ward-Lands
               ,
               during
               the
               years
               that
               his
               Male-Vassal
               is
               Minor
               *
               ;
               for
               the
               Feu
               being
               given
               originally
               to
               the
               Vassal
               ,
               for
               
                 Military
                 service
              
               ,
               it
               returns
               to
               the
               Superiour
               ,
               during
               Minority
               ;
               because
               the
               Law
               
               presumes
               ,
               that
               the
               Minor
               is
               not
               able
               to
               serve
               his
               Superiour
               in
               the
               Warrs
               ,
               but
               in
               Female-Vassals
               ,
               this
               casualitie
               lasts
               only
               till
               14.
               
                 years
                 compleat
              
               ;
               because
               ,
               they
               may
               then
               
                 marry
                 husbands
              
               ,
               who
               may
               be
               able
               to
               serve
               the
               Superiour
               ,
               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
               Superiour
               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
               hyre
               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
              
               ,
               meerly
               for
               acknowledgement
               ,
               as
               a
               penny
               ,
               or
               a
               
                 pair
                 of
                 Gloves
                 ,
                 nomine
                 albae
                 firmae
                 ,
              
               and
               ordinarly
               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
               Superiour
               *
               ,
               as
               for
               instance
               ,
               if
               the
               
                 Blench
                 dutie
                 be
                 yearly
                 Attendance
                 at
                 such
                 a
                 place
                 ▪
                 or
                 a
                 Rose
                 yearly
                 ,
                 the
                 Superiour
                 can
                 seek
                 nothing
                 for
                 his
                 blench
                 dutie
                 ,
                 except
                 he
                 required
                 the
                 same
                 within
                 the
                 year
                 .
              
            
             
             
               Burgage-holding
               ,
               is
               that
               duty
               which
               
                 Burghs
                 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
               
                 Kings
                 Bailiffs
              
               ;
               nor
               can
               Seasin
               in
               
                 Burgage
                 Lands
              
               ,
               be
               given
               by
               any
               other
               than
               the
               Bailly
               ,
               and
               
                 Town
                 Clerk
              
               ‡
               ,
               if
               the
               Town
               have
               any
               and
               they
               must
               be
               Registrated
               in
               the
               
                 Town
                 Clerks
                 Books
              
               *
               .
            
             
               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
               Casualities
               ,
               due
               to
               the
               Superiour
               .
            
             
               THe
               Feu
               being
               thus
               Stated
               by
               the
               Superiour
               ,
               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
               Superiour
               retains
               still
               
                 dominium
                 directum
              
               in
               the
               Feu
               ,
               and
               the
               Vassal
               has
               only
               
                 dominum
                 utile
              
               ;
               and
               therefore
               the
               Superiour
               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
               Superiour
               has
               different
               advantages
               ,
               and
               Rights
               ,
               according
               to
               the
               different
               maner
               of
               holdings
               ,
               and
               there
               are
               some
               Rights
               and
               Casualities
               common
               to
               all
               holdings
               .
            
             
               Ward-holdings
               ,
               gives
               the
               
                 Superiour
                 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
               
                 casualitie
                 of
                 ward
              
               ;
               but
               the
               Superiour
               ,
               or
               his
               donatar
               ,
               are
               obliged
               to
               entertain
               the
               Heir
               ;
               if
               he
               have
               no
               other
               Feu
               ,
               or
               
                 Blench
                 ,
                 Lands
              
               ,
               and
               to
               uphold
               the
               
                 house
                 ,
                 parks
                 ,
                 &c.
              
               in
               as
               good
               condition
               as
               they
               found
               them
               ;
               and
               must
               find
               caution
               for
               that
               effect
               *
               .
            
             
             
               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
               Superiour
               ,
               the
               whole
               ward-Lands
               fall
               to
               the
               
                 Superiour
                 ,
                 for
                 ever
              
               ;
               and
               this
               we
               call
               *
               Recognition
               ,
               which
               is
               introduced
               to
               punish
               the
               ingratitude
               of
               the
               Vassal
               ,
               who
               should
               not
               have
               
                 disponed
                 the
                 Superiours
                 Lands
              
               ,
               without
               his
               own
               consent
               ;
               and
               to
               shun
               this
               ,
               the
               Vassal
               in
               ward-Lands
               gets
               the
               
                 Superiours
                 confirmation
              
               ,
               before
               he
               takes
               infeftment
               ;
               for
               if
               he
               takes
               infeftment
               before
               he
               be
               confirmed
               ,
               the
               
                 lands
                 recognosce
              
               ,
               as
               said
               is
               ;
               except
               the
               seasin
               be
               null
               in
               it self
               ;
               since
               the
               Vassal
               showes
               sufficiently
               his
               ingratitude
               by
               the
               very
               taking
               of
               the
               Infeftment
               :
               
               And
               though
               the
               Vassal
               at
               first
               did
               not
               sell
               the
               half
               without
               the
               Superiours
               consent
               ;
               yet
               ,
               if
               he
               thereafter
               sells
               as
               much
               as
               will
               extend
               to
               more
               than
               the
               half
               of
               the
               Feu
               ,
               the
               
                 first
                 huyer
              
               will
               likewise
               loose
               his
               Right
               ,
               if
               it
               was
               not
               Confirmed
               before
               he
               took
               infeftment
               .
            
             
               Not
               onely
               a
               Confirmation
               ,
               or
               Novodamus
               ,
               (
               if
               it
               express
               Recognition
               )
               but
               the
               Superiours
               accepting
               service
               ,
               or
               pursuing
               for
               the
               casualities
               ,
               are
               a
               passing
               from
               the
               Recognition
               ;
               because
               ,
               they
               infer
               the
               
                 Superiours
                 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
               expresly
               provided
               in
               the
               
               
                 Vassals
                 Charter
                 ,
                 for
                 ward-holding
              
               ,
               is
               presumed
               to
               be
               the
               only
               proper
               
                 Feudal
                 Right
              
               .
            
             
               If
               the
               Vassal
               denyeth
               the
               Superiour
               ,
               he
               losses
               his
               Feu
               ,
               and
               this
               is
               called
               ,
               disclamation
               *
               ;
               but
               any
               probable
               ground
               of
               ignorance
               will
               take
               off
               this
               Forfeiture
               .
            
             
               If
               the
               Vassal
               who
               holds
               Ward-Lands
               dyes
               ,
               having
               an
               
                 Heir
                 unmarried
              
               ,
               whether
               minor
               ,
               or
               major
               ,
               the
               Superiour
               gets
               the
               value
               of
               his
               Tocher
               ;
               though
               he
               offer
               him
               not
               a
               Woman
               to
               be
               his
               Wife
               ;
               but
               if
               the
               Superiour
               offer
               him
               his
               Equal
               ,
               for
               a
               Wise
               ,
               and
               he
               refuses
               to
               accept
               ,
               (
               tho
               he
               never
               Marry
               any
               other
               person
               ;
               )
               the
               superiour
               gets
               the
               
                 double
                 of
                 his
                 tocher
              
               ,
               and
               one
               of
               these
               casualities
               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
               
                 ordinarie
                 modification
              
               is
               about
               two
               
                 years
                 rent
              
               ,
               of
               the
               
                 Vassals
                 free
                 Estate
              
               ;
               even
               though
               the
               Heir
               was
               an
               Heretrix
               ,
               and
               though
               there
               were
               moe
               
                 Heirs
                 Portioners
              
               ,
               there
               will
               only
               one
               
                 avail
                 be
                 due
                 for
                 them
                 all
                 .
              
            
             
               Though
               this
               
                 Casualitie
                 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
               Superiour
               has
               Right
               to
               the
               
                 ward
                 Lands
                 holding
              
               of
               himself
               where
               the
               Vassal
               holds
               ward-Lands
               ,
               of
               moe
               Superiours
               ;
               Yet
               the
               casualitie
               of
               Marriage
               falls
               only
               to
               the
               
                 eldest
                 Superiour
              
               ;
               because
               there
               cannot
               be
               more
               Tochers
               than
               one
               ;
               and
               he
               is
               the
               
                 eldest
                 Superiour
              
               from
               whom
               the
               Vassal
               had
               the
               first
               Feu
               ;
               but
               the
               King
               is
               still
               presumed
               to
               be
               the
               
                 eldest
                 Superiour
              
               ;
               because
               ,
               all
               
                 Feus
                 originally
              
               flowed
               from
               him
               .
            
             
               It
               is
               thought
               that
               the
               Reason
               why
               this
               Casualitie
               is
               due
               ,
               was
               ,
               because
               it
               was
               not
               just
               ,
               that
               the
               Vassal
               should
               bring
               in
               a
               stranger
               to
               be
               
                 Mistress
                 of
                 the
                 Feu
              
               ,
               without
               the
               
                 Superiours
                 consent
              
               ;
               for
               els
               he
               might
               choice
               a
               Wife
               
               out
               of
               a
               Family
               that
               were
               an
               enemy
               to
               the
               Superiour
               ;
               but
               I
               rather
               think
               ,
               that
               both
               
                 ward
                 ,
                 and
                 Marriage
              
               ,
               proceeded
               from
               an
               
                 express
                 paction
              
               ,
               betwixt
               
                 King
                 Malcome
                 Kenmore
              
               and
               his
               Subjects
               ,
               when
               he
               first
               Feued
               out
               the
               whole
               
                 Lands
                 of
                 Scotland
              
               ,
               amongst
               them
               ;
               as
               is
               to
               be
               seen
               in
               the
               first
               of
               his
               Statutes
               *
               .
            
             
               The
               
                 special
                 dutie
              
               arising
               to
               the
               Superiour
               in
               a
               
                 Feu
                 holding
              
               ,
               is
               ,
               that
               the
               Superiour
               gets
               a
               
                 yearly
                 Feu
                 dutie
              
               payed
               to
               him
               ,
               and
               if
               no
               part
               of
               this
               
                 Feu
                 duty
              
               be
               payed
               for
               two
               years
               ,
               even
               though
               the
               whole
               was
               offered
               ;
               or
               though
               the
               Vassal
               was
               minor
               ,
               then
               the
               Vassal
               looses
               his
               
                 Feu
                 ,
                 ob
                 non
                 solutum
                 Canonem
              
               ;
               for
               the
               
                 Feu
                 duty
              
               ,
               is
               called
               Canon
               ;
               and
               if
               this
               provision
               be
               exprest
               
               in
               his
               charter
               ,
               he
               will
               not
               be
               allowed
               to
               purge
               this
               irritancy
               ,
               by
               offering
               the
               bygones
               at
               the
               Barr
               ;
               but
               though
               this
               provision
               be
               not
               exprest
               in
               the
               charter
               ,
               yet
               the
               feu
               will
               be
               annulled
               for
               not
               payment
               of
               the
               Feu-dutie
               ,
               by
               an
               express
               
                 act
                 of
                 parliament
              
               *
               ;
               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
               Tye
               than
               the
               
                 meer
                 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
               Superiour
               gives
               out
               his
               Feu
               upon
               
                 express
                 condition
              
               ,
               that
               if
               the
               Feu-dutie
               be
               not
               payed
               ,
               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
               Casualities
               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
                 Escheate
              
               .
            
             
               None-entry
               ,
               is
               a
               casuality
               whereby
               the
               Superiour
               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
               allowes
               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
               Superiour
               ,
               from
               the
               very
               time
               that
               he
               cites
               his
               Vassal
               ,
               to
               hear
               ,
               and
               see
               ,
               it
               found
               and
               declared
               ,
               that
               the
               Land
               is
               in
               None-entrie
               ;
               yet
               before
               that
               citation
               ,
               the
               Superiour
               gets
               onely
               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
                 dutie
              
               ,
               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
               exprest
               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
                 dutie
              
               ,
               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
               payed
               out
               of
               the
               lands
               ,
               as
               for
               instance
               ,
               if
               a
               man
               should
               be
               infeft
               in
               the
               sum
               of
               
                 five
                 hundred
                 merks
                 yearly
              
               ,
               
               to
               be
               payable
               out
               of
               any
               particular
               Lands
               ,
               being
               worth
               5000.
               merks
               yearly
               ,
               how
               soon
               the
               Vassal
               who
               had
               right
               to
               the
               500.
               merks
               dyed
               ,
               the
               Superiour
               would
               have
               right
               to
               the
               whole
               500
               merks
               yearly
               ,
               until
               the
               Heir
               of
               the
               Vassal
               be
               entered
               .
               
                 vide
                 infra
                 Tit.
                 Servituds
                 ,
                 §
                 annualrents
                 .
              
            
             
               There
               is
               no
               Nonentry
               due
               in
               
                 Burgage
                 Lands
              
               ;
               because
               the
               Burgh
               it self
               is
               Vassal
               ,
               and
               never
               dyes
               ,
               and
               so
               therefore
               ,
               neither
               does
               the
               Burgh
               nor
               any
               private
               Burgess
               pay
               nonentrie
               ,
               the
               duty
               payable
               by
               a
               Burgh
               ,
               being
               onely
               by
               Watching
               and
               Warding
               .
            
             
               When
               the
               Vassal
               enters
               ,
               he
               pays
               an
               acknowledgment
               to
               the
               Superiour
               ,
               which
               is
               called
               ,
               relief
               ,
               because
               it
               s
               payed
               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
               Superiour
               be
               in
               possession
               ,
               the
               time
               of
               the
               
                 Vassals
                 entrie
              
               ;
               but
               if
               the
               Superiour
               was
               not
               in
               possession
               ;
               though
               the
               Vassall
               was
               minor
               ,
               or
               if
               the
               Vassall
               be
               major
               ,
               before
               his
               Predecessor
               dye
               ,
               then
               the
               Superiour
               gets
               only
               the
               retour
               dutie
               ;
               and
               it
               
               is
               so
               far
               from
               being
               presumed
               to
               be
               remmitted
               by
               the
               Superiours
               entering
               his
               Vassal
               ;
               that
               it
               is
               still
               exacted
               ;
               though
               it
               be
               gifted
               with
               the
               other
               Casualities
               .
            
             
               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
               Partie
               will
               be
               charged
               ,
               and
               if
               he
               pay
               not
               within
               the
               dayes
               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
                 casualitie
                 ,
              
               which
               is
               called
               ,
               
                 single
                 Escheate
              
               ;
               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
               
                 Kings
                 signet
              
               ,
               expresly
               ordaining
               him
               to
               be
               
                 relaxed
                 from
                 the
                 Rebellion
              
               ;
               )
               then
               he
               is
               esteemed
               as
               
                 Civilly
                 dead
              
               ;
               and
               consequently
               not
               being
               able
               to
               serve
               the
               Superiour
               ,
               the
               Law
               
               gives
               the
               Superiour
               the
               meals
               and
               duties
               of
               his
               Feu
               ,
               during
               all
               the
               dayes
               of
               the
               Vassals
               life
               ;
               and
               this
               casuality
               is
               called
               
                 Liferent
                 Escheat
              
               ;
               so
               that
               every
               Superiour
               aswell
               as
               the
               King
               ,
               has
               right
               to
               the
               meals
               ,
               and
               duties
               of
               the
               lands
               holden
               of
               himself
               *
               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
               Superiour
               ;
               but
               if
               a
               man
               have
               right
               by
               disposition
               ,
               whereupon
               no
               infeftment
               followed
               ,
               the
               King
               only
               will
               have
               right
               to
               his
               
                 Life-rent
                 Escheate
              
               ,
               as
               he
               has
               for
               the
               same
               reason
               to
               the
               Manses
               and
               Gleebs
               of
               Ministers
               ,
               when
               they
               are
               Rebells
               ;
               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
               Superiour
               during
               the
               
                 Life-renters
                 Lifetime
              
               *
               .
            
             
               This
               
                 Life-rent
                 Escheate
              
               comprehends
               only
               Rights
               ,
               to
               which
               the
               Vassal
               himself
               had
               right
               for
               his
               Lifetime
               ;
               for
               else
               it
               will
               fall
               under
               
                 single
                 Escheate
              
               ;
               (
               
                 single
                 Escheates
              
               comprehending
               every
               thing
               that
               is
               not
               a
               
                 Life-rent
                 Escheate
              
               ;
               )
               and
               therefore
               ,
               if
               the
               Superiour
               having
               right
               to
               the
               
                 Vassals
                 Liferent
                 Escheate
              
               ,
               become
               Rebel
               himself
               ,
               the
               
                 Vassals
                 Liferent
                 Escheate
              
               will
               fall
               under
               the
               
                 Superiours
                 single
                 Escheate
              
               ,
               for
               the
               Superiour
               had
               not
               right
               to
               those
               meals
               and
               
               duties
               during
               all
               the
               dayes
               of
               his
               own
               Lifetime
               ;
               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
               definit
               number
               of
               years
               ,
               few
               or
               many
               .
            
             
               The
               Superiour
               has
               also
               right
               to
               the
               
                 Sub-Vassals
                 Liferent
                 Escheate
              
               ,
               which
               falls
               after
               the
               
                 Vassals
                 denounciation
              
               ,
               for
               by
               the
               
                 denounciation
                 of
                 the
                 immediate
                 Vassal
              
               ,
               the
               Superiour
               comes
               in
               his
               place
               ;
               and
               so
               has
               right
               to
               the
               
                 sub-Vassals
                 Liferent
              
               .
            
             
               The
               
                 Liferent
                 Escheate
                 falls
              
               by
               the
               Rebellion
               ,
               that
               is
               to
               say
               ,
               by
               the
               denounciation
               ;
               and
               the
               year
               and
               day
               ,
               is
               given
               only
               
               to
               the
               Rebell
               to
               
                 relax
                 himself
              
               ,
               so
               that
               if
               he
               relax
               not
               within
               that
               time
               ,
               his
               Liferent
               will
               
                 fall
                 from
                 the
                 denounciation
              
               .
            
             
               In
               competition
               betwixt
               the
               
                 Superiour
                 of
                 the
                 Rebell
              
               ,
               and
               the
               
                 Rebells
                 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
               Superiour
               ;
               for
               else
               after
               a
               Vassal
               were
               at
               the
               horn
               ,
               he
               might
               fraudulently
               contract
               debt
               to
               prejudge
               the
               Superiour
               .
            
             
               Secundo
               ,
               If
               the
               debt
               was
               prior
               to
               the
               denounciation
               ,
               no
               
                 voluntar
                 infeftment
              
               will
               prejudge
               the
               Superiour
               ;
               except
               the
               Rebel
               was
               obliged
               prior
               to
               the
               Rebellion
               ,
               
               to
               grant
               that
               infeftment
               ,
               and
               that
               the
               infeftment
               it self
               was
               expede
               within
               
                 year
                 and
                 day
              
               of
               the
               denounciation
               .
            
             
               Tertio
               ,
               Though
               
                 Legal
                 Diligence
              
               be
               more
               favourable
               then
               
                 voluntar
                 rights
              
               ;
               because
               there
               is
               less
               collusion
               ,
               yet
               no
               
                 legal
                 dilligence
              
               will
               be
               preferred
               to
               the
               Superiour
               ;
               except
               it
               was
               led
               for
               a
               debt
               prior
               to
               the
               denounciation
               ,
               and
               was
               compleated
               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
               compleated
               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
               Burgage
               ,
               and
               mortification
               ;
               for
               the
               Vassal
               being
               a
               Societie
               or
               Incorporation
               dyes
               not
               ,
               and
               so
               can
               have
               no
               
                 liferent
                 Escheate
              
               ;
               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
               Societie
               :
            
             
               For
               compleating
               this
               Casualitie
               
               
               
               
               
               
               
               
               
               a
               general
               Declarator
               must
               be
               raised
               at
               the
               Superiour
               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
               rebell
               ,
               it
               is
               null
               ,
               and
               is
               presumed
               to
               be
               to
               his
               behoove
               ,
               if
               he
               or
               his
               Family
               be
               suffered
               to
               stay
               in
               possession
               .
            
             
               The
               last
               Priviledge
               of
               the
               Superiour
               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
               
                 lyable
                 to
                 his
                 Superiour
              
               ,
               which
               proceeds
               ordinarly
               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
               Seasin
               ,
               as
               said
               is
               ,
               has
               right
               to
               all
               Houses
               ,
               Castles
               ,
               Towers
               ,
               (
               but
               not
               Fortalices
               ;
               )
               Woods
               ,
               and
               other
               things
               that
               are
               above
               ground
               of
               the
               Lands
               
                 expresly
                 disponed
              
               ;
               and
               to
               Coals
               ,
               Lime-stone
               ,
               and
               other
               things
               within
               ground
               ,
               and
               to
               whatever
               has
               been
               possessed
               ,
               as
               part
               and
               pertinent
               of
               the
               Land
               
                 past
                 memorie
                 of
                 Man
              
               :
               But
               there
               are
               some
               things
               which
               passe
               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
               Majestie
               ,
               or
               any
               other
               Superiour
               ;
               except
               they
               were
               
                 specially
                 mentioned
              
               ,
               such
               as
               are
               all
               Iurisdictions
               ,
               Forrests
               ,
               Salmond-fishings
               ,
               Treasures
               hid
               within
               the
               ground
               ,
               and
               Gold
               ,
               Silver
               ,
               and
               Fine-lead
               ;
               for
               other
               Mines
               ,
               such
               as
               Iron
               ,
               Copper
               ,
               &c.
               belong
               to
               the
               Vassal
               .
            
             
               If
               Lands
               be
               erected
               in
               a
               Barrony
               by
               the
               King
               ,
               then
               though
               the
               lands
               lye
               discontiguously
               ,
               one
               seasin
               will
               serve
               for
               them
               all
               ,
               because
               ,
               Barrony
               implyes
               an
               union
               .
            
             
               This
               erecting
               them
               in
               a
               Barrony
               ,
               will
               likewise
               carry
               a
               right
               to
               Iurisdictions
               ,
               and
               
                 Courts
                 ,
                 Fortalices
                 ,
                 Forrests
              
               ,
               hunting
               of
               Deer
               ,
               and
               Ports
               ,
               with
               
               their
               small
               Customes
               ,
               granted
               by
               the
               King
               ,
               for
               upholding
               these
               Ports
               ,
               Milnes
               ,
               Salmond-fishings
               ,
               &c.
               because
               ;
               
                 Barronia
                 est
                 nomen
                 universitatis
              
               ,
               and
               possession
               of
               any
               part
               of
               a
               Barrony
               is
               repute
               possession
               of
               the
               whole
               ;
               But
               Mynes
               of
               Gold
               ,
               and
               Silver
               ,
               *
               Treasures
               ,
               and
               goods
               confiscate
               ,
               are
               not
               carried
               with
               the
               Barrony
               .
            
             
               The
               Heritor
               has
               also
               power
               to
               set
               Tacks
               ,
               remove
               ,
               and
               in-put
               Tennents
               ,
               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
               hyre
               ,
               and
               in
               
                 Our
                 Law
              
               it
               requires
               necessarly
               ,
               that
               the
               terms
               of
               the
               Entry
               ,
               and
               the
               Ish
               ,
               must
               be
               exprest
               ,
               that
               is
               to
               say
               ,
               when
               it
               should
               begine
               and
               end
               ,
               and
               it
               must
               bear
               a
               
               particular
               dutie
               ,
               else
               it
               is
               null
               ;
               and
               if
               it
               be
               a
               
                 valid
                 Tack
              
               ,
               that
               is
               to
               say
               ,
               if
               Write
               be
               adhibit
               ,
               (
               
                 verbal
                 Tacks
              
               being
               onely
               valid
               for
               one
               year
               )
               to
               the
               thing
               set
               ,
               the
               
                 Contracters
                 names
                 ,
                 Tack-duty
                 ,
                 Ish
                 ,
              
               and
               Entry
               ,
               clearly
               therein
               exprest
               ,
               and
               cloathed
               with
               possession
               ,
               it
               will
               defend
               the
               poor
               Tacksman
               ,
               against
               any
               Buyer
               *
               ;
               and
               even
               against
               
               the
               King
               and
               his
               Donators
               ,
               when
               they
               succeed
               by
               forfeiture
               ,
               which
               was
               
                 introduced
                 in
                 favours
                 of
                 poor
                 Tennents
                 ,
              
               for
               encouraging
               them
               to
               improve
               the
               land
               ;
               but
               it
               will
               not
               defend
               against
               a
               
                 Superiour
                 of
                 ward
                 lands
                 ,
                 for
                 the
                 ward
                 ,
                 &c.
              
               though
               by
               
                 Act
                 of
                 Parliament
              
               ,
               the
               Superiour
               be
               obliged
               ,
               to
               continue
               them
               in
               their
               possession
               till
               the
               next
               
                 term
                 of
                 Whitsonday
              
               *
               .
            
             
               Albeit
               Tacks
               have
               not
               all
               
               the
               solemnities
               foresaid
               ;
               yet
               they
               are
               valid
               against
               the
               Granter
               and
               his
               Heirs
               .
            
             
               Tennents
               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
               expyred
               ,
               he
               will
               be
               obliged
               to
               pay
               no
               more
               than
               he
               payed
               formerly
               during
               the
               Tack
               ;
               and
               this
               is
               called
               in
               
                 Our
                 Law
              
               ,
               the
               benefite
               of
               a
               
                 tacite
                 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
               cled
               with
               possession
               .
            
             
               Rentals
               are
               also
               a
               kind
               of
               Tacks
               ;
               but
               more
               favourable
               and
               easie
               ;
               because
               the
               Rentaller
               and
               his
               Predecessors
               have
               been
               
                 Ancient
                 Possessors
              
               ,
               and
               
                 kindly
                 Tennents
              
               ,
               and
               he
               payes
               a
               Grassume
               ,
               or
               acknowledgement
               at
               his
               entrie
               ,
               and
               yet
               they
               last
               no
               longer
               than
               
                 for
                 a
                 year
              
               ;
               if
               there
               be
               no
               time
               exprest
               ;
               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
               Ish
               ;
               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
               looses
               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
               
                 Summarly
                 remove
                 his
                 Tennent
              
               ,
               or
               Possessor
               except
               from
               
                 Liferented
                 Lands
              
               ,
               and
               Houses
               ,
               or
               Towers
               ,
               and
               Fortalices
               ,
               and
               
                 vitious
                 Possessors
              
               whom
               he
               can
               remove
               by
               a
               summonds
               on
               six
               days
               ;
               but
               in
               all
               other
               cases
               he
               must
               warn
               him
               ,
               40
               dayes
               ,
               before
               the
               
                 term
                 of
                 Whitsonday
              
               ;
               tho
               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
               then
               refuses
               ,
               he
               must
               be
               persued
               to
               remove
               
                 upon
                 six
                 dayes
              
               ,
               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
               Countrey
               ;
               nor
               will
               the
               Tennent
               be
               allowed
               to
               defend
               against
               this
               removing
               ;
               till
               he
               
                 find
                 caution
              
               to
               pay
               the
               
                 violent
                 profits
              
               *
               .
            
             
               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
                 dutie
              
               ,
               that
               is
               to
               say
               ,
               they
               are
               
                 impignorat
                 by
                 the
                 Law
              
               ,
               for
               that
               
                 years
                 dutie
              
               ,
               and
               he
               will
               be
               preferred
               either
               to
               a
               Creditor
               ,
               who
               has
               done
               diligence
               ,
               or
               to
               a
               stranger
               who
               has
               bought
               them
               ;
               though
               in
               a
               
                 publick
                 mercat
              
               :
               And
               a
               Lands-Lord
               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
               payed
               of
               his
               
                 years
                 rent
              
               .
            
          
           
             
             
               Title
               VII
               .
               Of
               Transmission
               of
               Rights
               ,
               by
               Confirmation
               ,
               and
               of
               the
               difference
               betwixt
               Base
               ,
               and
               Publick
               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
               necessar
               by
               apprysing
               ,
               and
               adjudication
               ,
               and
               Consiscation
               ,
               when
               they
               are
               
                 forefaulted
                 for
                 crimes
              
               ,
               &c.
               
            
             
             
               If
               the
               Vassal
               sells
               the
               Land
               ,
               the
               Superiour
               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
                 rent
                 due
                 to
                 the
                 Superiour
                 ,
              
               as
               an
               
                 acknowledgement
                 for
                 changing
                 his
                 Vassal
              
               .
            
             
               Lands
               are
               disponed
               ,
               either
               to
               be
               
                 holden
                 of
                 the
                 disponers
                 Superiour
              
               ,
               and
               that
               is
               called
               a
               
                 publick
                 Infeftment
              
               ;
               because
               ,
               it
               is
               presumed
               it
               will
               be
               publickly
               known
               ,
               being
               
                 holden
                 of
                 the
                 Superiour
              
               ;
               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
               untill
               it
               be
               confirmed
               *
               by
               the
               Superiour
               ,
               which
               is
               done
               by
               a
               
                 Charter
                 of
                 Confirmation
              
               ,
               wherein
               
               the
               
                 Superiour
                 narrates
                 the
                 Vassals
                 Charter
              
               ,
               and
               subjoyns
               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
               expences
               to
               get
               a
               Confirmation
               from
               the
               Superiour
               ,
               and
               this
               is
               called
               ,
               an
               
                 infeftment
                 ,
                 de
                 me
              
               ;
               because
               ,
               the
               Disponer
               gives
               them
               
                 tenendas
                 de
                 me
                 ,
                 &
                 successoribus
                 meis
                 .
              
            
             
               These
               
                 base
                 infeftments
              
               being
               
               cloathed
               with
               possession
               ,
               are
               as
               perfite
               ,
               and
               valid
               ,
               as
               a
               
                 publick
                 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
               Superiour
               ;
               and
               therefore
               ,
               as
               in
               a
               Competition
               betwixt
               two
               infeftments
               of
               the
               same
               Land
               ,
               to
               be
               holden
               of
               the
               Superiour
               ,
               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
               cloathed
               with
               possession
               before
               the
               
                 publick
                 infeftment
              
               be
               confirmed
               ,
               the
               
                 base
                 infeftment
              
               will
               be
               preferred
               ;
               though
               it
               was
               granted
               after
               the
               
                 publick
                 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
               cloathing
               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
               debitor
               to
               the
               Creditor
               who
               has
               
                 infeftment
                 of
                 annual-rent
              
               .
            
             
               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
               
                 Husbands
                 possession
              
               is
               accounted
               the
               
                 Wifes
                 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
               cloathed
               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
               Entrie
               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
               ruine
               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
               cloathed
               with
               possession
               ;
               and
               
                 therefore
                 before
                 the
                 terme
              
               ,
               at
               which
               he
               who
               got
               the
               
                 base
                 infeftment
              
               could
               enter
               to
               the
               possession
               ,
               there
               could
               be
               no
               Simulation
               ,
               nor
               fraude
               ,
               in
               no
               partie
               ;
               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
               cloathed
               with
               possession
               ,
               by
               the
               reservation
               of
               the
               
                 Fathers
                 liferent
              
               ,
               though
               the
               reservation
               of
               the
               
                 Fathers
                 Liferent
              
               would
               cloath
               a
               
                 base
                 infeftment
              
               granted
               by
               him
               to
               a
               
                 lawful
                 Creditor
              
               ;
               and
               the
               
                 Husbands
                 possession
              
               is
               accounted
               the
               
                 Wifes
                 possession
              
               ,
               in
               so
               farr
               as
               concerns
               her
               
                 principal
                 Ioynture
              
               ;
               but
               not
               in
               so
               far
               as
               concerns
               her
               
                 additional
                 Ioynture
              
               ,
               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
               Superiour
               ;
               but
               that
               Confirmation
               does
               not
               make
               it
               a
               
                 publick
                 infeftment
              
               ;
               for
               no
               infeftment
               can
               be
               called
               a
               
                 publick
                 infeftment
              
               ;
               but
               that
               which
               is
               to
               be
               holden
               of
               the
               Superiour
               ;
               but
               the
               use
               of
               that
               Confirmation
               is
               ,
               that
               after
               the
               Superiour
               has
               confirmed
               voluntarly
               the
               
                 sub-Vassals
                 Right
              
               ,
               he
               thereby
               acknowledges
               his
               Right
               ;
               and
               consequently
               ,
               can
               seek
               no
               Casuality
               ,
               which
               aryses
               upon
               want
               of
               the
               
                 Superiours
                 consent
              
               ,
               such
               as
               Forfeiture
               ,
               or
               Recognition
               ;
               But
               because
               the
               Disponer
               is
               still
               Vassal
               ,
               therefore
               his
               Superiour
               will
               still
               have
               right
               to
               the
               
                 Rents
                 of
                 the
                 Lands
              
               ,
               by
               his
               
                 life-rent
                 Escheate
              
               ,
               and
               to
               Wards
               ,
               and
               None-entries
               by
               his
               death
               ;
               but
               
               if
               the
               Superiour
               enter
               the
               sub-Vassal
               onely
               upon
               a
               Charge
               ,
               (
               this
               being
               no
               
                 voluntar
                 act
              
               of
               his
               ,
               )
               that
               does
               not
               cut
               him
               off
               from
               those
               casualities
               .
            
             
               Sometimes
               likewise
               ,
               the
               Seller
               resigns
               the
               Lands
               in
               
                 favours
                 of
              
               the
               Superiour
               ,
               if
               the
               lands
               be
               sold
               to
               the
               
                 Superiour
                 himself
              
               ,
               which
               is
               called
               
                 Resignatio
                 ad
                 Remanentiam
              
               ;
               because
               the
               Lands
               are
               resigned
               to
               remain
               with
               the
               Superiour
               ,
               and
               in
               that
               case
               ,
               the
               property
               is
               said
               to
               be
               Consolidate
               with
               the
               Superiority
               ,
               that
               is
               to
               say
               ,
               the
               
                 Superiour
                 returns
                 to
                 have
                 all
                 the
                 right
                 both
                 of
                 Property
                 ,
                 and
                 Superiority
              
               ;
               nor
               needs
               he
               be
               
                 infeft
                 of
                 new
              
               ;
               because
               ,
               as
               we
               formerly
               observed
               the
               Superiour
               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
               *
            
             
               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
               
                 Superiours
                 hands
              
               ,
               for
               new
               Infeftment
               to
               be
               given
               by
               the
               Superiour
               to
               that
               third
               partie
               .
            
             
               The
               warrand
               of
               both
               these
               Resignations
               is
               a
               Procuratorie
               granted
               by
               the
               Seller
               ,
               to
               a
               
                 blank
                 Person
              
               ,
               (
               and
               this
               warrand
               is
               ordinarly
               inserted
               in
               the
               disposition
               )
               impowering
               him
               to
               
                 resign
                 the
                 Feu
                 in
                 the
                 Superiours
                 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
               Superiour
               ,
               and
               upon
               his
               Knee
               ,
               holding
               a
               Staff
               or
               Pen
               at
               the
               one
               end
               ,
               which
               the
               Superiour
               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
               Superiour
               )
               is
               infeft
               ,
               and
               his
               Seasin
               must
               be
               Registrated
               within
               60.
               dayes
               ,
               as
               said
               is
               .
            
             
               The
               Resignation
               does
               not
               perfectly
               denude
               the
               Seller
               ,
               untill
               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
               Non-entrie
               in
               the
               Superiours
               hand
               ,
               after
               the
               resignation
               is
               made
               ,
               untill
               the
               person
               in
               whose
               favours
               it
               was
               made
               be
               
                 infeft
                 ,
                 for
              
               otherwayes
               the
               superiour
               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
               Superiour
               ,
               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
               
               Superiour
               ;
               if
               he
               accept
               a
               
                 second
                 Resignation
              
               ,
               whereby
               a
               
                 prior
                 infeftment
              
               may
               be
               taken
               to
               his
               prejudice
               ,
               and
               the
               Superiour
               gets
               all
               his
               
                 Casualities
                 ,
                 as
                 Ward
                 ,
                 Marriage
                 ,
                 Liferent
                 Escheat
                 ,
                 &c.
              
               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
                 casualities
              
               .
            
          
           
             
               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
               meer
               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
               exprest
               ,
               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
               duely
               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
               
                 personall
                 binding
              
               ,
               onely
               the
               Granter
               and
               his
               Heirs
               ,
               yet
               they
               are
               
                 real
                 rights
                 by
                 our
                 Statutes
              
               ,
               and
               affect
               singular
               *
               Successours
               .
            
             
               They
               and
               all
               Bands
               to
               make
               reversions
               ,
               or
               ●ikes
               to
               reversions
               ,
               must
               be
               registrated
               within
               60.
               dayes
               in
               the
               same
               Register
               with
               Seasins
               ;
               for
               else
               a
               
                 singular
                 Successour
              
               is
               not
               obliged
               to
               regard
               them
               *
               ;
               so
               that
               if
               any
               buy
               the
               Land
               irredeemably
               ,
               and
               compleat
               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
               sumes
               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
                 Mans
                 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
               Superiour
               ;
               and
               thereafter
               the
               Disponer
               needs
               not
               to
               be
               
                 infeft
                 of
                 new
              
               ;
               as
               no
               Superiour
               needs
               ;
               but
               if
               the
               Wadset
               be
               given
               to
               be
               holden
               of
               the
               Superiour
               ;
               then
               the
               Disponer
               uses
               to
               take
               a
               
                 Letter
                 of
                 regress
              
               ,
               whereby
               the
               Superiour
               obliges
               him
               to
               receive
               him
               back
               to
               be
               his
               Vassal
               ,
               when
               he
               shall
               
                 redeem
                 his
                 own
                 lands
              
               ;
               for
               otherwayes
               after
               the
               Wadsetter
               is
               seased
               ,
               the
               Superiour
               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
               sumes
               for
               which
               the
               Wadset
               was
               granted
               ,
               are
               still
               heritable
               before
               Declarator
               ;
               but
               after
               that
               they
               are
               moveable
               ,
               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
               
                 annual-rent
                 for
                 termes
                 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
               payes
               himself
               all
               
                 publick
                 burdens
                 .
                 Improper
                 Wadsets
              
               ,
               are
               these
               ,
               wherein
               the
               Granter
               of
               the
               Wadset
               payes
               the
               
                 publick
                 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
               annual-rent
               ;
               and
               yet
               the
               Granter
               is
               to
               pay
               the
               
                 publick
                 burdens
              
               ,
               this
               is
               accounted
               Usury
               by
               
                 Our
                 Law
              
               ;
               the
               punishment
               whereof
               is
               
                 confiscation
                 of
                 moveables
              
               loosing
               of
               the
               
                 principal
                 sum
              
               and
               anulling
               the
               
                 usury
                 ,
                 contract
              
               ,
               or
               paction
               *
               ;
               and
               by
               a
               late
               Statute
               ,
               
                 If
                 the
                 Debitor
                 offers
                 security
                 for
                 the
                 Money
                 ,
                 and
                 craves
                 possession
                 ,
                 the
                 Wadsetter
                 must
                 either
                 quit
                 his
                 possession
                 ,
                 or
                 restrict
                 himself
                 to
                 his
                 annualrent
              
               *
               .
               And
               if
               a
               Man
               impignorat
               his
               Lands
               ,
               or
               Bands
               ,
               with
               expresse
               condition
               ,
               that
               
                 if
                 the
                 Money
                 be
                 not
                 payed
                 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
               Barr
               ;
               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
               
                 mens
                 lands
              
               ,
               which
               was
               
                 the
                 origin
                 of
                 our
                 present
                 infeftments
                 of
                 annualrent
                 ,
              
               and
               
                 continues
                 still
                 frequent
              
               ;
               by
               which
               if
               men
               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
               
                 ordinarly
                 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
               poynd
               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
               poynd
               or
               exact
               from
               the
               tennents
               any
               more
               then
               they
               owe
               to
               their
               master
               *
               .
            
             
               These
               annualrents
               require
               a
               special
               seasin
               ,
               like
               Wadsets
               ,
               and
               
                 other
                 real
                 rights
              
               ;
               the
               symbols
               whereof
               ,
               if
               the
               annualrent
               be
               payable
               in
               money
               ,
               is
               a
               
                 penney
                 of
                 money
              
               ;
               but
               if
               it
               be
               payable
               in
               Victual
               ,
               it
               is
               a
               
                 parcel
                 of
                 Victual
              
               .
            
             
               This
               is
               
                 singular
                 in
                 infeftment
                 of
                 annualrent
              
               ,
               that
               apprysing
               ,
               thereupon
               will
               be
               preferred
               to
               all
               
                 prior
                 apprysing
                 ,
                 quoad
              
               the
               
               bygones
               ,
               of
               the
               annualrent
               ,
               if
               the
               infeftment
               of
               
                 annualrent
                 was
                 prior
              
               to
               those
               apprysings
               to
               which
               the
               apprysing
               will
               be
               drawn
               back
               ,
               and
               preferred
               to
               
                 any
                 interveening
                 right
              
               ,
               which
               priviledge
               is
               continued
               in
               the
               
                 late
                 Act
                 of
                 Parliament
              
               ,
               concerning
               Debitor
               and
               Creditor
               *
               .
            
             
               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
               debitor
               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
               payed
               ,
               the
               right
               becomes
               absolutely
               null
               ,
               as
               being
               but
               a
               
                 temporarie
                 right
              
               ,
               and
               so
               the
               debitor
               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
               Mans
               Property
               ,
               or
               Ground
               is
               affected
               with
               some
               burden
               ,
               for
               the
               use
               and
               behoove
               of
               another
               Man
               ;
               which
               are
               devided
               in
               
                 Rural
                 servitudes
              
               ,
               and
               
                 Citie
                 servitudes
              
               .
            
             
               
                 Rural
                 Servitudes
              
               ,
               are
               Iter
               ,
               which
               is
               ,
               a
               power
               of
               going
               through
               
                 our
                 neighbours
                 land
                 ;
                 Actus
              
               ,
               which
               is
               a
               power
               of
               driving
               Carts
               ,
               or
               Waines
               ;
               Via
               ,
               being
               the
               priviledge
               of
               having
               
                 high
                 wayes
              
               in
               our
               
                 neighbours
                 ground
              
               ;
               and
               Aquae-ductus
               ,
               which
               is
               a
               power
               and
               priviledge
               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
               waines
               ,
               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
               priviledge
               ,
               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
               priviledge
               of
               
               
                 forceing
                 our
                 neighbour
              
               to
               receive
               into
               his
               house
               the
               jests
               of
               ours
               .
            
             
               
                 Tertio
                 ,
                 Stillicidii
                 ,
                 vel
                 fluminis
                 ,
              
               which
               ,
               is
               whereby
               our
               neighbor
               is
               obliged
               to
               receive
               
                 the
                 drops
                 which
                 falls
                 from
                 our
                 house
                 ,
              
               under
               which
               ,
               is
               likewise
               comprehended
               the
               priviledge
               
                 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
               seasin
               ;
               because
               they
               
               are
               
                 incorporeal
                 rights
              
               ;
               but
               though
               a
               servitude
               meerly
               established
               by
               write
               ,
               be
               sufficient
               against
               the
               granter
               ;
               yet
               they
               are
               not
               valid
               against
               
                 singular
                 Successors
              
               ;
               except
               that
               right
               be
               cloathed
               with
               possession
               ,
               which
               compleats
               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
               Cattel
               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
              
               ,
               cloathed
               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
                 rent
                 thereof
                 .
              
            
             
               
                 Common
                 Pasturage
              
               in
               
                 our
                 Law
              
               ,
               
               does
               ordinarly
               comprehend
               all
               the
               
                 lesser
                 servitudes
              
               ;
               such
               as
               the
               casting
               of
               Faill
               and
               Divots
               ,
               presumptively
               onely
               ;
               for
               the
               one
               may
               be
               possest
               without
               the
               other
               ;
               nor
               will
               
                 common
                 Pasturage
              
               inferr
               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
               Seasin
               ;
               the
               Symbols
               whereof
               are
               clap
               and
               happer
               ;
               but
               if
               the
               mill
               be
               in
               a
               
                 Barrony
                 transit
                 cum
                 universitate
              
               .
            
             
               Mills
               ,
               are
               ordinarly
               dispond
               with
               multers
               and
               Sequels
               ;
               the
               Multurs
               are
               a
               quantitie
               
                 of
                 corn
              
               ,
               payable
               to
               the
               
                 Heritor
                 of
              
               
               
                 the
                 mill
              
               for
               grinding
               .
               The
               
                 knaveship
                 ,
                 Lok
                 ,
                 and
                 Bannock
                 ,
              
               are
               a
               small
               quantitie
               payable
               to
               the
               servants
               for
               their
               paines
               .
            
             
               These
               quantities
               ,
               that
               are
               payed
               by
               those
               that
               are
               thirled
               ,
               are
               called
               ,
               
                 Insucken
                 multurs
              
               ,
               and
               those
               quantities
               ,
               that
               are
               payed
               by
               such
               as
               come
               voluntarly
               ,
               are
               called
               
                 outsucken
                 multurs
              
               .
            
             
               Thirlages
               ,
               are
               constitute
               by
               write
               ,
               or
               by
               prescription
               .
            
             
               The
               wayes
               of
               constituting
               thirlage
               by
               write
               ,
               are
               these
               ;
            
             
               First
               ,
               When
               a
               
                 Master
                 thirles
              
               his
               own
               Tennents
               ,
               to
               his
               own
               Mill
               ;
               in
               which
               case
               ordinarly
               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
                 Barrony
                 ,
                 cum
                 multuris
                 ,
              
               or
               
                 cum
                 astrictis
                 multuris
              
               ;
               in
               either
               of
               these
               cases
               ,
               he
               thereby
               astricts
               his
               whole
               Barrony
               ;
               though
               not
               
                 formerly
                 astricted
              
               ;
               but
               if
               he
               dispone
               the
               
               Mill
               of
               the
               
                 Barrony
                 ,
                 cum
                 multuris
                 solitis
                 &
                 consuetis
              
               ;
               he
               i●
               thereby
               understood
               to
               hav●
               thirled
               onely
               what
               was
               
                 formerl●
                 thirled
              
               .
            
             
               If
               the
               thirlage
               bears
               
                 omnigrana
                 crescentia
              
               ,
               all
               the
               Corn
               growing
               upon
               the
               Land
               wil●
               be
               thirled
               ,
               with
               deduction
               onely
               of
               seed
               ,
               and
               
                 Horse
                 corn
              
               ,
               and
               th●
               ferme
               ;
               except
               it
               be
               carryed
               to
               another
               Mill
               ,
               for
               it
               is
               presumed
               ferms
               must
               be
               sold.
               
            
             
               Quinto
               ,
               When
               
                 invecta
                 &
                 illata
              
               are
               thirled
               ,
               all
               Corns
               which
               thole
               Fire
               and
               Water
               withi●
               the
               astriction
               ,
               must
               pay
               multur●
               though
               they
               come
               not
               to
               th●
               Mill
               ;
               but
               being
               made
               in
               Malt
               are
               thereafter
               carryed
               abroa●
               out
               of
               the
               thirle
               .
            
             
               The
               way
               of
               constituting
               thirlage
               by
               prescription
               ,
               is
               immemoral
               ,
               
               or
               40.
               years
               possession
               ,
               by
               vertue
               of
               some
               title
               ;
               such
               as
               a
               Decreet
               ,
               though
               in
               absence
               ;
               and
               even
               when
               the
               Master
               is
               not
               called
               ;
               and
               any
               Act
               of
               a
               
                 Barron
                 court
              
               ,
               though
               made
               onely
               by
               a
               Bailie
               ,
               without
               a
               special
               warrand
               from
               the
               Heritor
               ;
               and
               though
               the
               coming
               to
               a
               
                 Mill
                 ,
                 past
                 all
                 memorie
              
               ,
               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
               
                 Kings
                 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
               payed
               
                 dry
                 multure
              
               ,
               for
               so
               long
               
               a
               time
               except
               they
               had
               been
               thirled
               .
            
             
               If
               the
               quantity
               to
               be
               payed
               ,
               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
               
                 dammes
                 ,
                 water-gangs
              
               ,
               and
               to
               bring
               home
               its
               Mill-stones
               .
            
             
               If
               such
               as
               are
               thirled
               ,
               bring
               not
               their
               Corns
               ,
               they
               are
               persued
               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
               priviledge
               to
               the
               Feuer
               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
               .
            
             
               
                 Mixt
                 Servitudes
              
               are
               partly
               real
               ,
               and
               partly
               personal
               ;
               and
               by
               the
               
                 Civil
                 Law
              
               are
               divided
               in
               
                 usu
                 fruct
                 ,
                 use
              
               ,
               and
               habitation
               .
            
             
             
               Usus-fructus
               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
               
                 Fiar
                 denuds
                 himself
              
               of
               the
               Fie
               in
               favours
               of
               another
               ,
               reserving
               his
               own
               liferent
               ;
               or
               by
               a
               new
               constitution
               ;
               as
               when
               the
               Fiar
               dispons
               his
               lands
               to
               another
               ,
               during
               all
               the
               dayes
               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
               moe
               persons
               are
               joyntly
               infeft
               ,
               they
               are
               called
               conjunct
               Fiars
               ;
               but
               though
               a
               wife
               be
               a
               
                 conjunct
                 Fiar
              
               ;
               yet
               
               her
               Fie
               lasts
               but
               
                 during
                 her
                 life
              
               ;
               and
               during
               her
               life
               ,
               she
               may
               enter
               Vassals
               ,
               and
               has
               right
               also
               to
               all
               the
               casualities
               ,
               as
               other
               Fiars
               .
            
             
               Liferents
               by
               Law
               ,
               are
               the
               Terce
               ,
               and
               the
               courtisie
               .
            
             
               The
               Terce
               is
               a
               liferent
               of
               the
               
                 third
                 of
                 all
                 the
                 tenements
              
               ,
               wherein
               the
               husband
               dyed
               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
              
               *
               ;
               which
               Terce
               is
               constituted
               by
               an
               inquest
               ,
               who
               upon
               a
               brief
               out
               the
               
                 Cbancellary
                 ,
                 directed
              
               to
               the
               Sberriff
               ,
               or
               other
               
                 judge
                 ordinary
              
               ,
               doe
               serve
               her
               to
               a
               Terce
               ;
               upon
               which
               service
               ,
               the
               judge
               to
               whom
               the
               brief
               was
               directed
               without
               retouring
               it
               ,
               divids
               the
               land
               betwixt
               the
               heir
               ;
               and
               Relict
               ,
               and
               expresses
               
               the
               marches
               in
               an
               instrument
               ,
               and
               this
               is
               called
               to
               kenne
               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
               tennents
               ,
               till
               she
               be
               kenned
               ,
               as
               said
               is
               ,
               the
               kenning
               being
               equivalent
               here
               to
               the
               
                 seasin
                 in
                 lifrents
              
               .
            
             
               This
               Brive
               contains
               two
               points
               ;
               first
               ,
               that
               the
               bearer
               ,
               was
               
                 Lawful
                 Wife
              
               ,
               to
               the
               defunct
               and
               secundo
               ;
               that
               he
               dyed
               infeft
               in
               such
               tenements
               ,
               but
               if
               the
               Relict
               was
               holden
               and
               reput
               
                 lawful
                 Wife
              
               ,
               in
               her
               
                 Husbands
                 life
              
               ;
               no
               exception
               in
               the
               contrary
               will
               stop
               the
               service
               †
               .
            
             
               There
               is
               no
               Terce
               in
               
                 Burgage
                 Lands
                 ,
                 Feu
                 duties
              
               ,
               or
               other
               
               casualities
               ,
               nor
               in
               
                 reversions
                 ,
                 tacks
              
               ,
               nor
               Patronages
               .
            
             
               The
               Courtisie
               ,
               is
               a
               liferent
               ,
               granted
               by
               Law
               ,
               to
               him
               who
               married
               an
               Heritrix
               ,
               of
               all
               her
               Heritage
               ,
               and
               of
               that
               only
               ;
               It
               needs
               neither
               seasin
               ,
               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
                 disolve
                 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
               *
               .
            
             
             
               If
               Liferenters
               survive
               Martinmess
               ;
               or
               if
               they
               die
               upon
               
                 Martinmess
                 day
              
               ,
               in
               the
               afternoon
               ;
               their
               Executors
               will
               have
               right
               to
               the
               whole
               
                 years
                 rent
              
               ,
               whether
               it
               be
               
                 Land
                 rent
              
               ,
               or
               the
               
                 rent
                 of
                 a
                 mill
              
               ;
               albeit
               the
               
                 Conventional
                 termes
              
               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
               *
               ,
               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
                 Churches
                 revenue
              
               ;
               But
               that
               the
               proportion
               is
               not
               
                 Iuris
                 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
                 gaine
              
               and
               profites
               ,
               that
               a
               Man
               has
               by
               his
               
                 Trade
                 ;
                 Predial
                 teynds
              
               which
               aryse
               from
               the
               Natural
               Product
               of
               the
               Land
               
               that
               men
               possess
               .
               And
               
                 mixt
                 Teynds
              
               which
               arise
               from
               the
               profites
               ,
               that
               men
               by
               their
               
                 Personal
                 industrie
              
               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
               Viccar
               ,
               he
               has
               right
               to
               the
               
                 Viccarage
                 teynds
              
               .
            
             
               The
               
                 teynds
                 of
                 Corn
              
               ,
               are
               called
               
                 Parsonage
                 teynds
              
               ,
               or
               
                 decimae
                 garbales
              
               ;
               and
               the
               
                 fifth
                 boll
              
               of
               the
               
                 free
                 rent
              
               is
               still
               teynd
               with
               us
               ;
               And
               all
               Land
               must
               pay
               teynd
               ;
               except
               they
               be
               such
               as
               have
               been
               Feued
               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
               priviledges
               granted
               to
               
                 Temple
                 lands
              
               ,
               which
               belonged
               of
               old
               to
               the
               
                 Knights
                 of
                 St.
                 Iohn
                 ,
                 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
                 ,
                 &c.
              
               and
               they
               are
               said
               to
               be
               local
               ;
               because
               they
               are
               payed
               according
               to
               the
               custome
               of
               the
               place
               ;
               so
               that
               in
               the
               same
               Parishes
               ,
               some
               Heritors
               ,
               will
               be
               lyable
               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
               supprest
               ,
               
               all
               the
               Lands
               belonging
               to
               Monks
               ,
               and
               others
               ,
               were
               annexed
               to
               the
               Crown
               ,
               in
               anno
               1587
               *
               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
               
                 mens
                 teynds
              
               ;
               and
               great
               emulation
               as
               well
               as
               prejudice
               arising
               from
               mens
               not
               having
               right
               to
               lead
               their
               
                 own
                 teynds
              
               .
            
             
             
               
                 King
                 Charles
                 the
                 first
              
               ,
               did
               therefore
               prevaile
               with
               all
               the
               the
               saids
               
                 Titulars
                 of
                 erection
              
               ,
               to
               submit
               what
               should
               be
               payed
               them
               ,
               as
               the
               price
               of
               the
               saids
               teynds
               ;
               and
               
                 His
                 Majestie
              
               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
               joyntly
               ;
               but
               the
               fourth
               part
               onely
               where
               the
               teynds
               were
               usually
               set
               separate
               from
               the
               Stock
               ;
               A
               fifth
               part
               being
               Deduced
               by
               the
               King
               in
               that
               case
               ;
               because
               ordinarly
               Church-men
               used
               to
               draw
               too
               great
               a
               proportion
               ;
               and
               this
               deduction
               is
               therefore
               called
               the
               
                 Kings
                 ease
              
               ;
               as
               also
               ,
               that
               the
               saids
               teynds
               being
               valued
               ,
               should
               be
               bought
               at
               nine
               years
               purchase
               *
               .
            
             
               For
               Effectuating
               this
               determination
               ,
               
               the
               Parliament
               1633.
               appointed
               some
               of
               their
               own
               number
               ,
               to
               value
               the
               saids
               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
              
               payed
               them
               ;
               
                 &
                 eo
                 casu
              
               ,
               they
               have
               the
               
                 sole
                 probation
              
               likewayes
               ,
               they
               proving
               20.
               
                 years
                 possession
              
               of
               uplifting
               
                 Rental
                 bolls
              
               ,
               condescending
               upon
               quantitie
               and
               qualitie
               ;
               or
               Tertio
               ,
               the
               Heritors
               have
               Tacks
               of
               their
               own
               teynds
               ,
               for
               payment
               
                 of
                 Silver
                 dutie
              
               ;
               and
               then
               there
               is
               
                 joynt
                 prabation
              
               allowed
               both
               to
               Heritor
               ,
               and
               Titular
               .
            
             
               
                 Ecclesiastick
                 Persons
              
               ,
               such
               as
               
                 Bishops
                 ,
                 Parsons
                 ,
                 &c.
              
               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
               Majestie
               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
                 Collegiat
                 Kirks
                 may
                 be
                 valued
                 ;
                 and
                 so
                 may
                 be
                 bought
                 and
                 sold.
                 
              
            
             
               The
               Burrows
               are
               onely
               decerned
               to
               sell
               the
               Superplus
               ,
               of
               the
               teynds
               they
               had
               right
               to
               ,
               over
               and
               above
               what
               was
               due
               for
               the
               intertainment
               of
               their
               
                 Ministers
                 ,
                 Colledges
                 ,
                 Schools
              
               ,
               and
               Hospitals
               .
            
             
               After
               the
               teynds
               are
               valued
               ,
               and
               the
               
                 Titular
                 decerned
              
               to
               sell
               ;
               or
               if
               the
               Titular
               be
               willing
               to
               sell
               without
               a
               decreet
               ;
               The
               Heritor
               is
               infeft
               ;
               and
               seased
               by
               the
               Titular
               ,
               who
               in
               the
               disposition
               ,
               or
               Charter
               reserves
               to
               himself
               relief
               of
               the
               
                 Kings
                 annuitie
              
               ,
               and
               of
               all
               
                 imposition
                 ▪
              
               
               laid
               or
               to
               be
               laid
               upon
               teynds
               ;
               and
               warrands
               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
               securitie
               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
               
                 priviledge
                 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
               lyable
               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
               buyes
               the
               same
               will
               be
               lyable
               ;
               but
               tennents
               will
               not
               be
               lyable
               ,
               if
               they
               pay
               a
               
                 joynt
                 dutie
                 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
               
                 Subseque●●
                 years
              
               ,
               after
               which
               the
               Introme●●tors
               ,
               are
               lyable
               to
               a
               Spuilie
               .
            
             
             
               The
               Parliament
               1633.
               did
               after
               the
               said
               submissions
               and
               
                 Decreet
                 arbitral
              
               ,
               grant
               to
               His
               Majestie
               an
               Annuitie
               out
               of
               all
               teynds
               ;
               except
               those
               payed
               to
               Bishops
               ,
               and
               other
               
                 pious
                 uses
                 ;
                 viz.
                 ●en
                 shilling
                 out
                 of
                 every
                 boll
                 of
                 teynd-Wheat
              
               ;
               out
               of
               the
               boll
               of
               the
               best
               
                 teynd-Bear
                 ,
                 eight
                 shilling
                 ;
                 out
                 of
                 Oats
                 ,
                 Peas
                 ,
              
               and
               
                 Rye
                 ,
                 six
                 shilling
              
               ,
               where
               the
               
                 boll
                 of
              
               these
               grains
               did
               yield
               a
               
                 Boll
                 of
                 Meal
              
               ;
               and
               where
               the
               Rent
               consists
               
                 of
                 money
                 ,
                 six
                 merks
                 out
                 of
              
               every
               hundered
               ;
               and
               this
               Annuity
               is
               
                 debitum
                 fundi
              
               ;
               but
               not
               being
               
                 annext
                 to
                 the
                 Crown
              
               ,
               it
               may
               be
               ,
               and
               is
               ordinarly
               bought
               by
               the
               Heritors
               ,
               from
               His
               
                 Majesties
                 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
               treate
               of
               
                 Legal
                 Diligences
              
               ,
               by
               which
               these
               rights
               may
               be
               ●victed
               ,
               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
               
                 partie
                 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
               Warrand
               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
               onely
               Heritage
               ,
               but
               not
               
                 moveables
                 ▪
              
               though
               the
               stile
               thereof
               runes
               equally
               against
               both
               ;
               but
               
                 moveable
                 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
               Apprysings
               ,
               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
               necessar
               upon
               payment
               .
            
             
               But
               by
               a
               late
               Act
               of
               Sederunt
               *
               ,
               
                 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
                 sustaine
                 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
               *
               ,
               and
               after
               
                 crying
                 of
                 three
                 several
                 oyeses
              
               ,
               and
               publick
               reading
               of
               the
               Letters
               ,
               the
               whole
               
                 Leiges
                 are
                 discharged
              
               to
               purchase
               any
               Lands
               or
               Heritages
               ,
               from
               the
               
                 person
                 inhibit
              
               ;
               and
               the
               Messenger
               leaves
               or
               assixes
               a
               
                 coppy
                 of
                 the
                 letters
                 at
                 the
                 mercat
                 cross
              
               ;
               all
               which
               most
               be
               
                 written
                 in
                 a
                 paper
              
               ,
               and
               
                 subscrived
                 by
                 the
                 Messenger
              
               and
               by
               two
               witnesses
               *
               ;
               which
               
                 write
                 ,
                 is
                 called
                 the
                 execution
                 of
                 Inhibition
              
               ;
               and
               there
               ▪
               after
               the
               
                 letters
                 and
                 executions
                 thereof
                 must
                 be
                 Registrated
              
               within
               40
               dayes
               ,
               after
               the
               execution
               thereof
               ;
               either
               in
               the
               
                 general
                 Register
                 at
                 Edinburgh
              
               ,
               or
               in
               the
               
                 particular
                 Register
                 of
                 the
                 Iurisdiction
              
               ,
               
               where
               the
               
                 person
                 inhibit
              
               dwells
               ;
               or
               the
               
                 major
                 part
                 of
                 the
                 Lands
                 lye
              
               *
               ;
               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
               apprysing
               ,
               and
               adjudication
               ,
               and
               the
               last
               ,
               by
               confiscation
               and
               forefaulture
               .
            
             
               Apprising
               proceeds
               by
               letters
               charging
               the
               Debitor
               to
               compear
               before
               a
               Messenger
               ,
               (
               who
               
               is
               by
               the
               Letters
               made
               Iudge
               ;
               and
               Sherriff
               in
               that
               part
               in
               place
               of
               the
               
                 Sherriff
                 of
                 the
                 shire
              
               ,
               whose
               office
               properly
               it
               is
               *
               )
               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
               
                 mans
                 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
                 ,
                 Stewar●ry
              
               ,
               or
               Regality
               where
               the
               
                 Lands
                 lye
              
               ,
               
               and
               left
               
                 coppies
                 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
               Debitor
               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
               past
               in
               Exchequer
               ,
               and
               is
               
                 infeft
                 by
                 precepts
                 out
                 of
                 the
                 Chancellary
              
               ;
               if
               the
               Lands
               hold
               of
               the
               King
               ;
               and
               though
               of
               old
               ,
               
                 land
                 apprysed
              
               ,
               was
               proportioned
               to
               the
               money
               ;
               yet
               thereafter
               whatever
               land
               was
               ●ought
               to
               be
               apprysed
               was
               
               accordingly
               apprysed
               ;
               though
               
                 farr
                 exceeding
              
               the
               sum
               in
               value
               ,
               because
               
                 seven
                 years
              
               was
               given
               (
               which
               was
               thereafter
               prorogate
               to
               ten
               *
               )
               for
               
                 Redeeming
                 the
                 Land
                 by
                 payment
                 of
                 the
                 true
                 sum
                 ,
              
               and
               this
               is
               called
               a
               
                 legal
                 reversion
              
               ;
               because
               the
               Law
               gives
               it
               to
               the
               Debitor
               ;
               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
               Iudgement
               to
               know
               their
               hazard
               ;
               so
               that
               they
               may
               redeem
               at
               any
               time
               before
               they
               be
               25.
               
                 years
                 compleat
              
               ;
               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
                 Debitor
              
               *
               .
            
             
               If
               a
               minor
               succeed
               to
               a
               minor
               ,
               whose
               lands
               are
               apprysed
               ,
               he
               has
               right
               to
               redeem
               ,
               as
               if
               the
               Comprysing
               had
               been
               led
               against
               himself
               ;
               But
               if
               a
               Major
               succeed
               to
               a
               Minor
               ,
               after
               the
               Legall
               is
               expired
               ,
               he
               hath
               onely
               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
               satisfie
               the
               whole
               sums
               and
               annualrents
               resting
               before
               he
               can
               *
               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
               payed
               by
               Intromission
               ,
               within
               the
               Legal
               of
               his
               whole
               
                 principal
                 sum
              
               ,
               bygone
               annualrents
               ,
               and
               expenses
               ,
               with
               the
               composition
               payed
               to
               the
               superior
               ,
               the
               comprising
               expires
               ,
               
                 ipso
                 facto
              
               *
               .
            
             
               Though
               the
               supiriour
               be
               not
               regularly
               obliged
               to
               receive
               a
               
                 singular
                 successour
              
               ;
               yet
               least
               by
               collusion
               betwixt
               the
               debitor
               and
               his
               superiour
               ,
               the
               true
               creditor
               should
               be
               unpayed
               ;
               Therefore
               by
               a
               special
               
                 Act
                 of
                 Parliament
              
               ,
               the
               superiour
               is
               forced
               to
               receive
               a
               Compryser
               upon
               payment
               of
               a
               full
               years
               Duty
               of
               the
               Land
               *
               ,
               and
               he
               gets
               no
               more
               from
               all
               ;
               though
               many
               Comprisers
               charge
               him
               to
               receive
               them
               ;
               but
               if
               the
               
               superiour
               pleases
               he
               may
               retain
               the
               Land
               to
               himself
               ,
               he
               paying
               the
               Debt
               .
            
             
               The
               first
               Comprising
               ,
               without
               seasin
               ,
               carryes
               right
               to
               all
               
                 Tacks
                 ,
                 Reversions
              
               ,
               and
               other
               Rights
               ,
               which
               require
               no
               Infeftment
               ;
               and
               all
               
                 posterior
                 Comprisings
              
               need
               not
               seasin
               ;
               because
               they
               carry
               onely
               the
               Right
               of
               Reversion
               ;
               but
               yet
               ordinarly
               
                 second
                 Apprisers
              
               do
               infeft
               themselves
               ,
               because
               the
               first
               may
               be
               null
               ,
               or
               become
               payed
               ;
               or
               the
               first
               Compriser
               may
               lye
               out
               from
               seeking
               Meals
               and
               Duties
               ;
               or
               the
               second
               Compriser
               would
               remove
               Tennents
               ,
               which
               none
               can
               pursue
               without
               being
               Infeft
               ,
               but
               the
               
                 Superiour
                 comprising
              
               needs
               no
               Infeftment
               .
            
             
               After
               denounciation
               of
               the
               Lands
               to
               be
               apprised
               ,
               the
               Debitor
               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
               resigne
               .
            
             
               In
               a
               competition
               amongst
               Apprisers
               ,
               the
               first
               Infeftment
               ,
               or
               charge
               against
               the
               Superiour
               is
               alwayes
               preferred
               ;
               and
               if
               the
               first
               Compriser
               did
               diligence
               to
               be
               infeft
               ,
               but
               was
               stopt
               by
               collusion
               ,
               as
               if
               the
               Superiour
               to
               gratifie
               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
               Superiour
               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
               Debitor
               ,
               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
               payed
               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
               payed
               by
               Intromission
               ,
               and
               the
               Money
               
                 consigned
                 ▪
              
               
               
                 The
                 Lords
                 decern
                 the
                 comprising
                 to
                 be
                 payed
                 ,
                 and
                 extinct
              
               ;
               nor
               needs
               the
               Debitor
               get
               
                 new
                 seasin
              
               ;
               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
               entrie
               payable
               to
               the
               superiour
               ,
               though
               the
               appryser
               truely
               payed
               neither
               ;
               but
               he
               will
               not
               get
               payment
               of
               a
               
                 Chamberlane
                 Fie
              
               for
               taking
               up
               the
               rent
               ;
               except
               he
               really
               payed
               it
               .
            
             
               All
               apprisings
               led
               since
               the
               first
               
               of
               Ianuary
               ,
               1652.
               within
               year
               and
               day
               of
               the
               first
               
                 effectual
                 comprising
              
               by
               infeftment
               ,
               or
               charge
               
               against
               the
               Superiour
               ,
               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
               Superiour
               by
               the
               first
               appriser
               ;
            
             
               Because
               
                 appearand
                 Heirs
              
               did
               frequently
               acquire
               Rights
               to
               expired
               apprisings
               against
               their
               Predecessours
               ,
               by
               which
               they
               
                 bruicked
                 their
                 ●state
              
               ,
               without
               paying
               his
               Debt
               ,
               to
               the
               ruine
               of
               
                 lawful
                 Creditors
              
               ;
               Therefore
               ,
               
                 Our
                 Law
              
               did
               very
               justly
               ordain
               ,
               all
               such
               Apprisings
               to
               be
               redeemed
               for
               the
               
                 sums
                 truely
                 payed
              
               out
               by
               the
               
                 appearand
                 Heir
              
               ;
               which
               proceeds
               ,
               albeit
               the
               
                 appearand
                 Heir
              
               acquire
               these
               Rights
               in
               his
               
                 Predecessours
                 lifetime
              
               .
               But
               if
               the
               expired
               
               apprising
               was
               acquired
               gratis
               ,
               by
               the
               
                 appearand
                 Heir
              
               ,
               the
               same
               is
               onely
               redeemable
               by
               the
               Creditors
               ,
               for
               the
               sums
               contained
               in
               the
               apprising
               *
               .
            
             
               Because
               the
               Parliament
               thought
               it
               exhorbitant
               to
               take
               the
               greatest
               Estates
               for
               the
               
                 smalest
                 sums
              
               ,
               and
               to
               make
               a
               
                 Messenger
                 Iudge
              
               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
               in●eftment
               ,
               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
               Seasin
               ,
               
               as
               Comprisings
               ;
               and
               the
               Superiour
               is
               obliged
               to
               receive
               the
               Adjudger
               *
               ;
               but
               it
               is
               redeemable
               onely
               within
               
                 five
                 years
              
               by
               Majors
               .
            
             
               If
               the
               Debitor
               compear
               not
               to
               concur
               for
               compleating
               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
               priviledges
               and
               restrictions
               which
               comprisings
               had
               by
               the
               
                 Act
                 of
                 Parliament
              
               ,
               made
               
               concerning
               Debitor
               and
               Creditor
               ,
               in
               *
               Anno
               1661.
               
               But
               if
               the
               Creditor
               attain
               possession
               upon
               his
               comprising
               ,
               or
               Adjudication
               ;
               he
               can
               use
               no
               further
               execution
               against
               the
               Debitor
               ,
               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
                 Debitor
                 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
               onely
               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
               ,
               summarly
               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
              
               *
               .
            
             
               And
               if
               the
               Superiour
               be
               charged
               to
               infeft
               the
               Adjudger
               ,
               he
               will
               get
               a
               
                 years
                 rent
                 for
                 composition
              
               ,
               as
               in
               Comprising
               *
               .
            
             
               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
                 Authours
                 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
               treate
               of
               Obligations
               ,
               and
               
                 Personal
                 Rights
              
               .
            
             
               An
               
                 Obligation
                 ,
                 is
                 de●ined
                 to
              
               
               
                 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
               tyed
               and
               obliged
               to
               Men
               ;
               either
               by
               
                 contracting
                 expresly
              
               with
               them
               ;
               or
               by
               doing
               some
               deed
               which
               induces
               an
               obligation
               without
               an
               
                 expresse
                 paction
              
               ;
               or
               by
               committing
               malefices
               
               against
               them
               .
            
             
               A
               *
               Contract
               is
               an
               
                 agreement
                 entered
                 into
                 by
                 several
                 persons
                 ,
                 inducing
                 an
                 obligation
                 by
                 its
                 own
                 Nature
              
               ;
               *
               
                 and
                 the
                 obligations
                 arysing
                 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
                 .
              
            
             
             
               *
               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
               borrowes
               a
               
                 thousand
                 pounds
              
               ,
               the
               Receiver
               obliges
               himself
               to
               restore
               not
               the
               same
               ;
               but
               another
               
                 thousand
                 pounds
              
               ;
               and
               therefore
               the
               
                 propertie
                 of
                 the
                 thing
                 borrowed
              
               ,
               being
               transferred
               from
               the
               Giver
               to
               the
               Receiver
               ;
               the
               Receiver
               runs
               the
               hazard
               of
               all
               the
               losse
               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
               exprest
               .
            
             
               *
               Loan
               ,
               or
               Commodatum
               ,
               is
               
               that
               Contract
               whereby
               a
               man
               
                 gets
                 the
                 Loan
                 of
                 any
                 p●rticular
                 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
               propertie
               remains
               with
               the
               lender
               ,
               therefore
               if
               the
               thing
               lent
               be
               lost
               ,
               or
               perish
               by
               chance
               ,
               the
               losse
               redounds
               to
               the
               lender
               ;
               for
               the
               thing
               is
               still
               his
               ;
               but
               if
               the
               thing
               be
               lent
               meerly
               for
               the
               advantage
               of
               the
               borrower
               ,
               he
               is
               lyable
               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
               
                 lenders
                 advantage
              
               ,
               then
               
               from
               the
               same
               principal
               
                 of
                 natural
                 equity
              
               ,
               the
               borrower
               is
               only
               obliged
               to
               do
               such
               diligence
               ,
               and
               to
               be
               so
               carefull
               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
               necessarly
               bestowed
               upon
               the
               
                 thing
                 borrowed
              
               ,
               the
               Law
               not
               allowing
               
                 inconsiderable
                 expenses
              
               ;
               because
               ,
               the
               Borrower
               has
               the
               use
               of
               the
               thing
               ,
               which
               should
               compense
               these
               .
               
            
             
               Precarium
               ,
               is
               ,
               
                 when
                 any
                 thing
                 is
                 lent
                 to
                 be
                 called
                 back
                 at
                 the
                 Lenders
                 pleasures
                 ,
                 wherein
                 it
                 differs
                 from
                 Commodatum
              
               ;
               which
               imports
               alwayes
               a
               
                 determinate
                 time
              
               for
               making
               use
               of
               the
               thing
               lent
            
             
             
               
               Depositation
               ,
               is
               that
               Contract
               which
               is
               entered
               into
               by
               one
               mans
               
                 delivering
                 any
                 thing
                 ,
                 into
                 the
                 custodie
                 of
                 another
                 to
                 ●e
                 k●pt
                 gratis
                 for
                 his
                 use
              
               ;
               and
               therefore
               ,
               because
               in
               this
               Contract
               ,
               the
               
                 propertie
                 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
               lyable
               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
               lyable
               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
              
               ,
               Intituled
               ,
               
                 Na●tae
                 caupones
                 Stabularii
              
               ,
               &c.
               
            
             
               As
               in
               this
               Contract
               ,
               the
               Depositar
               is
               lyable
               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
               lye
               beside
               him
               ,
               for
               generally
               a
               
                 Gratuitous
                 Office
              
               ,
               ought
               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
               ,
               
               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
                 it self
                 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
               lyable
               to
               do
               such
               diligence
               for
               preserving
               thereof
               as
               
                 prudent
                 men
              
               use
               to
               do
               in
               their
               own
               Affairs
               ;
               but
               he
               is
               not
               lyable
               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
               lyable
               to
               the
               
                 Heritor
                 for
                 payment
                 of
                 his
                 rent
                 .
              
            
             
               If
               one
               man
               payes
               to
               another
               more
               than
               is
               
                 due
                 to
                 him
              
               ;
               or
               
               what
               is
               not
               
                 due
                 at
                 all
              
               ,
               the
               Law
               allowes
               to
               him
               Repetition
               of
               what
               was
               
                 unjustly
                 payed
              
               ;
               and
               this
               is
               called
               (
               
                 condictio
                 indebiti
              
               ;
               )
               because
               by
               paying
               
               to
               you
               ,
               I
               oblige
               you
               really
               and
               
                 in
                 effect
              
               ,
               to
               repay
               what
               shall
               be
               found
               not
               to
               be
               due
               ;
               or
               to
               have
               been
               payed
               more
               than
               was
               
                 really
                 due
              
               ;
               but
               since
               this
               obligation
               arises
               from
               the
               
                 payers
                 ignorance
              
               ,
               therefore
               if
               he
               knew
               that
               what
               he
               payed
               was
               not
               due
               ,
               he
               will
               not
               get
               Repetition
               ;
               but
               what
               he
               payed
               will
               be
               lookt
               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
               payed
               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
               
               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
                 reall
                 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
               ;
               
               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
                 partie
              
               ,
               and
               not
               by
               witnesses
               ,
               though
               the
               sum
               be
               never
               so
               smal
               .
            
             
               Because
               ,
               
                 Mens
                 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
               partie
               can
               write
               ;
               or
               by
               two
               Notars
               ,
               and
               four
               witnesses
               ;
               if
               the
               partie
               cannot
               write
               *
               ;
               except
               the
               write
               
               be
               holograph
               ;
               and
               that
               the
               writter
               and
               witnesses
               be
               
                 specially
                 designed
              
               *
               ;
               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
               
               they
               be
               not
               signed
               before
               witnesses
               ;
               and
               
                 delivery
                 of
                 goods
              
               ,
               upon
               bargans
               are
               sustained
               to
               be
               prov'd
               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
               Accessory
               Obligations
               .
            
             
               THough
               all
               Contracts
               require
               the
               consent
               of
               the
               Contracters
               ;
               yet
               there
               are
               four
               ,
               
                 viz.
                 Emption
                 ,
                 Location
                 ,
                 Society
                 ,
              
               and
               Mandat
               ;
               which
               are
               said
               in
               a
               more
               special
               way
               to
               arise
               from
               Consent
               ;
               because
               these
               Contracts
               are
               perfected
               by
               meer
               
                 consent
                 of
                 Parties
              
               ,
               without
               any
               further
               solemnity
               ,
               or
               tradition
               ;
               and
               thus
               how
               soon
               
                 two
                 parties
                 agree
              
               ,
               
               concerning
               the
               
                 price
                 of
                 any
                 thing
              
               that
               is
               to
               be
               sold
               ,
               that
               Contract
               is
               by
               meer
               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
               untill
               delivery
               ;
               and
               if
               the
               thing
               
                 bought
                 perish
              
               without
               the
               
                 Sellers
                 fault
              
               ,
               even
               before
               delivery
               ,
               the
               losse
               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
               Symbole
               or
               mark
               of
               agreement
               ;
               yet
               the
               consent
               without
               the
               earnest
               or
               arles
               (
               as
               we
               call
               it
               )
               compleats
               the
               bargan
               ;
               and
               if
               the
               earnest
               be
               in
               
                 current
                 money
              
               ,
               it
               is
               to
               be
               imputed
               as
               a
               
                 part
                 of
                 the
                 price
              
               .
               
            
             
               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
                 partie
              
               ,
               to
               whom
               it
               was
               referred
               ,
               either
               will
               not
               ,
               or
               cannot
               determine
               the
               price
               .
            
             
               Location
               and
               Conduction
               ,
               is
               a
               
               
                 Contract
                 ,
                 whereby
                 a
                 hyre
                 is
                 given
                 ,
                 for
                 the
                 use
                 and
                 profite
                 of
                 any
                 thing
                 ,
                 or
                 for
                 the
                 work
                 of
                 persons
              
               ;
               It
               differeth
               from
               Emption
               and
               Vendition
               ,
               chiefly
               in
               this
               ,
               that
               the
               designe
               of
               that
               Contract
               is
               ,
               to
               transferr
               the
               property
               ;
               but
               in
               Location
               the
               property
               remains
               with
               the
               Setter
               .
            
             
               This
               Contract
               ,
               being
               entred
               
               into
               by
               the
               
                 mutual
                 consent
              
               ,
               and
               for
               the
               advantage
               of
               both
               parties
               ;
               the
               conductor
               is
               only
               lyable
               ,
               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
               lyable
               to
               make
               it
               up
               to
               the
               Locator
               .
            
             
               Location
               or
               setting
               of
               Lands
               for
               a
               certain
               hyre
               ,
               (
               called
               the
               Tack-dutie
               ,
               )
               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
               hyre
               will
               not
               be
               due
               ,
               since
               that
               was
               given
               for
               the
               profite
               and
               use
               of
               the
               ground
               ;
               But
               if
               there
               be
               not
               an
               
                 absolute
                 Sterility
              
               ;
               and
               that
               the
               Land
               
               yield
               some
               profite
               ,
               though
               never
               so
               little
               ;
               the
               hyre
               will
               be
               due
               ,
               if
               the
               profite
               but
               exceed
               the
               expence
               of
               the
               labouring
               .
            
             
               From
               this
               Contract
               there
               arise
               
                 two
                 Actions
              
               ,
               the
               one
               whereby
               the
               Conductor
               is
               obliged
               to
               pay
               the
               hyre
               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
               imployed
               upon
               the
               thing
               hyred
               ,
               during
               the
               
                 Location
                 .
                 Vide
                 supra
                 ,
                 Part
              
               2.
               
               Title
               6.
               
            
             
               Society
               ,
               is
               a
               Contract
               ,
               whereby
               several
               persons
               obliege
               themselves
               
               to
               
                 communicate
                 losse
                 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
               gaine
               or
               losse
               be
               expressed
               ,
               the
               one
               regulates
               still
               the
               other
               ;
               but
               because
               some
               
                 Mens
                 pains
              
               are
               of
               as
               great
               value
               ,
               as
               other
               
                 Mens
                 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
               losse
               ;
               but
               the
               Contract
               would
               be
               null
               ,
               if
               it
               were
               provided
               ,
               
                 that
                 one
                 should
                 have
                 all
                 the
                 gain
                 and
                 no
                 losse
                 ,
              
               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
               otherwayes
               provided
               ;
               for
               this
               is
               a
               
                 Personal
                 Contract
              
               ,
               wherein
               Men
               respect
               the
               Humour
               and
               industrie
               of
               one
               another
               ;
               and
               so
               this
               Contract
               is
               disolved
               ,
               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
               
                 lyable
                 for
                 further
                 diligence
              
               ,
               then
               they
               used
               to
               adhibite
               
               in
               their
               own
               affairs
               ;
               for
               having
               
                 voluntarly
                 choosed
              
               one
               another
               for
               partners
               ;
               it
               is
               presumed
               they
               are
               satisfied
               with
               one
               anothers
               diligence
               ,
               the
               contract
               being
               entered
               into
               for
               the
               behoove
               and
               profite
               of
               all
               the
               partners
               .
            
             
               *
               Mandate
               ,
               is
               that
               Contract
               whereby
               one
               
                 employes
                 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
               imployed
               Seius
               ,
               to
               buy
               him
               ,
               such
               a
               particular
               piece
               of
               Land
               for
               10000
               
                 lib.
                 Titius
              
               is
               obliged
               to
               
                 ratifie
                 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
               ratifie
               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
               intire
               ;
               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
               intire
               ;
               the
               
                 person
                 employed
              
               may
               and
               must
               
               proceed
               to
               
                 execute
                 the
                 mandate
              
               ,
               ●otwithstanding
               of
               the
               
                 Revocation
                 ,
                 death
              
               ,
               or
               Renounciation
               .
            
             
               Mandatars
               are
               lyable
               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
               ta●iturnity
               ;
               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
               
               
                 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
               implyes
               
                 exuberant
                 trust
              
               .
            
             
               Tertio
               ,
               No
               
                 General
                 Mandate
              
               will
               imply
               a
               power
               to
               
                 alienate
                 Immoveables
              
               ;
               or
               to
               submit
               or
               transact
               any
               
                 litigious
                 business
              
               .
            
             
               Quarto
               ,
               If
               in
               the
               general
               Mandate
               some
               speciall
               cases
               are
               exprest
               ,
               it
               will
               not
               be
               extended
               to
               cases
               of
               greater
               importance
               ,
               than
               those
               exprest
               .
            
             
               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
               intrusted
               .
            
             
               Exercitor
               ,
               is
               he
               to
               whom
               the
               profit
               of
               a
               Ship
               doth
               belong
               ;
               whether
               he
               be
               the
               Owner
               ,
               or
               hath
               onely
               
                 freighted
                 the
                 ship
              
               :
               
               the
               Master
               is
               the
               person
               intrusted
               with
               the
               
                 charge
                 of
                 the
                 ship
              
               ,
               who
               has
               power
               to
               oblige
               the
               Exercitor
               ,
               by
               
                 contracting
                 for
                 the
                 reparation
                 ,
                 and
                 out●igging
                 of
                 the
                 ship
              
               ;
               and
               in
               matters
               relating
               to
               the
               Voyage
               .
            
             
               Institors
               ,
               are
               intrusted
               with
               
                 particular
                 Negotiations
                 at
                 land
              
               ,
               such
               as
               keeping
               of
               Shops
               ,
               &c.
               
               and
               they
               oblige
               their
               Prepositors
               ,
               in
               relation
               to
               the
               affair
               wherein
               they
               are
               intrusted
               ,
               as
               Exercitors
               are
               in
               
                 Maritim
                 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
               
                 Masters
                 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
               Intrusted
               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
               own'd
               ,
               and
               becomes
               valid
               ;
               not
               from
               the
               time
               of
               the
               
               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
               inferr
               an
               approbation
               of
               them
               ;
               but
               because
               Homologa●●on
               ,
               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
               
               they
               have
               the
               resemblance
               ,
               and
               are
               of
               the
               nature
               of
               Contracts
               ;
               and
               these
               are
               
                 Negotiorum
                 Gestio
              
               ,
               whereby
               if
               any
               person
               manage
               your
               business
               
               advantagiously
               for
               you
               ;
               you
               are
               lyable
               to
               him
               for
               his
               expense
               ;
               though
               you
               gave
               him
               no
               Mandate
               ;
               least
               such
               as
               are
               absent
               should
               be
               prejudged
               by
               the
               negligence
               of
               their
               Friends
               ;
               as
               the
               Manager
               is
               lyable
               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
               mans
               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
               Tutorie
               ,
               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
               
               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
               
                 Accessory
                 Obligation
              
               that
               I
               need
               
               mention
               is
               Cautionary
               ;
               whereby
               one
               man
               becomes
               
                 surtie
                 for
                 another
              
               ;
               either
               to
               pay
               a
               sum
               ,
               or
               perform
               a
               deed
               ;
               betwixt
               
               which
               two
               ,
               there
               is
               this
               difference
               ,
               that
               these
               that
               are
               
                 Cautioners
                 for
                 a
                 sum
              
               ,
               if
               they
               be
               bound
               conjunctually
               and
               severally
               ,
               with
               the
               
                 principal
                 debitor
              
               ;
               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
               compt
               ,
               or
               be
               honest
               ;
               therefore
               they
               cannot
               be
               lyable
               untill
               the
               Principals
               first
               be
               cited
               to
               compt
               in
               the
               one
               Case
               ;
               or
               to
               
               answer
               for
               their
               delinquencies
               in
               the
               other
               ;
               and
               they
               are
               onely
               lyable
               to
               make
               up
               what
               is
               wanting
               from
               their
               Principals
               after
               they
               are
               discust
               .
            
             
               Because
               Cautioners
               for
               sums
               are
               lyable
               as
               principals
               ;
               therefore
               their
               Obligation
               may
               subsist
               ;
               though
               the
               
                 Obligation
                 of
              
               the
               
                 Principal
                 Partie
              
               be
               found
               null
               ,
               or
               reduced
               by
               any
               priviledge
               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
               it self
               ;
               as
               if
               the
               Principal
               did
               not
               sign
               ,
               then
               this
               obligation
               because
               it
               is
               but
               accessory
               ,
               retains
               so
               much
               of
               its
               own
               nature
               as
               to
               free
               the
               Cautioner
               .
            
             
               
                 Cautioners
                 ,
                 are
                 to
                 get
                 relief
              
               
               
                 from
                 their
                 Principals
                 ,
                 not
                 onely
                 of
                 the
                 principal
                 sums
                 ,
                 and
                 annualrents
                 ;
                 but
                 of
                 all
                 dammage
                 ,
                 and
                 interest
                 ;
                 and
                 whether
                 the
                 same
                 be
              
               
               
                 provided
                 by
                 the
                 bond
                 or
                 not
              
               ;
               and
               where
               there
               are
               many
               Co-Cautioners
               ;
               they
               are
               lyable
               
                 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
               onely
               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
               meer
               Ratification
               ,
               as
               by
               
                 Donation
                 ,
                 &c.
              
               then
               they
               are
               not
               bound
               to
               communicate
               
               what
               ease
               they
               get
               ;
               for
               a
               Creditor
               may
               justly
               gratifie
               one
               of
               his
               Cautioners
               as
               his
               Friend
               ,
               or
               Relation
               ,
               without
               being
               obliged
               to
               gratifie
               the
               rest
               .
            
             
               To
               make
               Obligations
               effectual
               ,
               it
               is
               necessar
               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
               lyable
               for
               the
               Value
               ,
               as
               Dammage
               and
               Interest
               ;
               yet
               in
               these
               the
               Value
               is
               not
               due
               ,
               nor
               will
               he
               be
               lyable
               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
               lyable
               
                 pro
                 damno
                 &
                 inter
                 esse
              
               ;
               or
               for
               the
               penalty
               .
            
             
               Amongst
               
                 Obligations
                 ,
                 Donation
              
               
               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
                 meer
                 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
              
               ,
               
               called
               
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
              
               ,
               is
               when
               a
               Man
               
                 bestowes
                 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
              
               
               
                 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
               expresly
               ,
               or
               by
               strong
               presumptions
               ,
               that
               the
               thing
               gifted
               ,
               was
               onely
               
                 gifted
                 in
                 contemplation
                 of
                 Death
              
               .
            
             
               Gifts
               ,
               being
               a
               meer
               Liberality
               ,
               are
               not
               presumed
               ;
               and
               
               therefore
               by
               
                 Our
                 Law
                 ,
                 Debitor
                 non
                 praesumitur
                 donare
                 quam
                 diu
                 est
                 debitor
                 :
              
               But
               this
               being
               onely
               a
               
                 praesumptio
                 Iuris
              
               ,
               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
               
               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
               
               that
               obligations
               do
               ;
               but
               yet
               ,
               if
               the
               obligation
               was
               satisfied
               ,
               
                 via
                 facti
              
               ,
               as
               by
               intromission
               with
               Rents
               of
               Lands
               ,
               &c.
               it
               is
               probable
               by
               Witnesses
               ,
               as
               all
               Facts
               are
               .
            
             
               Discharges
               ,
               are
               either
               
                 general
                 of
                 all
                 that
                 Parties
                 can
                 ask
                 ,
                 or
              
               
               claim
               ;
               Or
               
                 particular
                 ,
                 of
                 one
                 particular
                 thing
                 or
                 subject
                 :
              
               And
               in
               
                 general
                 Discharges
              
               ,
               if
               any
               particular
               thing
               be
               expresly
               discharged
               therein
               ,
               the
               
                 general
                 clause
              
               will
               be
               extended
               to
               particulars
               of
               no
               greater
               importance
               ,
               than
               what
               is
               expresly
               discharged
               .
            
             
               Discharges
               do
               ordinarly
               bear
               a
               
               clause
               ,
               
                 discharging
                 all
                 preceedings
                 till
                 their
                 date
              
               ;
               and
               albeit
               they
               do
               not
               ,
               yet
               three
               
                 consecutive
                 discharges
              
               ,
               do
               presume
               ,
               that
               all
               bygones
               are
               satisfied
               ,
               if
               they
               be
               immediately
               
               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
               inferr
               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
                 Rent
              
               ;
               so
               that
               
                 partial
                 Receipts
              
               ,
               albeit
               they
               extend
               
               to
               more
               than
               the
               years
               Rent
               ,
               will
               not
               presume
               ,
               
                 that
                 all
                 preceedings
                 are
                 payed
              
               ;
               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
               
               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
               Procuratorie
               was
               revocked
               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
               
                 truely
                 performed
              
               ,
               and
               
               has
               the
               effects
               and
               all
               the
               
                 priviledges
                 of
                 payment
              
               .
            
             
               Secundo
               ,
               by
               compensation
               ,
               whereby
               if
               the
               Creditor
               of
               a
               
               
                 liquid
                 sum
              
               ,
               become
               Debitor
               to
               his
               Debitor
               ,
               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
               
               the
               Debitor
               be
               changed
               ,
               it
               is
               called
               delegation
               .
            
             
               Innovation
               is
               never
               presumed
               
               except
               it
               be
               
                 expresly
                 mentioned
              
               ,
               or
               that
               the
               obligation
               bears
               expresly
               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
               Debitor
               succeeds
               to
               
               the
               Creditor
               ,
               or
               the
               Creditor
               to
               the
               Debitor
               ;
               or
               a
               Stranger
               to
               both
               ;
               and
               the
               reason
               of
               the
               Extinction
               in
               these
               cases
               ,
               is
               ,
               because
               the
               same
               Person
               cannot
               be
               both
               Debitor
               and
               Creditor
               .
            
          
           
             
             
               Title
               V.
               Of
               ASSIGNATIONS
               .
            
             
               ALL
               Rights
               ,
               whether
               
               Heritable
               or
               Moveable
               ,
               are
               transmissiable
               by
               Assignation
               ;
               but
               if
               a
               Seasin
               once
               be
               taken
               ,
               the
               Right
               is
               not
               Transmissable
               by
               an
               Assignation
               ,
               but
               by
               a
               Disposition
               ;
               except
               Liferents
               ,
               which
               are
               Transmissable
               by
               Assignation
               even
               after
               Seasin
               ;
               because
               they
               can
               admit
               of
               no
               subaltern
               
               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
               compleated
               by
               Intimation
               ;
               and
               therefore
               in
               competition
               betwixt
               diverse
               assignays
               ,
               the
               first
               intimation
               is
               alwayes
               preferred
               ;
               This
               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
               Debitor
               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
               pursute
               or
               
                 charge
                 of
                 horning
              
               upon
               the
               
                 Action
                 assigned
              
               ,
               has
               likewayes
               the
               force
               and
               effect
               of
               an
               intimation
               ;
               but
               an
               Inhibition
               against
               the
               Cedent
               upon
               the
               assignation
               ,
               will
               not
               
                 supply
                 intimation
              
               .
            
             
               The
               Debitors
               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
               
                 writting
                 a
                 letter
              
               promissing
               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
               past
               ,
               and
               expede
               publictly
               .
            
             
               A
               
                 Blank
                 Band
              
               is
               equivalent
               to
               an
               assignation
               ;
               and
               so
               
               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
                 moe
                 Creditors
                 ,
                 the
                 first
                 compleat
                 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
               
               
                 Moveable
                 Rights
              
               ,
               are
               Arrestment
               ,
               which
               answers
               to
               Inhibition
               in
               Heritage
               ,
               and
               poynding
               which
               answers
               to
               Comprising
               in
               Heritage
               .
            
             
               Arrestment
               is
               the
               
                 cammand
                 of
                 a
                 Iudge
                 ,
                 discharging
                 any
              
               
               
                 Person
                 in
                 whose
                 hands
                 the
                 Debitors
                 Moveables
                 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
               Iudge
               in
               whose
               Territories
               the
               goods
               are
               ;
               or
               by
               the
               
                 Lords
                 of
                 the
                 Session
              
               wherever
               they
               lye
               ,
               and
               that
               by
               
                 special
                 letters
                 of
                 Arrestment
              
               ;
               or
               by
               a
               warrand
               exprest
               in
               the
               
                 ordinarie
                 letters
                 of
                 horning
              
               :
               these
               letters
               are
               execute
               by
               a
               Messenger
               ,
               and
               if
               after
               it
               is
               laid
               on
               the
               partie
               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
               Moveables
               and
               their
               persons
               to
               be
               in
               the
               
                 Kings
                 will
              
               *
               .
            
             
               Arrestment
               can
               only
               affect
               
               
                 moveable
                 sums
              
               ,
               and
               the
               ground
               thereof
               must
               be
               for
               payment
               of
               
                 moveable
                 debts
              
               ,
               or
               sums
               due
               on
               
                 Heritable
                 security
              
               ,
               if
               no
               infeftment
               has
               followed
               *
               ,
               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
               loosing
               of
               Arrestment
               ,
               which
               passes
               upon
               a
               
                 Common
                 Bill
              
               ,
               and
               a
               
                 Band
                 of
                 Cautionry
              
               is
               given
               to
               the
               
                 Clerk
                 of
                 the
                 Bills
              
               *
               ,
               wherein
               the
               Granter
               of
               the
               band
               obliges
               himself
               to
               pay
               the
               sum
               ,
               if
               the
               Arrestment
               be
               found
               lawful
               ,
               and
               the
               
                 sums
                 or
                 goods
                 decerned
              
               ,
               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
               libell
               or
               summonds
               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
               lifetime
               of
               him
               in
               whose
               hands
               the
               Arrestment
               is
               made
               ;
               except
               it
               be
               renewed
               against
               his
               Successors
               ;
               but
               it
               dyes
               not
               with
               him
               in
               whose
               favours
               it
               was
               raised
               ,
               nor
               with
               him
               for
               whose
               debt
               it
               was
               
               laid
               on
               ;
               and
               if
               the
               debt
               be
               not
               liquid
               ,
               the
               
                 Debitors
                 representative
              
               
               must
               be
               called
               to
               the
               Liquidation
               .
            
             
               In
               the
               Competition
               amongst
               moe
               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
               compleated
               by
               the
               sentence
               to
               make
               forth-coming
               ;
               and
               yet
               if
               the
               Arrester
               did
               
                 exact
                 dligence
              
               to
               obtain
               a
               Decreet
               ;
               his
               raising
               the
               first
               pursute
               ,
               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
               
                 Kings
                 pensions
              
               and
               gratuities
               
               aliments
               cannot
               be
               arrested
               ;
               because
               they
               are
               given
               for
               a
               
                 particular
                 and
                 favourable
                 use
              
               ;
               and
               not
               applicable
               to
               the
               Arrester
               .
            
             
               Poynding
               may
               be
               likewise
               used
               against
               moveables
               ,
               by
               
               
                 vertue
                 of
                 letters
                 of
                 horning
              
               against
               the
               Debitors
               ;
               containing
               poinding
               or
               any
               other
               inferiour
               Iudge
               ,
               his
               Decreet
               or
               precept
               *
               which
               is
               done
               by
               a
               Messenger
               after
               the
               dayes
               of
               the
               charge
               are
               expired
               *
               ,
               the
               form
               thereof
               is
               ;
               The
               Messenger
               after
               poynding
               the
               goods
               ,
               apprises
               them
               upon
               the
               ground
               where
               he
               apprehends
               them
               ;
               and
               offers
               them
               to
               the
               Debitor
               ,
               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
               Iurisdiction
               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
               Debitor
               ;
               then
               the
               Messenger
               must
               deliver
               them
               to
               that
               Party
               ,
               else
               he
               is
               lyable
               in
               a
               spulzie
               .
            
             
               Poynding
               ,
               is
               a
               
                 judicial
                 sentence
              
               ,
               and
               the
               
                 Messenger
                 is
                 Iudge
                 constitute
                 by
                 the
                 letters
              
               ;
               the
               
                 Messenger
                 writes
                 likewise
                 an
                 execution
                 of
                 poynding
              
               and
               that
               execution
               is
               better
               believed
               than
               any
               who
               offers
               to
               prove
               the
               contrare
               ;
               for
               that
               execution
               is
               onely
               quarrelable
               by
               improbation
               .
            
             
               Arrestment
               ,
               being
               but
               an
               
                 inchoat
                 diligence
              
               ,
               discharging
               the
               Partie
               in
               whose
               hand
               the
               Arrestment
               is
               made
               ,
               to
               pay
               ,
               the
               right
               to
               the
               
                 goods
                 arrested
              
               ,
               remain
               
               still
               in
               the
               Debitor
               ,
               and
               may
               be
               
                 poynded
                 for
                 his
                 debt
              
               ;
               for
               
                 poynding
                 is
                 a
                 compleat
                 diligence
                 ▪
              
               giving
               an
               absolute
               right
               to
               the
               
                 goods
                 poynded
              
               .
            
             
               Labouring
               Oxen
               ,
               or
               other
               
                 Plough
                 Goods
              
               cannot
               be
               poynded
               
               in
               time
               of
               labouring
               (
               least
               labouring
               should
               be
               otherwayes
               discouraged
               ;
               )
               except
               there
               be
               no
               other
               Moveables
               upon
               the
               ground
               to
               be
               poinded
               *
               .
            
          
           
             
             
               Title
               VI.
               Of
               PRESCRIPTIONS
            
             
               PRescription
               being
               a
               way
               
                 of
                 evacuating
              
               and
               annulling
               both
               Heritable
               ,
               and
               
                 Moveable
                 Rights
              
               comes
               
               in
               here
               ,
               after
               both
               these
               are
               explained
               .
            
             
               Prescription
               is
               defined
               ,
               an
               
                 Acquisition
                 of
                 Propertie
                 by
                 the
                 Poss●ssors
                 continuing
                 his
                 possession
                 for
                 such
                 time
                 as
                 the
                 Law
                 determines
              
               ;
               Which
               was
               introduced
               not
               onely
               for
               punishing
               the
               
                 negligence
                 of
                 the
                 〈◊〉
              
               ,
               who
               owned
               not
               his
               Right
               for
               so
               many
               years
               ;
               But
               likewayes
               ,
               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
                 ,
                 &c.
              
               )
               and
               all
               Actions
               depending
               upon
               them
               ,
               or
               relating
               
               to
               them
               ,
               prescrive
               with
               us
               in
               40.
               years
               ;
               if
               the
               Possessor
               being
               a
               
                 singular
                 Successor
              
               ,
               have
               a
               
                 Chartor
                 ,
                 Disposition
              
               ,
               or
               Precept
               ,
               and
               Seasin
               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
               Seasin
               alone
               ,
               it
               being
               onely
               the
               
                 assertion
                 of
                 a
                 Notar.
              
               But
               Reversions
               which
               are
               in
               the
               body
               of
               the
               
                 Poss●ssors
                 right
              
               ;
               or
               reversions
               
               duely
               Registrated
               ,
               prescrive
               not
               .
            
             
               All
               
                 Personal
                 Rights
              
               ,
               and
               Actions
               relating
               to
               them
               ,
               prescrive
               likewayes
               in
               40.
               years
               ;
               If
               a
               
               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
              
               *
               .
            
             
               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
               publick
               ;
               nor
               yet
               things
               stol●e
               ,
               or
               
                 robbed
                 ,
                 Ob
                 vitium
                 reale
              
               ,
               which
               affects
               such
               things
               .
            
             
               
                 Actions
                 of
                 Spulzie
              
               ,
               and
               
                 Ej●cti
                 on
              
               ,
               prescrive
               in
               three
               years
               ,
               after
               committing
               thereof
               ;
               as
               to
               the
               specialities
               of
               these
               Actions
               ,
               viz.
               the
               violent
               profits
               ,
               
               and
               
                 Oath
                 in
                 litem
              
               ;
               But
               Minors
               have
               three
               years
               after
               their
               Majority
               *
               .
            
             
               As
               do
               also
               Actions
               for
               
                 Servants
                 Fies
                 ,
                 House
                 meals
              
               ,
               and
               
                 Marchant
                 compts
              
               ;
               except
               they
               can
               be
               proven
               after
               these
               three
               years
               ,
               by
               the
               
                 Debitors
                 oath
              
               *
               :
               And
               removings
               ,
               if
               Action
               be
               not
               intended
               within
               three
               years
               after
               the
               warning
               *
               .
            
             
               If
               Assysers
               err
               in
               serving
               a
               man
               
                 wrongously
                 Heir
              
               to
               his
               Predecessor
               ,
               the
               Retour
               may
               be
               
               quarrelled
               within
               20
               years
               ;
               but
               the
               Assysers
               themselves
               can
               only
               be
               
                 pursued
                 for
                 error
              
               ,
               within
               three
               years
               *
               ,
               but
               the
               
                 right
                 of
                 blood
              
               it self
               never
               prescrives
               ;
               and
               therefore
               a
               man
               may
               be
               
                 served
                 H●ir
                 to
                 his
                 Father
                 or
                 Grand-Father
                 ,
              
               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
               ,
               
               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
               tryed
               by
               an
               
                 inquest
                 of
                 the
                 Shire
                 ,
                 where
                 the
                 land
                 lyes
              
               *
               .
            
             
               Arrestments
               on
               Decreets
               and
               
                 depending
                 actions
              
               prescrive
               within
               five
               years
               after
               sentence
               .
            
             
               Meals
               and
               Duties
               due
               by
               
                 Tennents
                 prescrive
              
               ,
               if
               not
               persued
               within
               five
               years
               ,
               after
               the
               Tennents
               removing
               ;
               
                 Ministers
                 stipends
              
               ,
               and
               multurs
               pres●rive
               so
               that
               they
               cannot
               be
               
                 pursued
                 after
                 five
                 years
              
               ,
               except
               they
               be
               proven
               
               by
               the
               
                 Debitors
                 oath
              
               .
            
             
               
                 Holograph
                 Bands
              
               ;
               and
               subscriptions
               in
               
                 compt
                 books
              
               ,
               prescrive
               in
               
                 twenty
                 years
              
               ;
               except
               they
               be
               proven
               by
               the
               
                 debitors
                 oath
              
               .
            
             
               And
               lastly
               ,
               all
               bargans
               probable
               by
               witnesses
               ,
               all
               actions
               on
               
                 warnings
                 ,
                 spulzies
                 ,
                 ejections
                 ,
                 Arrestments
                 ,
                 Ministers
                 stipends
                 ,
              
               &c.
               prescrive
               within
               
                 ten
                 years
              
               ;
               unless
               wakned
               every
               five
               years
               ;
               but
               this
               alters
               not
               any
               shorter
               prescriptions
               of
               these
               actions
               *
               .
            
             
               All
               these
               prescriptions
               run
               
                 de
                 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
               *
               ;
               because
               no
               man
               is
               lyable
               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
                 Superiours
              
               ;
               because
               the
               
                 Vassals
                 right
              
               acknowledges
               the
               Superiours
               ;
               nor
               can
               
                 Laicks
                 prescrive
                 a
                 right
                 to
                 ●●ynds
              
               being
               incapable
               of
               such
               rights
               after
               the
               
                 Lateran
                 Council
              
               ;
               but
               though
               
               the
               
                 right
                 it self
                 prescrives
              
               ,
               in
               neither
               of
               these
               cases
               ,
               yet
               the
               bygons
               due
               by
               vertue
               of
               these
               
                 rights
                 before
                 fourty
                 years
              
               ,
               may
               prescrive
               .
            
             
               Prescription
               runs
               against
               the
               
                 Kirk
                 ,
                 and
                 Mortifications
              
               ;
               but
               on
               the
               other
               hand
               ,
               because
               
               
                 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
               showen
               ,
               by
               which
               it
               may
               be
               excluded
               ;
               
                 for
                 praesumptio
                 caedit
                 veritati
              
               .
            
             
               Prescriptions
               run
               likewayes
               against
               the
               King
               ;
               except
               as
               to
               His
               
                 Majesties
                 annext
                 propertie
              
               ;
               or
               to
               his
               
                 unannext
                 propertie
              
               whereof
               the
               
                 ferms
                 ,
                 duties
              
               or
               
               
                 feu
                 ferms
              
               ,
               have
               been
               compted
               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
               
               a
               
                 charge
                 raised
                 within
                 the
                 years
                 of
                 the
                 prescription
              
               ;
               though
               the
               citation
               was
               only
               on
               the
               first
               Summonds
               ;
               and
               though
               the
               Summonds
               was
               past
               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
              
               *
               ;
               and
               that
               the
               
                 Execution
                 be
                 signed
                 by
                 the
                 Messenger
              
               and
               witnesses
               *
               .
            
             
               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
               Barrony
               ,
               he
               interrupts
               prescription
               ,
               as
               to
               the
               whole
               Barrony
               .
            
          
           
             
               Title
               VII
               .
               Of
               Succession
               in
               Heritable
               Rights
               .
            
             
               HAving
               formerly
               shewed
               how
               Rights
               whether
               Heritable
               ,
               or
               
                 Moveable
                 ,
                 Real
              
               ,
               or
               Personal
               ,
               are
               constitute
               ,
               and
               how
               they
               are
               transmitted
               to
               singular
               Successours
               :
               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
               
               in
               the
               construction
               of
               Law
               ,
               
                 one
                 and
                 the
                 same
                 person
                 with
                 the
                 Defunct
                 .
              
            
             
               Though
               the
               Executor
               ,
               be
               in
               effect
               the
               Heir
               in
               
                 moveable
                 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
               .
               
            
             
               The
               first
               ,
               and
               chief
               kind
               of
               Heirs
               ,
               are
               the
               
                 Heirs
                 of
                 lyne
              
               ,
               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
               onely
               Sisters
               ,
               they
               succeed
               all
               equally
               .
            
             
               The
               next
               degree
               ,
               is
               
                 Grand
                 Children
              
               ,
               and
               their
               great
               Grand
               
               
                 Children
                 ,
                 &c.
              
               who
               succeed
               all
               in
               the
               same
               way
               .
            
             
               If
               there
               be
               no
               Descendants
               ,
               then
               Collaterals
               succeed
               ,
               in
               which
               ,
               the
               first
               degree
               is
               Brothers
               ,
               and
               
                 Sisters
                 German
              
               ,
               for
               the
               
                 whole
                 blood
                 excludes
                 the
                 half
                 blood
              
               ;
               and
               Brothers
               the
               Sisters
               ;
               
               and
               Brothers
               by
               the
               
                 Fathers
                 side
              
               exclude
               Brothers
               by
               the
               
                 Mothers
                 side
              
               ;
               there
               being
               no
               Succession
               with
               us
               by
               the
               
                 Mothers
                 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
                 ,
                 &c.
              
               and
               failing
               of
               Ascendants
               in
               the
               
                 right
                 ●ine
              
               ,
               the
               
                 Collateral
                 Ascendants
              
               succeed
               in
               the
               same
               way
               ,
               and
               thus
               the
               
                 Fathers
                 Brother
              
               ;
               or
               if
               there
               be
               no
               Brothers
               ,
               the
               
                 Fathers
                 Sister
              
               secludes
               the
               
                 Grand
                 Fathers
                 Brothers
              
               ,
               or
               
                 Sisters
                 ,
                 &c.
              
               
            
             
               It
               is
               to
               be
               observed
               that
               in
               Heritage
               ,
               there
               is
               a
               
                 Right
                 of
                 Representation
              
               ,
               whereby
               the
               Descendants
               
               exclude
               still
               the
               Collaterals
               ;
               though
               nearer
               by
               many
               Degrees
               to
               the
               Stock
               ,
               or
               
                 comunis
                 stipes
              
               ;
               And
               thus
               the
               
               
                 great
                 Grand-Child
              
               of
               the
               eldest
               Son
               secludes
               the
               second
               Brother
               ;
               because
               ,
               he
               comes
               in
               place
               of
               ,
               and
               so
               represents
               the
               elder
               Brother
               ,
               his
               
                 great
                 Grand-Father
              
               .
            
             
               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
               
               all
               other
               Moveables
               ;
               if
               there
               be
               pairs
               ,
               or
               dozens
               ,
               he
               gets
               the
               best
               pair
               or
               dozen
               ;
               but
               in
               others
               he
               gets
               onely
               
                 one
                 single
                 thing
              
               ;
               None
               have
               right
               to
               
                 Heirship
                 moveables
              
               ,
               but
               the
               
                 Heirs
                 of
                 Prelates
              
               ,
               under
               which
               are
               comprehended
               all
               
                 Benefice●
                 Persons
              
               ,
               the
               
                 Heirs
                 of
                 Barrons
              
               ,
               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
               
                 honorarie
                 Burgesses
              
               .
            
             
               If
               the
               Defunct
               had
               any
               Lands
               ,
               
               or
               
                 Heritable
                 Rights
              
               ,
               to
               which
               he
               could
               not
               succeed
               as
               
                 Heir
                 of
                 Line
              
               ,
               then
               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
               midle
               
                 of
                 three
                 brothers
                 dyes
              
               ,
               his
               immediate
               elder
               brother
               would
               be
               his
               
                 Heir
                 of
                 conquest
              
               ;
               and
               if
               a
               Son
               of
               a
               
                 second
                 Marriage
              
               dyes
               ,
               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
               
               did
               or
               might
               follow
               ,
               but
               they
               have
               no
               right
               to
               
                 tacks
                 ,
                 pensions
                 ,
                 moveable
                 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
               
               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
                 ,
                 tailer
                 ,
                 to
                 cut
                 ,
              
               and
               the
               matter
               of
               tailzies
               may
               be
               Summond
               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
               my self
               ,
               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
               my self
               ,
               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
               Fiar
               ;
               as
               for
               instance
               ,
               
                 If
                 I
                 take
                 my
                 lands
                 to
              
               Seius
               ,
               and
               
                 failing
                 him
                 to
              
               Caius
               ,
               
                 and
                 his
                 Heirs
                 ;
                 Caius
              
               is
               Fiar
               ,
               and
               Seius
               is
               onely
               Liferenter
               .
            
             
               Tertio
               ,
               Though
               the
               last
               termination
               fall
               on
               the
               
                 Wifes
                 Heirs
              
               ,
               the
               Husband
               remains
               Fiar
               ;
               because
               of
               the
               
                 prerogative
                 of
                 the
                 Sex
              
               ;
               as
               for
               instance
               ,
               
                 If
                 I
                 take
                 my
                 land
                 to
                 my self
                 ,
                 and
                 my
                 Wife
                 ,
                 which
                 failing
                 to
                 her
                 heirs
                 ,
                 my
                 heirs
                 would
                 be
                 preferred
              
               ;
               except
               the
               estate
               belonged
               to
               my
               Wife
               as
               Fiar
               ;
               For
               then
               her
               heirs
               would
               be
               preferred
               .
            
             
               Quarto
               ,
               Though
               in
               
                 Conjunct-Fie
                 Rights
              
               ,
               if
               I
               take
               my
               lands
               to
               my self
               ,
               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
               Fiar
               may
               dispone
               ;
               nor
               can
               the
               substitutes
               ,
               or
               
                 remoter
                 members
              
               of
               the
               Tailzie
               ,
               hinder
               him
               by
               
                 Action
                 ,
                 Inhibition
              
               ,
               or
               otherwayes
               ;
               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
               tyes
               him
               onely
               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
               truely
               due
               ,
               and
               not
               dolose
               contracted
               ,
               to
               disappoint
               the
               tailzie
               .
               
            
             
               
                 Heirs
                 of
                 Provision
              
               ,
               are
               these
               who
               succeed
               by
               vertue
               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
              
               ;
               tho
               he
               may
               provide
               a
               Ioynter
               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
               procreat
               ,
               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
               fulfill
               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
               
               rest
               ,
               and
               having
               no
               advantage
               over
               him
               ;
               but
               where
               the
               Rights
               are
               indivisible
               ,
               such
               as
               
                 Titles
                 ,
                 Iurisdictions
                 ,
                 Superiorities
              
               ,
               and
               all
               the
               
                 casualities
                 of
                 these
                 superiorities
              
               :
               such
               as
               
                 Ward
                 ▪
                 Marriage
                 ,
                 Nonentrie
                 ,
                 Feu
                 duties
                 ,
                 &c.
              
               these
               fall
               to
               the
               eldest
               
                 heir
                 Female
              
               ,
               without
               division
               ;
               together
               with
               the
               Principle
               Messuage
               ,
               it
               being
               a
               Tower
               ,
               or
               Fortalice
               ;
               for
               other
               houses
               are
               divided
               equally
               .
            
             
               All
               these
               Heirs
               are
               lyable
               
                 in
                 solidum
              
               ,
               if
               they
               once
               enter
               Heir
               ;
               except
               
                 heirs
                 portioners
              
               ,
               who
               are
               onely
               lyable
               
                 pro
                 rata
              
               ,
               and
               
                 heirs
                 substitute
              
               in
               a
               sum
               ,
               
               who
               are
               onely
               lyable
               to
               Creditors
               ,
               in
               the
               
                 value
                 of
                 the
                 sum
              
               ,
               to
               which
               they
               are
               substitute
               ;
               But
               they
               have
               in
               SCOTLAND
               a
               Priviledge
               which
               they
               call
               ,
               
                 the
                 benefit
                 of
                 Discussion
              
               ,
               whereby
               
               the
               
                 Heirs
                 of
                 Line
              
               must
               be
               first
               pursued
               ,
               to
               
                 fulfill
                 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
               
               lyable
               to
               be
               Heir
               ,
               is
               said
               to
               be
               
                 Heir
                 passive
              
               ;
               As
               when
               the
               
                 appearand
                 Heir
                 is
                 infeft
              
               upon
               a
               precept
               of
               
                 clare
                 constat
              
               by
               the
               Superiour
               ,
               or
               otherwise
               medles
               with
               his
               
                 Fathers
                 Estate
              
               .
            
             
               When
               the
               
                 Predecessor
                 dyes
              
               ,
               he
               who
               should
               be
               Heir
               ,
               (
               and
               
               therefore
               is
               called
               ,
               
                 appearand
                 Heir
              
               ,
               )
               has
               year
               and
               day
               allowed
               him
               to
               deliberate
               
                 whether
                 he
                 will
                 be
                 Heir
              
               ,
               which
               is
               called
               ,
               
                 annus
                 deliberandi
              
               *
               ;
               and
               which
               is
               indulged
               by
               the
               Law
               ;
               because
               if
               a
               man
               enter
               once
               Heir
               ,
               he
               is
               lyable
               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
                 expyred
              
               ,
               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
               compted
               from
               the
               
                 defuncts
                 death
              
               ;
               except
               in
               a
               
                 posthum
                 child
              
               ,
               who
               has
               a
               year
               
               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
               Chancellarie
               ;
               which
               
                 Brief
                 is
                 a
                 command
                 from
                 the
                 King.
              
               to
               the
               
                 Iudge
                 ordinary
              
               ,
               where
               the
               lands
               ly
               ,
               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
               lye
               ;
               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
               Chancellarie
               ;
               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
               
                 Chancellarie
                 of
                 the
                 points
              
               contained
               in
               the
               brief
               ;
               and
               thereafter
               ,
               the
               person
               who
               is
               
                 served
                 heir
              
               is
               infeft
               by
               a
               precepts
               out
               
                 of
                 the
                 Chancellarie
              
               ;
               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
                 ,
                 Iurisdictions
                 ,
              
               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
               
               Defunct
               dyed
               at
               the
               
                 Kings
                 peace
              
               ;
               and
               if
               the
               raiser
               of
               the
               brief
               be
               the
               next
               Heir
               ;
               but
               the
               special
               
               brief
               ,
               has
               
                 seven
                 ,
                 viz.
              
               when
               the
               Defunct
               dyed
               .
               Secundo
               ,
               If
               he
               dyed
               last
               vest
               ,
               and
               seased
               ,
               at
               the
               
                 Kings
                 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
                 seasin
              
               from
               the
               Superiour
               ;
               wherein
               ,
               because
               the
               Superiour
               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
               lyable
               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
               Superiour
               who
               gave
               it
               .
            
             
               Bailiffs
               also
               of
               
                 Burghs
                 Royal
              
               ,
               do
               infeft
               their
               Burgesses
               as
               
                 heirs
                 in
                 Burgage
                 lands
              
               ,
               giving
               them
               seasin
               :
               as
               heirs
               ,
               by
               delivering
               them
               for
               a
               Symbole
               ,
               the
               hesp
               and
               
                 staple
                 of
                 the
                 doors
              
               ;
               and
               the
               
                 seasin
                 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
               
                 Iudge
                 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
               Superiour
               ,
               then
               either
               that
               Superiour
               is
               
                 himself
                 entered
              
               or
               not
               ;
               if
               he
               be
               entered
               ,
               he
               will
               be
               charged
               by
               
                 four
                 consequutive
                 Precepts
              
               ,
               to
               enter
               the
               Heir
               ;
               and
               if
               at
               last
               he
               disobey
               ,
               his
               immediate
               Superiour
               will
               be
               charged
               ,
               and
               so
               till
               the
               
                 heir
                 arrive
                 at
                 the
                 King
              
               who
               never
               refuses
               to
               enter
               any
               ;
               and
               if
               the
               Superiour
               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
               Casualities
               ;
               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
               lyable
               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
               Moveables
               ,
               which
               is
               called
               ▪
               
                 vitious
                 intromission
              
               .
               
            
             
               Behaving
               as
               heir
               ,
               or
               
                 Gestio
                 pro
                 haerede
              
               ,
               is
               when
               the
               person
               ,
               who
               might
               have
               been
               Heir
               ,
               
                 immixes
                 himself
              
               ,
               and
               intromets
               with
               either
               the
               
                 moveable
                 heirship
              
               ,
               or
               any
               
                 heritable
                 estate
              
               ,
               belonging
               to
               the
               Defunct
               ;
               in
               which
               case
               ,
               he
               is
               lyable
               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
               factorie
               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
               factorie
               ;
               it
               is
               not
               sufficient
               to
               alleadge
               the
               Defunct
               dyed
               Rebell
               ,
               and
               so
               could
               have
               no
               heir
               ;
               except
               his
               Escheate
               was
               declared
               before
               intenting
               the
               
                 pursuers
                 action
              
               ;
               nor
               will
               this
               
                 passive
                 title
              
               ,
               nor
               
                 vitious
                 intromission
              
               be
               sustained
               ;
               except
               they
               be
               pursued
               in
               the
               
                 intrometters
                 own
                 lifetime
              
               ,
               
               they
               being
               kinds
               of
               delicts
               .
            
             
               But
               he
               will
               not
               be
               lyable
               ,
               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
              
               
               
                 the
                 necessity
                 of
                 entring
                 heir
                 ;
                 and
                 so
                 being
                 lyable
                 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
               lyable
               to
               the
               
                 payment
                 of
                 all
                 the
                 Creditors
                 debt
              
               ;
               if
               the
               Right
               made
               ,
               as
               well
               as
               the
               infeftment
               ,
               was
               posterior
               to
               the
               
                 Creditors
                 lawfull
                 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
               onely
               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
               onely
               in
               heritage
               ;
               and
               therefore
               ,
               the
               
               
                 getting
                 a
                 right
              
               to
               
                 moveable
                 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
               lyable
               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
               lyable
               in
               these
               ,
               than
               
                 pro
                 rata
              
               ,
               if
               she
               had
               entered
               ;
               for
               the
               coppie
               
               should
               go
               no
               further
               than
               the
               original
               .
            
             
               To
               conclude
               ,
               the
               Succession
               
               
                 in
                 heritage
              
               ,
               it
               is
               ●it
               to
               know
               ,
               that
               by
               an
               
                 old
                 statute
              
               *
               and
               our
               
                 constant
                 practique
                 ,
                 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
               Moveable
               ,
               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
               Iudgement
               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
               dyed
               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
               fixt
               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
               Death-bed
               ;
               yet
               he
               may
               perfect
               an
               
                 old
                 right
              
               ;
               or
               do
               a
               deed
               to
               which
               he
               might
               have
               been
               otherwayes
               compelled
               ;
               as
               fo●
               payment
               of
               his
               debt
               ,
               or
               may
               grant
               a
               
                 rational
                 Ioynter
              
               to
               his
               Wife
               ;
               though
               he
               cannot
               grant
               provisions
               to
               his
               Children
               in
               that
               Condition
               .
            
          
           
             
             
               Title
               VIII
               .
               Of
               Succession
               in
               Moveables
               .
            
             
               THE
               same
               Rules
               are
               observed
               ,
               in
               the
               
                 Succession
                 of
                 Moveables
              
               ,
               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
               
                 Sisters
                 Children
              
               ,
               the
               Brothers
               and
               Sisters
               ,
               who
               are
               living
               
               will
               
                 succeed
                 equally
              
               ,
               excluding
               the
               
                 Children
                 of
                 the
                 Sister
              
               who
               is
               dead
               .
            
             
               The
               Executor
               ,
               is
               also
               onely
               lyable
               ,
               according
               to
               the
               
                 value
                 of
                 the
                 Defuncts
                 estate
              
               ;
               Because
               ,
               he
               gives
               up
               an
               
                 inventary
                 of
                 his
              
               
               goods
               ;
               but
               an
               Heir
               is
               lyable
               
                 for
                 all
                 the
                 Defuncts
                 debts
              
               .
            
             
               
                 A
                 Testament
              
               ,
               or
               
                 Latter
                 will
              
               ,
               does
               require
               to
               be
               in
               Write
               ,
               for
               
                 nuncupative
                 Testaments
              
               ,
               which
               
               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
               
                 leidge
                 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
                 payed
              
               
               
                 by
                 his
                 Executor
              
               ;
               But
               if
               the
               Legator
               die
               before
               the
               Testator
               ;
               or
               before
               the
               condition
               is
               fulfilled
               ,
               on
               which
               the
               
                 Legacy
                 was
                 left
              
               ,
               then
               the
               Legacy
               evanisheth
               ;
               
               and
               though
               neither
               other
               mens
               moveables
               ,
               nor
               a
               mans
               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
                 Moveables
                 ,
              
               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
                 Moveables
              
               ,
               
               
                 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
               
                 Mothers
                 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
               
               to
               the
               
                 immediat
                 Children
              
               ,
               but
               not
               to
               
                 Grand
                 Children
              
               .
            
             
               The
               Remander
               of
               the
               
                 Defuncts
                 Moveables
              
               ,
               beside
               what
               is
               due
               to
               the
               Relict
               ,
               and
               
               Children
               ,
               is
               called
               the
               
                 deads
                 part
              
               ;
               and
               upon
               that
               onely
               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
               ,
               
               or
               Bairns
               ,
               and
               not
               both
               ;
               then
               the
               
                 Defuncts
                 Testament
              
               receives
               a
               
                 bipartite
                 division
              
               ;
               but
               if
               there
               be
               both
               Wife
               and
               Bairns
               ,
               then
               it
               receives
               a
               
                 tri●artite
                 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
               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
               *
               ;
               but
               the
               Heir
               has
               no
               share
               in
               the
               Moveables
               ;
               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
              
               
               
                 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
               ,
               then
               the
               Commissar
               will
               make
               an
               
                 Executor
                 dative
              
               ;
               and
               ordinarly
               
               they
               prefer
               the
               nearest
               
                 of
                 kin
              
               ;
               but
               if
               the
               nearest
               
                 of
                 kin
              
               being
               charged
               ,
               will
               not
               confirme
               ,
               then
               they
               name
               their
               own
               
                 Procurator
                 Fiscal
                 Executor
              
               ;
               and
               if
               thereafter
               ,
               the
               
                 nearest
                 of
                 kin
              
               compear
               ,
               they
               use
               to
               
                 surrogat
                 him
              
               ,
               and
               this
               is
               called
               ,
               an
               
                 Executor
                 surrogat
              
               ;
               But
               no
               
                 Executor
                 Dative
              
               has
               a
               third
               of
               the
               
                 Defuncts
                 third
              
               ,
               as
               others
               have
               .
            
             
               A
               Creditor
               may
               confirm
               himself
               
                 Executor
                 Creditor
              
               ;
               and
               
               so
               may
               pursue
               the
               
                 Defuncts
                 Debitors
              
               ,
               and
               least
               that
               Creditors
               should
               wrong
               one
               another
               by
               
                 nimious
                 diligence
                 ,
                 Our
                 Law
              
               has
               appointed
               ,
               that
               all
               
               who
               shall
               confirm
               themselves
               
                 Executors
                 Creditors
              
               ,
               or
               shal
               do
               diligence
               against
               Executors
               ,
               or
               Intromitters
               *
               within
               6.
               
               Moneths
               one
               of
               another
               shall
               come
               in
               
                 pari
                 passie
              
               .
            
             
               
                 Executors
                 Creditors
              
               are
               onely
               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
               Moveables
               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
               onely
               lyable
               for
               the
               
                 Defuncts
                 debt
              
               ,
               in
               as
               far
               as
               the
               goods
               confirmed
               will
               extend
               .
            
             
             
               Executory
               being
               a
               meer
               Office
               ,
               it
               accresses
               to
               the
               Survivers
               ;
               if
               there
               be
               moe
               Executors
               ,
               and
               in
               so
               far
               as
               the
               Executors
               have
               not
               execute
               the
               Testament
               in
               their
               own
               Lifetime
               ;
               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
               onely
               has
               
                 power
                 of
                 Administration
              
               ;
               and
               the
               Creditors
               and
               Legators
               can
               
               onely
               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
               
               may
               himself
               pursue
               for
               his
               special
               Legacy
               ;
               but
               the
               Executor
               must
               be
               still
               called
               in
               the
               pursute
               ,
               to
               the
               end
               it
               may
               be
               known
               ,
               
                 whether
                 the
                 Debts
                 exhaust
                 the
                 special
                 Legacies
              
               ;
               For
               ,
               no
               Legacy
               can
               be
               payed
               ,
               till
               the
               Debts
               be
               payed
               ;
               and
               therefore
               ,
               if
               all
               the
               Legacies
               cannot
               be
               payed
               ,
               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
              
               ;
               otherwayes
               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
               Escheate
               ,
               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
               moe
               Executors
               ,
               whom
               we
               call
               Co-Executors
               ;
               
               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
               concurr
               ,
               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
               lyable
               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
               lyable
               to
               do
               diligence
               for
               recovering
               the
               
               debts
               due
               to
               the
               Defunct
               ;
               and
               the
               diligence
               required
               upon
               his
               part
               ,
               is
               a
               sentence
               ,
               and
               
                 Registrated
                 horning
                 against
                 the
                 defuncts
                 debitors
              
               ;
               but
               if
               there
               be
               an
               universal
               ,
               or
               
                 special
                 legatar
              
               ,
               whereby
               an
               
                 Executor
                 confirmed
              
               
               has
               no
               advantage
               ;
               then
               the
               Executor
               is
               not
               lyable
               in
               diligence
               ;
               but
               only
               to
               assign
               the
               Creditors
               that
               they
               themselves
               may
               pursue
               .
            
             
               The
               Executor
               likewise
               cannot
               
                 pay
                 any
                 debt
              
               without
               sentence
               ,
               least
               otherwayes
               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
               payed
               before
               the
               
                 Creditors
                 intent
                 a
                 persute
              
               ;
               or
               these
               
               which
               we
               call
               
                 priviledged
                 debts
              
               ;
               because
               they
               are
               preferred
               to
               all
               others
               ,
               
                 viz.
                 servants
                 fies
                 ,
                 medicaments
              
               on
               
                 death-bed
                 ,
                 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
               necessar
               to
               have
               
               such
               a
               decreet
               when
               they
               are
               pursued
               before
               the
               Lords
               ,
               for
               it
               is
               sufficient
               when
               they
               are
               pursued
               there
               to
               alledge
               ,
               
                 that
                 they
                 are
                 exhausted
                 by
                 way
                 of
                 Exception
                 .
              
            
             
               If
               any
               Person
               intromit
               with
               the
               
                 Defuncts
                 moveables
              
               ,
               without
               being
               confirmed
               ,
               they
               are
               lyable
               to
               the
               
                 Defuncts
                 whole
              
               
               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
                 ,
                 &c.
              
               
               But
               if
               the
               
                 intromitter
                 confirme
              
               ,
               before
               any
               Action
               be
               intented
               ,
               this
               purges
               the
               
                 Vitious
                 intromission
              
               ;
               and
               the
               intromitter
               is
               only
               lyable
               for
               the
               
                 value
                 of
                 the
                 thing
                 intromitted
                 with
              
               ;
               or
               if
               there
               be
               an
               
                 Executor
                 confirmed
              
               ,
               no
               Person
               can
               be
               pursued
               as
               
                 Vitious
                 Intromitter
              
               ;
               for
               the
               Intromitter
               then
               is
               only
               lyable
               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
               necessar
               Intromission
               infer
               vitiositie
               ,
               and
               that
               is
               called
               ,
               
                 necessar
                 intromission
              
               ,
               
               when
               either
               the
               Husband
               or
               the
               Wife
               ,
               continue
               their
               possession
               of
               one
               anothers
               Goods
               ,
               after
               one
               anothers
               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
               
                 vitious
                 Intromitters
              
               ,
               they
               are
               each
               lyable
               
                 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
               
               is
               bound
               to
               
                 relieve
                 the
                 Heir
                 ,
                 of
                 all
                 moveable
                 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
                 contingencie
                 of
                 blood
                 to
                 the
                 Defunct
                 ,
              
               they
               succeed
               to
               him
               ;
               but
               if
               there
               be
               none
               ,
               the
               King
               succeeds
               as
               last
               
               Heir
               ;
               for
               
                 quod
                 nullius
                 est
                 ,
                 est
                 Domini
                 Regis
              
               ;
               and
               so
               the
               King
               succeeds
               to
               the
               Defunct
               ,
               as
               last
               Heir
               ;
               both
               in
               Heritage
               and
               Moveables
               ;
               and
               is
               preferred
               to
               all
               Superiours
               ,
               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
               dyed
               ,
               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
               ordinarly
               in
               their
               
                 tailzies
                 adject
              
               the
               Clause
               
                 whilks
                 failzing
              
               to
               their
               
                 Heirs
                 whatsomeever
              
               .
            
             
               Because
               the
               King
               succeeds
               here
               as
               Heir
               ;
               therefore
               he
               is
               lyable
               to
               pay
               the
               
                 Defuncts
                 debts
              
               ;
               but
               he
               is
               only
               lyable
               as
               farr
               
               as
               the
               
                 Estate
                 will
                 extend
              
               ;
               and
               therefore
               the
               Creditors
               may
               adjudge
               the
               
                 Real
                 Estate
              
               ,
               and
               serve
               themselves
               
                 Executors
                 Creditors
              
               in
               the
               Moveables
               .
            
             
               A
               Bastard
               by
               
                 Our
                 Law
              
               has
               neither
               
               Heirs
               nor
               Executors
               ;
               but
               yet
               he
               may
               dispone
               upon
               either
               his
               
                 Heritage
                 or
                 Moveables
                 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
               
                 Bastards
                 Children
              
               will
               allwayes
               
                 seclude
                 the
                 King.
              
               
            
             
               The
               King
               in
               the
               case
               
                 of
                 Bastardy
              
               ,
               makes
               a
               Donatar
               ,
               who
               pursues
               Declarator
               ;
               and
               is
               lyable
               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
               Moveables
               ,
               as
               in
               other
               cases
               .
            
             
               Children
               procreate
               betwixt
               persons
               divorced
               ;
               and
               these
               with
               whom
               they
               have
               committed
               Adultery
               can
               not
               succeed
               to
               them
               *
               .
            
          
        
         
           
           
             The
             INSTITUTIONS
             of
             the
             LAWS
             of
             SCOTLAND
             .
          
           
             Part
             Fourth
             .
          
           
             
               Title
               I.
               Of
               ACTIONS
               .
            
             
               HAving
               finished
               these
               
               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
                 Iudgement
                 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
              
               
               
                 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
               onely
               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
               Tennents
               ,
               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
               ,
               
               
                 whereby
                 we
                 pu●sue
                 Rights
                 to
                 be
                 declared
                 null
                 ,
                 and
                 to
                 be
                 reduced
                 .
              
            
             
               In
               Improbations
               ,
               there
               are
               two
               Terms
               given
               to
               produce
               the
               Write
               ;
               because
               the
               danger
               is
               
               great
               ;
               And
               if
               the
               Writer
               and
               Witnesses
               of
               ,
               and
               in
               that
               Write
               be
               alive
               ,
               
                 their
                 testimonies
                 are
                 onely
                 allowed
                 as
                 probation
              
               ;
               which
               
               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
                 Im●robation
              
               :
               But
               because
               in
               Re●uctions
               ,
               the
               Write
               called
               for
               ,
               
               〈◊〉
               onely
               to
               be
               declared
               
                 null
                 ,
                 till
                 〈◊〉
                 be
                 produced
              
               ;
               therefore
               ,
               there
               ●s
               onely
               
                 one
                 terme
                 granted
                 for
                 pro●ucing
              
               .
            
             
               No
               certification
               will
               be
               gran●●d
               against
               any
               Writes
               ,
               made
               ●y
               the
               Pursuer
               and
               his
               Predeces●●rs
               and
               Authors
               ;
               except
               he
               be
               
                 ●●rved
                 heir
              
               to
               these
               Predecessors
               ,
               and
               
                 produce
                 a
                 right
                 made
                 by
                 these
              
               
               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
              
               ,
               whereb●
               
                 we
                 pursue
                 Rights
                 to
                 be
                 declar●●
                 null
                 as
                 granted
                 after
                 Inhibition
                 is
                 raised
                 by
                 us
              
               ;
               or
               
                 ex
                 capite
                 interdic●ionis
              
               if
               granted
               after
               Interdictio●
               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●
               lybell
               the
               Qualifications
               ,
               or
               Circumstances
               from
               which
               th●
               force
               or
               fraud
               are
               inferred
               or
               
                 ex
                 capite
                 lecti
              
               ,
               if
               the
               deed
               were
               done
               upon
               death-bed
               ,
               i●
               prejudice
               of
               an
               
                 appearand
                 Heir●
              
               or
               upon
               the
               
                 Act
                 of
                 Parliament
                 ▪
              
               1621
               *
               ,
               if
               the
               deeds
               were
               don●
               in
               
                 prejudice
                 of
                 prior
                 lawfull
                 Creditors
              
               ,
               in
               
                 favours
                 of
                 conjunct
              
               or
               
                 confident
                 person
              
               ;
               that
               is
               to
               say
               ▪
               Relations
               ,
               or
               Trusties
               ,
               without
               an
               
                 onerous
                 cause
              
               ,
               or
               to
               a
               Creditor●
               ,
               
               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
                 mens
                 Rights
              
               ,
               and
               are
               called
               extraordinary
               ;
               because
               they
               are
               never
               competent
               ,
               till
               other
               
                 ordinary
                 remedies
                 fail
              
               .
            
             
               Actions
               
                 of
                 Reprobatour
              
               ,
               and
               
               Errour
               are
               in
               effect
               Reductions
               ;
               and
               must
               have
               the
               concourse
               of
               the
               
                 Kings
                 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
               
                 fasly
                 ,
                 circa
                 initialia
                 testimoniorum
              
               ;
               
               and
               condescend
               in
               his
               
                 Reasons
                 of
                 Reduction
              
               ,
               up
               on
               the
               particulars
               wherei●
               they
               have
               deponed
               fasly
               ;
               and
               also
               concludes
               ,
               
                 that
                 the
                 testimonies
                 should
                 be
                 reprobated
                 .
              
            
             
               
                 In
                 the
                 summonds
                 of
                 Error
              
               ;
               the
               Pursuer
               craves
               ,
               
                 that
                 a
                 service
                 (
                 whereby
                 the
                 Defender
                 is
                 served
                 hei●
              
               
               
                 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
               summonds
               that
               is
               drawn
               in
               L●tine
               with
               us
               .
            
             
               Some
               Actions
               ,
               are
               called
               
               preparal●r●
               ,
               or
               prejudiciall
               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
               ,
               alledging
               the
               
                 write
                 to
                 be
                 false
              
               ;
               the
               tryal
               of
               the
               falshood
               ,
               must
               be
               first
               discussed
               ;
               and
               so
               is
               prejudicial
               to
               the
               
                 action
                 of
                 payment
              
               .
            
             
               Exhibitions
               conclude
               ,
               either
               meerly
               to
               exhibit
               the
               write
               ,
               or
               
               the
               thing
               called
               for
               ;
               and
               then
               it
               is
               only
               a
               
                 preparatory
                 action
              
               ;
               such
               as
               
                 exhibitions
                 ad
                 deliberandum
              
               ;
               or
               else
               they
               conclude
               delivery
               ;
               and
               in
               all
               Exhibitions
               ,
               the
               ordinar
               terms
               lybelled
               ,
               are
               that
               the
               
                 Defender
                 had
                 ,
                 has
                 ,
                 or
                 has
                 Fraudfully
                 put
                 away
                 the
                 papers
                 or
                 things
                 craved
                 to
                 be
                 exhibite
              
               ;
               and
               therefore
               ,
               he
               is
               not
               obliged
               to
               exhibite
               ,
               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
               
               equitie
               is
               followed
               ,
               as
               
                 Actions
                 upon
                 Mandates
                 ,
                 Depositations
                 ,
                 Emption
                 ,
                 Location
                 ,
                 &c.
                 
              
               In
               which
               the
               Iudge
               considers
               
               what
               in
               
                 equity
                 is
                 to
                 be
                 done
              
               by
               one
               party
               to
               another
               .
               And
               some
               actions
               are
               
                 stricti
                 juris
              
               ;
               in
               which
               the
               Iudge
               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
               
               pursue
               that
               
                 quod
                 patrimonio
                 nostro
                 abest
              
               ;
               which
               is
               commonly
               called
               ,
               
                 dammage
                 and
                 interest
              
               .
            
             
               Some
               are
               called
               ,
               
                 penal
                 actions
              
               ;
               because
               we
               
                 pursue
                 not
                 only
                 for
                 repetition
                 ,
                 and
                 real
                 dammage
                 ,
              
               
               
                 but
                 for
                 extraordinarie
                 dammages
                 ,
                 and
                 reparation
                 by
                 way
                 of
                 penalty
              
               ;
               such
               as
               are
               
                 spulzies
                 ,
                 Actions
                 for
                 violen●
                 Profits
                 ,
                 &c.
                 
              
            
             
               Some
               Actions
               ,
               are
               called
               
                 Arbitrary
                 Actions
                 ,
                 wherein
                 the
              
               
               
                 Iudge
                 is
                 tyed
                 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
               behooved
               to
               trust
               the
               Discretion
               and
               Honesty
               of
               the
               Iudge
               ,
               since
               all
               cases
               could
               not
               be
               Comprehended
               under
               known
               Laws
               ;
               it
               therefore
               invested
               the
               Iudge
               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
                 Iudex
                 nunquam
              
               
               
                 impertit
                 nisi
                 rogatus
              
               .
            
             
               Some
               Actions
               ,
               are
               called
               ,
               Declarators
               ;
               because
               the
               Pursuer
               concludes
               in
               them
               ,
               that
               some
               special
               thing
               
                 should
                 be
              
               
               
                 declared
                 in
                 his
                 Favours
              
               ;
               and
               ordinarly
               ,
               whereever
               the
               King
               ,
               or
               any
               other
               Superiour
               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
                 faln
                 in
                 the
                 Superiours
                 hands
                 ;
                 and
                 that
                 he
                 has
                 right
                 thereto
                 ,
                 by
                 vertue
                 of
                 the
                 gift
                 :
              
               And
               thus
               Declarators
               must
               be
               raised
               upon
               
                 Escheats
                 ,
                 Wards
                 ,
                 Marriages
                 ,
                 Nonentries
                 ,
                 &c.
              
               onely
               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
               summonds
               .
               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
               Superiours
               hands
               :
               And
               in
               the
               special
               ,
               he
               concludes
               ,
               
                 that
                 the
                 Tennents
                 of
                 the
                 Rebels
              
               lands
               ,
               whose
               Escheat
               is
               faln
               ,
               may
               pay
               him
               the
               Meals
               and
               Duties
               ,
               by
               
                 vertue
                 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
               :
               Lawiers
               doe
               now
               cause
               raise
               
                 Actions
                 of
                 Declarator
              
               ;
               or
               at
               least
               ,
               cause
               
               adject
               conclusions
               of
               Declarator
               to
               other
               Actions
               ,
               such
               as
               
                 Reductions
                 ,
                 &c.
              
               and
               these
               are
               the
               same
               with
               the
               
                 Actions
                 in
                 factum
              
               ,
               mentioned
               in
               the
               
                 Civil
                 Law.
              
               
            
             
               Some
               Actions
               are
               called
               Civil
               ,
               
               
                 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
               lybelled
               ;
               I
               shall
               shortly
               explain
               the
               
                 nature
                 of
                 a
                 summonds
              
               ;
               
               and
               shall
               set
               done
               some
               of
               those
               actions
               which
               have
               
                 special
                 names
              
               and
               conclusions
               .
            
             
               The
               chief
               parts
               of
               a
               summonds
               ,
               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
               Summonds
               ,
               and
               since
               it
               is
               a
               
                 Relevant
                 exception
              
               against
               a
               summonds
               ,
               that
               
                 all
                 Persons
                 having
                 interest
                 are
                 not
                 called
              
               ;
               Therefore
               it
               follows
               clearly
               ,
               that
               for
               the
               more
               securitie
               it
               is
               fit
               to
               call
               all
               Persons
               ,
               who
               may
               be
               concerned
               in
               the
               debate
               .
               
            
             
               Tertio
               ,
               The
               
                 medium
                 concludendi
              
               ;
               that
               is
               to
               say
               ,
               
                 the
                 ground
                 whereupon
                 the
                 Persons
                 called
                 ,
                 are
                 lyable
                 to
                 pay
                 and
                 perform
                 what
                 is
                 craved
                 .
              
            
             
               Quarto
               ,
               After
               all
               this
               is
               
               narrated
               ,
               the
               King
               in
               the
               Summonds
               ,
               says
               ,
               
                 Our
                 Will
                 is
                 ,
                 &c.
              
               that
               ye
               
                 cite
                 such
                 and
                 such
                 persons
                 ,
                 &c.
              
               which
               is
               called
               ,
               
                 the
                 will
                 of
                 the
                 Summonds
              
               ,
               and
               which
               will
               of
               the
               Summonds
               does
               comprehend
               ,
               a
               command
               to
               the
               Messenger
               ,
               to
               cite
               the
               Defenders
               ;
               
               and
               expresses
               the
               number
               
                 of
                 dayes
              
               ,
               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
               
               the
               pursuer
               ,
               each
               of
               which
               summonds
               ,
               almost
               has
               it
               own
               special
               Stile
               and
               Terms
               ;
               and
               by
               
                 Act
                 of
                 Parliament
                 ,
                 Writters
              
               are
               commanded
               not
               to
               alter
               the
               
                 Ancient
                 Stile
              
               *
            
             
               It
               is
               observable
               ,
               that
               though
               the
               
                 matter
                 of
                 fact
              
               be
               ordinarly
               narrated
               before
               the
               will
               of
               the
               summonds
               ;
               yet
               
                 Summonses
                 of
                 Reduction
                 ,
                 Improbation
                 ,
                 Transferrance
                 ,
                 Spulzie
                 ,
              
               and
               
                 Declarators
                 of
                 Nonentrie
              
               ;
               begin
               ,
               at
               ,
               
                 Our
                 Will
                 is
                 ,
                 &c.
              
               
               And
               then
               goes
               on
               to
               the
               interest
               of
               the
               pursuer
               ,
               &c.
               
            
             
             
               In
               a
               Summonds
               of
               Transumpt
               ,
               the
               Pursuer
               (
               who
               in
               the
               summonds
               is
               alwayes
               called
               the
               Complainer
               )
               lybells
               ,
               
                 that
                 he
                 has
              
               
               
                 Right
                 to
                 the
                 Lands
                 whereof
                 he
                 craves
                 the
                 papers
                 to
                 be
                 Transumed
              
               ;
               and
               that
               therefore
               it
               is
               necessar
               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
               
                 exhibite
                 ,
                 and
                 produce
                 them
              
               ,
               to
               be
               
                 judicially
                 Transumed
              
               ;
               and
               the
               
                 authentick
                 Transumpts
                 to
                 be
                 declared
                 as
                 sufficient
                 for
                 the
                 security
                 of
                 the
                 Pursuer
                 in
                 the
                 saids
                 lands
              
               as
               the
               
                 original
                 writes
              
               themselves
               .
            
             
               In
               a
               
                 Summonds
                 of
                 Multiple
              
               
               poinding
               ,
               the
               Complainer
               having
               narrated
               ,
               that
               he
               is
               
                 troubled
                 by
                 such
                 and
                 such
                 Persons
                 ,
              
               
               who
               do
               each
               of
               them
               
                 pretend
                 Right
              
               to
               a
               sum
               ,
               in
               which
               he
               is
               lyable
               ;
               he
               therefore
               concludes
               against
               all
               of
               them
               ,
               to
               compear
               to
               hear
               and
               
                 see
                 the
                 same
                 tryed
              
               ;
               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
               
                 Summonds
                 of
                 Transferrence
              
               ,
               the
               Complainer
               lybells
               
               that
               the
               
                 Defender
                 is
                 Heir
                 to
                 his
                 Debitor
                 :
              
               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
               
                 Summonds
                 of
                 Registration
              
               raised
               in
               which
               the
               pursuer
               concludes
               ,
               that
               the
               
                 said
                 Bond
              
               
               
                 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
               
                 Summonds
                 of
                 prevento
              
               ;
               The
               Complainer
               narrates
               ,
               
               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
                 coppie
                 ,
                 and
                 admit
                 Protestation
                 therein
                 ,
              
               and
               ordain
               
                 the
                 letters
                 to
                 be
                 put
                 to
                 furder
                 execution
                 .
              
            
             
               If
               an
               Advocation
               be
               raised
               to
               
               too
               long
               a
               day
               
                 of
                 compearance
              
               ,
               there
               may
               be
               likewise
               a
               
                 Summonds
                 of
                 Prevento
              
               raised
               thereof
               .
            
             
               In
               a
               
                 Summonds
                 of
                 Contravention
              
               
               
                 of
                 Laborrows
              
               ;
               the
               pursuer
               lybells
               ,
               that
               
                 A.
                 B.
                 became
                 surty
              
               ,
               and
               Laborrows
               for
               
                 C.
                 D.
              
               that
               the
               Complainers
               ,
               
                 Wife
                 ,
                 Ba●rns
              
               ,
               
               
                 Men
                 ,
                 Tennents
              
               ,
               and
               
                 Servants
                 ,
                 should
                 be
                 harmelesse
                 ,
                 and
                 skaithlesse
                 in
                 their
                 Bodies
                 ,
                 and
                 lands
                 ,
                 &c.
                 
              
               And
               then
               subsumes
               upon
               the
               prejudice
               done
               ,
               notwithstanding
               of
               the
               said
               caution
               :
               And
               therefore
               concludes
               ,
               that
               both
               the
               
                 Principal
                 and
                 Cautioner
              
               ,
               should
               be
               decerned
               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
               
               to
               the
               lands
               ,
               and
               how
               long
               and
               after
               what
               manner
               ,
               he
               and
               his
               Authors
               have
               been
               
               by
               themselves
               ,
               their
               Tennents
               ,
               and
               others
               having
               
                 Right
                 from
                 them
              
               ,
               in
               the
               peaceable
               possession
               of
               the
               saids
               lands
               ;
               untill
               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
               saids
               Lands
               ;
               and
               that
               therefore
               the
               said
               Defender
               ,
               and
               his
               
                 Tennents
                 ,
                 and
                 Servants
                 and
                 others
                 ,
                 of
                 their
                 causing
                 ,
                 and
                 commanding
                 ,
                 should
                 be
                 decerned
                 ,
                 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
               propertie
               in
               contraversie
               he
               raises
               
               a
               
                 Summonds
                 of
                 Molestation
              
               ;
               In
               which
               he
               only
               concludes
               ,
               that
               
                 they
                 should
                 desist
                 ,
                 and
                 cease
                 from
                 troubling
                 and
                 molesting
                 him
              
               
               
                 in
                 the
                 peaceable
                 possession
                 of
                 his
                 lands
                 .
              
            
             
               In
               a
               summonds
               
                 for
                 poinding
                 the
                 ground
              
               ,
               the
               Pursuer
               narrates
               ,
               
               that
               he
               stands
               infest
               ,
               and
               seased
               in
               an
               annualrent
               of
               to
               be
               uplifted
               ,
               out
               of
               the
               lands
               of
               and
               therefore
               concludes
               against
               the
               Tennents
               of
               these
               lands
               ;
               and
               the
               Heritor
               for
               his
               interest
               ,
               to
               
                 hear
                 and
                 see
                 Letters
                 directed
                 to
                 Messengers
                 at
                 Armes
                 ,
                 Sherriff
                 in
                 that
                 part
                 ,
                 to
                 Fence
                 ,
                 Arrest
                 ,
                 Apprise
                 ,
                 Compel
                 ,
                 Poind
                 ,
                 aud
                 Distrinzie
                 the
                 readiest
                 Goods
                 and
                 Geer
                 ,
                 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
                 ,
                 &c.
              
               (
               which
               is
               the
               stile
               of
               all
               Summonses
               ,
               which
               begin
               with
               ,
               
                 Our
                 Will
                 is
              
               ,
               )
               to
               
                 Summond
                 ,
                 Warne
              
               ,
               and
               Charge
               the
               Defender
               ,
               to
               compear
               and
               
               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
               
               that
               he
               had
               raised
               such
               ●
               Summonds
               ,
               which
               he
               had
               suffered
               to
               lye
               over
               and
               sleep
               ▪
               for
               a
               year
               ;
               (
               for
               there
               need●
               no
               wakning
               if
               there
               was
               any
               
                 Iudicial
                 Act
              
               ,
               or
               Minute
               upon
               the
               Summonds
               within
               th●
               year
               )
               and
               therefore
               concludes
               against
               all
               the
               Person●
               cited
               in
               the
               first
               Summonds
               ,
               to
               hear
               and
               see
               the
               
                 foresai●
                 action
              
               called
               ,
               
                 wakned
                 ,
                 and
                 begun
                 ,
                 where
                 it
                 last
                 left
                 insisted
                 into
                 ,
                 and
                 Iustice
                 Administrate
                 therein
                 ,
                 till
                 the
                 final
                 decision
                 of
                 the
                 cause
                 .
              
            
             
               A
               Furthcoming
               is
               that
               Action
               ,
               
               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
               
                 Debitor
                 ,
                 ●o
                 remain
                 under
                 Arrestment
                 ;
                 and
                 to
                 be
                 made
                 furthcoming
                 to
                 him
              
               ;
               and
               therefore
               concludes
               ,
               ●hat
               the
               Defender
               should
               be
               
                 decerned
                 to
                 make
                 furthcoming
                 payment
              
               ,
               and
               delivery
               to
               the
               said
               
                 Complainer
                 ,
                 of
                 the
                 sum
              
               of
               
                 adebted
                 ,
                 restand
                 ,
                 ow●nd
              
               be
               him
               to
               the
               said
               Debi●or
               .
               
            
             
               If
               notwithstanding
               of
               the
               Arrestment
               ,
               the
               Debitor
               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
                 decerned
                 to
                 have
                 broken
                 the
                 Arrestment
              
               
               
                 then
                 standing
                 ;
                 an●
                 not
                 lawfully
                 and
                 duely
                 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
                 lybell
              
               was
               not
               allowed
               by
               the
               
                 Ci●●●
                 Law
              
               ;
               yet
               it
               is
               allowed
               by
               
               Ours
               ,
               in
               which
               we
               may
               no●
               only
               pursue
               several
               persons
               ▪
               for
               several
               debts
               in
               one
               lybel●
               which
               we
               call
               by
               a
               general
               name
               ,
               
                 an
                 actions
                 against
                 debitors
              
               but
               we
               may
               likewise
               
                 accumulate
                 several
                 conclusions
              
               ,
               agains●
               one
               and
               the
               same
               person
               though
               they
               be
               
                 of
                 different
                 n●tures
              
               ;
               as
               
                 Reductions
                 ,
                 Improbations
              
               ,
               and
               a
               
                 declarator
                 of
                 propertie
              
               ,
               and
               
                 actions
                 of
                 general
              
               ,
               and
               
                 special
                 Declarator
              
               ;
               in
               all
               which
               it
               is
               a
               general
               rule
               ,
               
                 quot
                 articul●●
                 tot
                 libelli
              
               .
            
             
             
               But
               when
               many
               actions
               are
               ●ompetent
               ,
               for
               one
               and
               the
               same
               thing
               ,
               as
               if
               a
               Messenger
               be
               deforced
               ,
               we
               may
               pursue
               ●he
               
                 Deforcer
                 Criminally
              
               ;
               (
               which
               will
               infer
               
                 confiscation
                 of
                 moveables
              
               ,
               
               
                 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
               concurr
               ●ave
               different
               conclusions
               ,
               as
               ●n
               the
               foresaid
               instance
               ,
               where
               
               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
               Civillie
               ,
               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
                 by
                 Write
              
               ,
               has
               been
               formerly
               explained
               in
               the
               Title
               concerning
               
                 Obligations
                 by
              
               
               write
               .
            
             
               
                 Probation
                 by
                 Oath
              
               ,
               is
               when
               either
               the
               Partie
               or
               Judge
               ;
               
                 referres
                 any
                 thing
                 to
                 the
                 oath
                 of
                 the
                 contrare
                 partie
                 ;
                 but
                 regularly
                 ,
              
               no
               mans
               Right
               can
               be
               taken
               away
               
                 by
                 oath
              
               ;
               except
               
               he
               who
               has
               the
               Right
               ,
               referr
               the
               same
               to
               the
               
                 adversaries
                 oath
              
               ;
               but
               when
               there
               is
               a
               
                 former
                 probation
              
               already
               adduced
               ,
               the
               
               Iudge
               sometimes
               gives
               an
               
                 oath
                 of
                 supplement
              
               ,
               which
               is
               so
               called
               ,
               because
               it
               is
               given
               to
               
                 supplie
                 the
                 Probation
              
               already
               ●ed
               .
            
             
               
                 An
                 Oath
                 of
                 Calumnie
              
               ,
               is
               that
               
               whereby
               either
               the
               Pursuer
               ,
               or
               Defender
               is
               obliged
               to
               swear
               that
               the
               
                 pursute
                 ,
                 defence
                 ,
                 reply
                 ,
                 &c.
              
               are
               not
               groundless
               ,
               and
               unjust
               ,
               and
               this
               may
               be
               
               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
                 furder
                 in
                 that
                 defence
                 ,
                 Duply
                 ,
                 &c.
              
               whereon
               his
               
                 Oath
                 of
                 Calumny
              
               is
               craved
               .
            
             
               An
               
                 Oath
                 in
                 Litem
                 ,
                 is
                 that
              
               
               
                 which
                 Law
                 allows
                 the
                 Iudge
                 to
                 deferr
                 to
                 him
                 who
                 is
                 injured
                 ;
                 for
                 proving
                 the
                 quantities
                 of
                 the
                 thing
              
               
               
                 wherein
                 he
                 is
                 injured
              
               ;
               V.
               G.
               If
               I
               pursue
               Titius
               ,
               for
               having
               
                 brok
                 up
                 my
                 trunk
              
               ;
               and
               I
               have
               proved
               that
               he
               
                 did
                 break
                 it
                 up
                 :
                 the
                 Iudge
                 will
                 refer
                 to
                 my
                 oath
                 ,
                 what
                 I
                 had
                 in
                 the
                 Trunk
              
               ;
               and
               this
               is
               allowed
               both
               
                 in
                 odium
              
               of
               him
               who
               commits
               the
               injurie
               ;
               and
               least
               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
              
               
               
                 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
               intrinsick
               ,
               that
               is
               to
               say
               ,
               
                 necessarly
                 imployed
                 in
                 the
                 nature
                 of
                 the
                 thing
              
               ;
               As
               in
               the
               foresaid
               instance
               .
            
             
               But
               if
               the
               quality
               be
               extrinsick
               ,
               it
               in
               effect
               resolves
               in
               a
               defence
               ,
               and
               so
               must
               be
               proven
               otherwayes
               ,
               than
               
                 by
                 the
                 qualified
                 oath
              
               ;
               as
               if
               a
               
                 debt
                 be
                 referred
                 to
                 a
                 parties
                 oath
                 ,
              
               who
               depones
               ,
               
                 that
                 he
                 acknowledges
                 the
                 debt
                 ,
                 but
                 that
                 it
                 is
                 payed
              
               ;
               this
               will
               not
               be
               admitted
               as
               a
               qualitie
               ,
               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
              
               ,
               untill
               the
               falseness
               
                 of
                 men
                 forced
                 our
                 Law-Givers
                 ,
                 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
                 germans
              
               ,
               or
               of
               
                 neare●
                 Relations
              
               ,
               can
               be
               witnesses
               ;
               no●
               Women
               ,
               nor
               Tennents
               ,
               who
               have
               no
               Tacks
               ,
               nor
               
                 persons
                 declared
                 infamous
              
               ,
               nor
               
                 Domestick
                 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
                 pursute
              
               ;
               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
               
               not
               fall
               upon
               that
               horning
               .
            
             
               Presumptions
               ,
               are
               a
               kind
               of
               probation
               ,
               and
               a
               
                 presumption
                 is
                 defyned
                 to
                 be
                 a
                 strong
                 ground
                 or
                 argument
                 ,
                 whereby
                 a
                 Iudge
                 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
               
                 poyson
                 another
              
               ,
               if
               the
               person
               was
               thereafter
               poysoned
               ,
               it
               is
               presumable
               that
               he
               was
               
                 poysoned
                 by
              
               
               
                 the
                 Threatner
              
               ;
               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
                 decerned
              
               is
               charged
               to
               pay
               or
               fulfill
               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
               alledged
               injured
               by
               a
               Decreet
               ,
               does
               cite
               the
               Partie
               who
               has
               obtained
               the
               Decreet
               
               
                 before
                 the
                 Lords
              
               ,
               (
               for
               no
               
                 inferiour
                 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
               ordinarly
               they
               ordain
               
                 letters
                 of
                 Suspension
              
               to
               be
               raised
               :
               If
               the
               Decreets
               be
               
                 in
                 foro
              
               ,
               then
               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
                 ,
                 discust
              
               ,
               and
               the
               letters
               found
               orderly
               proceeded
               ,
               that
               is
               ordained
               to
               be
               put
               to
               
                 furder
                 Execution
              
               :
               Then
               Letters
               of
               Caption
               may
               be
               raised
               ;
               whereby
               all
               the
               
                 Inferiour
                 Iudges
              
               and
               Magistrates
               ,
               
               are
               ordained
               to
               
                 concurr
                 with
                 the
                 Messenger
                 ,
                 in
                 apprehending
                 the
                 Rebel
                 ,
                 and
                 putting
                 him
                 in
                 prison
              
               ;
               which
               if
               they
               refuse
               :
               or
               if
               the
               Prisoner
               thereafter
               
               escape
               out
               of
               their
               
                 prison
                 ,
                 they
                 are
                 lyable
                 to
                 pay
                 the
                 debt
              
               ;
               
               by
               a
               
                 Subsidiarie
                 action
              
               .
            
             
               Decreets
               are
               executed
               likewise
               by
               Poinding
               ,
               and
               Arrestment
               upon
               the
               Warrand
               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
                 immoveable
                 goods
              
               ,
               which
               is
               by
               Comprising
               and
               Adjudication
               ,
               the
               same
               is
               formerly
               treated
               ,
               Part
               2
               tit
               .
               12.
               
            
             
               If
               the
               Decreet
               be
               ,
               to
               remove
               
               
                 from
                 lands
              
               ,
               then
               the
               Party
               decerned
               to
               remove
               ,
               being
               denounced
               Rebel
               ,
               for
               not
               removing
               ;
               the
               Sherriff
               ,
               or
               
                 Iudge
                 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
               
                 spight
                 of
                 all
                 Law
              
               ,
               after
               
               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
               
                 indemnifie
                 them
              
               .
            
             
               If
               such
               as
               have
               
                 debatable
                 Rights
              
               ,
               choose
               rather
               an
               amicable
               ,
               than
               a
               
                 Iudicial
                 decision
              
               ;
               they
               subscrive
               a
               
                 Submission
                 to
                 Arbiters
              
               ,
               and
               if
               they
               please
               ,
               
               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
               tyed
               to
               the
               strict
               solemnities
               
               
                 of
                 Law
              
               ,
               yet
               they
               must
               observe
               
                 material
                 Iustice
              
               ;
               and
               therefore
               ,
               they
               must
               
                 advertise
                 Parties
                 ,
                 that
                 they
                 may
                 give
                 in
                 claimes
              
               (
               for
               a
               claime
               to
               Arbiters
               is
               in
               place
               of
               
                 lybels
                 to
                 Iudges
              
               ;
               )
               and
               must
               allow
               Terms
               to
               prove
               ;
               And
               though
               Equity
               is
               to
               them
               a
               Rule
               ,
               as
               Law
               is
               to
               other
               Iudges
               ;
               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
               tyed
               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
               
               against
               private
               Persons
               ;
               or
               Publick
               ,
               where
               it
               is
               committed
               immediately
               against
               the
               Common-wealth
               .
            
             
               
                 Private
                 Crimes
              
               ,
               called
               also
               delicta
               ,
               in
               the
               
                 Civil
                 Law
              
               ,
               oblige
               
               the
               Committers
               to
               repair
               the
               Dammage
               ,
               and
               Interest
               of
               the
               private
               Partie
               .
            
             
               Crimes
               are
               in
               Scotland
               either
               punished
               capitally
               ,
               by
               death
               ;
               or
               pecunially
               ,
               by
               a
               certain
               fine
               ;
               
               or
               Arbitrarly
               at
               the
               discretion
               of
               the
               Iudge
               .
            
             
               Capitale
               Crimes
               are
               
               Treason
               ,
               
                 which
                 is
                 punished
              
               by
               forefaulture
               of
               life
               ,
               lands
               ,
               &
               goods
               .
            
             
               It
               is
               Treason
               in
               any
               man
               ,
               to
               
                 Plot
                 ,
                 contrive
                 ,
                 or
                 intend
                 death
                 ,
                 or
                 destruction
                 to
                 the
                 Kings
                 Majesty
                 ;
                 or
                 to
                 lay
                 any
                 restraint
                 upon
                 his
                 Royal
                 Person
                 ;
                 or
                 to
                 deprive
                 ,
                 depose
                 ,
                 or
                 suspend
                 him
              
               *
               ,
               
                 or
                 to
                 endeavour
                 the
                 alteration
                 or
                 diversion
                 of
                 the
                 Succession
              
               *
               ;
               
                 to
                 Levy
                 warr
                 against
                 the
                 King
                 ,
                 or
                 any
                 Commissionated
                 by
                 him
                 ;
                 or
                 to
                 intyse
                 others
                 to
                 invade
                 him
              
               *
               ,
               
                 to
                 make
                 Treaties
                 ,
                 or
                 Leagues
                 with
                 Forraign
                 Princes
                 ;
                 or
                 amongst
                 themselves
                 without
                 his
                 consent
              
               *
               .
               
                 To
                 rise
                 in
                 fear
                 of
                 warr
                 against
                 the
                 King
                 ;
                 to
                 raise
                 a
                 frey
                 in
                 his
                 hoast
              
               †
               ,
               
                 to
                 Assaile
                 Castles
                 where
                 he
                 resides
              
               *
               ;
               
                 to
                 impugne
                 the
                 Authority
              
               
               
                 of
                 the
                 three
                 Estates
                 ;
                 to
                 decline
                 the
                 Kings
                 Authority
                 ;
                 not
                 to
                 come
                 out
                 to
                 the
                 Kings
                 Hoast
              
               ;
               or
               to
               desert
               it
               *
               ;
               to
               maintain
               or
               reset
               Treatours
               ‡
               ;
               to
               conceale
               Treason
               ;
               to
               
                 countersite
                 the
                 Kings
                 coyne
              
               ;
               and
               to
               raise
               
                 wilful
                 fire
              
               *
               ;
               all
               which
               are
               
                 Species
                 of
                 high
                 Treason
              
               .
            
             
               We
               have
               a
               kind
               of
               Treason
               in
               Scotland
               ,
               which
               we
               call
               Statutory
               
               Treason
               ;
               because
               it
               is
               meerly
               introduced
               by
               statute
               ,
               and
               not
               by
               
                 common
                 Law
                 :
                 viz.
                 Theft
                 in
                 landed
                 men
              
               ‡
               ;
               because
               of
               the
               danger
               of
               that
               kind
               of
               
                 theft
                 ;
                 murder
                 under
                 trust
              
               *
               ;
               as
               if
               one
               man
               should
               
                 kill
                 another
              
               ,
               when
               he
               invites
               him
               to
               his
               house
               ;
               or
               a
               Tutor
               should
               kill
               his
               Pupill
               ;
               which
               because
               of
               the
               easiness
               and
               attrociousness
               of
               the
               Crime
               is
               made
               
                 Treason
                 ;
                 The
                 fireing
                 of
                 Coals
                 heughs
              
               *
               ,
               
               assassination
               *
               ;
               
                 &
                 the
                 pursueing
                 another
                 for
                 Treason
                 without
                 being
                 able
                 to
                 prove
                 it
              
               ‡
               .
               
                 All
                 Iesuits
                 ,
                 Seminary
                 Priests
                 ,
                 and
                 traffecking
                 Papists
              
               *
               ;
               
                 and
                 all
                 thieves
                 ,
                 who
                 take
                 bonds
                 from
                 lealand
                 honest
                 men
                 ,
              
               for
               re-entering
               when
               they
               please
               :
               All
               who
               purchase
               
                 benefices
                 at
                 Rome
              
               ;
               are
               guilty
               of
               Treason
               ‡
               .
            
             
               No
               Crime
               can
               be
               pursued
               against
               a
               man
               or
               his
               heirs
               ,
               after
               his
               death
               ;
               except
               that
               Treason
               which
               is
               committed
               against
               the
               
                 Kings
                 Person
              
               ,
               or
               Common-wealth
               .
            
             
               The
               other
               
                 Capital
                 crimes
              
               are
               
                 Blasphemie
                 ,
                 Mans
                 slaughter
              
               ,
               or
               Homicide
               ;
               for
               all
               Homicide
               is
               
                 Capital
                 with
                 us
              
               :
               except
               it
               be
               Casual
               *
               ,
               or
               Homicide
               in
               self
               defence
               .
            
             
               *
               Theft
               is
               punishable
               by
               death
               ;
               but
               we
               call
               small
               
                 theft
                 pickery
              
               ,
               
               and
               it
               is
               only
               punishable
               arbitrarly
               *
               .
            
             
               
                 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
              
               *
               
                 death
                 ;
                 but
                 simple
                 adultery
                 is
                 only
                 punishable
                 arbitrarly
                 .
                 Incest
              
               *
               ,
               
                 Buggery
                 ,
                 Duells
              
               †
               ,
               
                 the
                 invading
                 of
                 any
                 of
                 his
                 Majesties
                 Officers
                 ,
                 for
                 doing
                 his
                 Majesties
                 service
              
               *
               ;
               Forgery
               †
               ,
               
                 Witchcraft
                 ,
                 and
                 the
                 consulters
                 of
                 Witches
              
               *
               ,
               Sorners
               ;
               that
               is
               to
               say
               ,
               
                 such
                 as
                 masterfully
                 take
                 Meat
                 and
                 Drink
                 from
                 the
                 Kings
                 People
                 without
                 payment
              
               †
               
                 :
                 All
                 wilfull
                 hearers
                 of
                 Mass
              
               *
               ,
               
                 and
                 conceallers
                 of
                 the
                 same
                 ;
                 Mutilation
              
               †
               ,
               which
               is
               the
               
                 disabling
                 of
                 a
                 member
              
               ,
               
               
               
               
               (
               though
               
                 de
                 praxi
              
               ;
               this
               be
               ordinarly
               punished
               with
               an
               
                 arbitrary
                 punishment
              
               :
               Or
               the
               Authours
               of
               
                 infamous
                 Lybells
                 ,
                 Seditious
                 Speeches
                 ,
                 tending
                 to
                 sedition
                 ;
                 the
                 strickers
                 of
                 any
                 Iudge
                 in
                 judgement
                 ;
                 mixers
                 of
                 Wine
              
               *
               ,
               
                 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
              
               *
               ▪
               
                 killers
                 of
                 Daes
                 ,
                 Deer
                 ,
                 Roes
              
               †
               ;
               
                 destroyers
                 of
                 Bee-hyves
                 ,
                 Fruit-trees
                 ,
                 Greenwood
                 ;
                 kindlers
                 of
                 Mure-burn
                 ;
                 except
                 in
                 the
                 Moneth
                 of
                 March
                 ;
                 Steeping
                 of
                 Green-Lint
                 in
                 runing
                 Waters
                 .
                 or
                 Loches
                 ;
                 such
                 as
                 are
                 guiltie
                 of
                 abominable
                 Oaths
                 ;
                 and
                 Furnication
                 .
              
            
             
               Crimes
               to
               be
               arbitrarly
               punished
               at
               the
               discretion
               of
               the
               Iudge
               ,
               are
               
                 negligence
                 in
                 the
              
               
               
                 Kings
                 Iudges
                 and
                 Officers
              
               *
               ,
               
                 and
                 such
                 as
                 unjustly
                 murmure
                 against
                 them
              
               †
               ;
               
                 breakers
                 of
                 the
                 Kings
                 protection
              
               *
               
                 :
                 the
                 bringing
                 home
                 of
                 erroneous
                 Books
              
               †
               ;
               
                 and
                 the
                 troublers
                 of
                 Church-men
                 ;
                 Crafts-men
              
               *
               
                 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
                 Iudge
                 ,
              
               can
               be
               by
               him
               
                 extended
                 to
                 death
              
               ;
               and
               that
               where-ever
               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
               Bigamie
               ,
               (
               which
               is
               a
               kind
               of
               perjury
               ;
               because
               ,
               
                 a
                 man
                 who
                 marries
                 two
                 wives
                 breaks
                 his
                 Matrimonial
                 oath
                 ,
              
               )
               are
               punishable
               by
               confiscation
               *
               
                 of
                 all
                 the
                 Offenders
                 Moveable
                 Goods
                 ,
                 Imprisonment
                 ,
                 and
                 Infamy
                 .
              
            
             
               
                 Deforcers
                 of
                 Messengers
                 ,
                 and
                 breakers
                 of
                 arrestment
                 ,
              
               are
               punishable
               by
               
                 confiscation
                 of
                 all
                 their
                 Moveables
              
               †
               ;
               
                 Forestallers
                 of
                 Mercats
              
               *
               ,
               
                 by
                 buying
                 things
                 before
                 they
                 be
                 pr●sented
                 to
                 the
                 Mercat
                 ;
                 or
                 before
                 the
                 Mercat
                 be
                 proclaimed
                 ,
                 are
                 punishable
                 by
                 Imprisonment
                 ,
              
               and
               
                 Confiscation
                 of
                 what
                 is
                 bought
              
               .
            
             
               Ocker
               ,
               or
               Usury
               *
               ,
               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
               Debitor
               is
               to
               
               be
               free
               from
               the
               Obligation
               ,
               and
               the
               
                 write
                 being
                 reduced
                 ,
                 the
                 sum
                 belongs
                 to
                 His
                 MAIESTIE
                 .
              
            
             
               Stellionat
               or
               the
               making
               
                 of
                 double
                 Rights
                 ;
                 is
                 punished
                 by
                 infamy
              
               *
               ;
               
                 and
                 their
                 persons
                 are
                 at
                 the
                 Kings
                 will.
                 
              
            
             
               The
               Keepers
               of
               Victual
               to
               a
               dearth
               ,
               are
               punishable
               as
               *
               Ockerers
               ;
               and
               by
               the
               
                 Civil
                 Law
                 ,
                 per
                 leg
                 :
                 Iul
                 :
                 de
                 Annona
                 .
              
               Bribing
               of
               Iudges
               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
              
               *
               .
               Baratrie
               ,
               or
               the
               
                 obtaining
                 benefices
                 from
                 Rome
              
               ,
               is
               punishable
               by
               †
               banishment
               and
               
                 infamy
                 .
                 Ambitus
              
               ,
               or
               
                 the
                 obtaining
                 offices
                 by
                 unjust
                 means
                 ,
              
               is
               not
               punishable
               under
               Monarchie
               .
            
             
             
               The
               punishment
               of
               Crimes
               is
               taken
               off
               ,
               either
               by
               Remissions
               ,
               which
               must
               pass
               the
               
                 Great
                 Seal
              
               ;
               and
               must
               express
               the
               
                 greatest
                 Crime
              
               †
               ,
               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
               *
               
                 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
               founds
               on
               a
               Remission
               ,
               acknowledges
               the
               Crime
               ;
               but
               he
               who
               founds
               on
               an
               Indemnity
               does
               not
               .
            
             
               The
               King
               likewise
               restores
               men
               sometime
               against
               forefaultures
               ;
               which
               Restitution
               is
               either
               by
               
                 way
                 of
                 Iustice
                 ,
                 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
              
               .
               †
               
                 Or
                 secundo
              
               ,
               the
               Restitution
               is
               
                 by
                 way
                 of
                 grace
              
               and
               meer
               favour
               ;
               and
               then
               the
               partie
               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
           .
        
      
    
     
       
         Notes, typically marginal, from the original text
         
           Notes for div A50514-e1550
           
             *
             K.
             J.
             6
             Par.
             8.
             
             Act
             ●31
             
          
           
             *
             K.
             Ja.
             4.
             
             Par.
             4.
             
             Act
             51.
             K.
             Jam.
             5.
             
             Par.
             6
             Act
             80.
             
             ●
             .
             Mary
             Par.
             5.
             
             Act
             22.
             
             K
             ,
             Ja.
             6
             Par.
             1.
             
             Act
             31.
             
          
           
             *
             K.
             Ja.
             5.
             
             Par
             7
             Act
             93.
             
          
           
             *
             K.
             Ja.
             1
             par
             .
             3.
             
             Act
             54.
             K.
             Ja.
             3.
             
             Par.
             14.
             
             Act
             115
             
          
           
             †
             K.
             Ja.
             6
             par
             .
             3.
             
             Act
             18.
             
          
           
             *
             K.
             Ch.
             2.
             
             Par.
             1
             Act.
             2.
             
             Par.
             3.
             
             Act
             18.
             
          
           
             *
             K.
             C.
             2
             par
             .
             3.
             
          
           
             *
             K.
             C.
             ●
             Par.
             1.
             
             Sess.
             1
             ,
             Act
             11.
             
          
           
             ‡
             par
             .
             3
             Act
             18.
             
          
           
             *
             K.
             J.
             6.
             par
             .
             14.
             
             Act
             212
             
          
           
             *
             K.
             C.
             2
             par
             .
             3.
             
             Act
             13.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             15.
             
             Act
             251
             
          
           
             *
             K.
             C.
             ●
             Par.
             1.
             
             Sess.
             1.
             
             Act
             5.
             and
             15
             ▪
             Par.
             3.
             
             Act
             2.
             
          
           
             *
             Act
             foresaid
             
          
           
             *
             King
             Ch.
             2.
             
             Par.
             1.
             
             Ses.
             1.
             
             Act.
             2.
             
          
           
             *
             K.
             Ja.
             6.
             par
             .
             18.
             
             Act
             1
             K.
             Ch.
             1.
             par
             .
             1.
             
             Act
             3.
             K.
             Ch.
             2
             par
             .
             2.
             
             Ses.
             1.
             
             Act
             1.
             
          
           
             *
             K.
             J.
             1.
             
             Par.
             7.
             
             Act
             101
             K.
             Ja.
             6.
             
             Par.
             11.
             
             Act
             113
             
          
           
             *
             K.
             Ja.
             ●
             .
             Par.
             7.
             
             Act.
             ●28
             .
          
           
             *
             K.
             Ja.
             5.
             par
             .
             5.
             
             Act
             36
             ,
             37
             ,
             38
             ,
             39
             ,
             40.
             
          
           
             *
             K.
             Ja.
             6.
             
             Par.
             12.
             
             Act
             132.
             
          
           
             *
             K.
             C.
             2
             Par.
             2.
             
             Sess.
             3.
             
             Act
             18.
             
          
           
             *
             K.
             C.
             1
             par
             .
             1.
             
             Act
             18.
             
          
           
             *
             K.
             C.
             2
             par
             .
             3.
             
             Act
             16.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             12.
             
             Act
             124
             
          
           
             *
             K.
             C.
             2
             Par.
             1.
             
             Sess.
             3.
             
             Act
             15.
             
          
           
             *
             Leg.
             Mak.
             2.
             
             Act
             11.
             
             Quoniam
             Attach
             .
             cap.
             79
             
          
           
             †
             K.
             Ja.
             2.
             
             Par.
             1●
             .
             Act
             43.
             
          
           
             *
             K.
             Ja.
             6.
             
             Par.
             11.
             
             Act.
             29.
             
          
           
             *
             Quoniam
             Attach
             ,
             cap.
             89.
             
          
           
             *
             K.
             C.
             2
             Par.
             1.
             
             Act
             38.
             
          
           
             *
             K.
             Ja.
             6.
             par
             .
             1.
             
             Act
             2
             ,
          
           
             *
             K.
             Ja.
             6.
             
             Par.
             9.
             
             Act
             7
             
          
           
             *
             K.
             Ja
             :
             6.
             parl
             .
             ●
             .
             Act
             131.
             
             K.
             Char
             2.
             par
             .
             1.
             sess
             :
             1.
             
             Act
             4.
             sess
             .
             3.
             
             Act
             5.
             
          
           
             *
             K
             :
             J
             :
             6
             :
             Par
             :
             22
             :
             Act
             1.
             
          
           
             *
             K.
             J.
             6.
             par
             .
             21.
             
             Act
             1.
             
          
           
             *
             K.
             Ja.
             6.
             par
             .
             18.
             
             Act
             3.
             
          
           
             *
             K.
             Ja.
             6.
             par
             .
             19.
             
             Act
             8.
             
          
           
             *
             K.
             Ja.
             6.
             
             Par.
             1
             Act
             12
             ▪
             
          
           
             *
             K.
             Ja.
             6.
             
             Par.
             2
             Act
             1.
             
          
           
             *
             Act
             foresaid
             .
          
           
             *
             K.
             Ja.
             6.
             
             Par.
             22.
             
             Act
             3.
             
          
           
             *
             K.
             Ja.
             6
             Par.
             13
             Act
             161
             
          
           
             *
             K.
             Ja.
             6
             Par.
             21
             Act
             8.
             
          
           
             *
             King
             James
             6
             Par.
             3.
             
             Act
             48.
             
          
           
             *
             King
             James
             6
             par
             :
             11
             :
             Act
             161
             
          
           
             *
             King
             Charles
             2
             :
             par
             .
             ●
             sess
             :
             3
             :
             Act
             13.
             
          
           
             *
             King
             James
             6
             Par
             29.
             
             Act
             6.
             
          
           
             *
             Levit.
             chap.
             18
             K.
             Ja.
             6
             ,
             Par.
             1.
             
             Act
             1.
             
          
           
             *
             King
             Charles
             2.
             parl
             .
             1.
             
             Sess.
             1
             Act
             34.
             
          
           
             †
             King
             James
             4
             par
             .
             6.
             
             Act
             77.
             
             K
             Char
             Par.
             2.
             
             Act
             9.
             
             Sess.
             3.
             
          
           
             *
             K.
             C.
             2
             Par.
             3.
             
             Act
             10.
             
          
           
             *
             Reg.
             Ma.
             lib.
             2.
             cap.
             58.
             
             Leg.
             Burg.
             cap.
             44.
             
          
           
             *
             K.
             Ja.
             6.
             
             Par.
             4
             Act
             55
             
          
           
             *
             K.
             Ja.
             3
             Par.
             7.
             
             Act
             32.
             
          
           
             *
             Q.
             M.
             Par.
             6.
             
             Act
             35.
             
          
           
             *
             K.
             C.
             2
             Par.
             2.
             
             Sess.
             ●
             .
             Act
             2.
             
          
           
             *
             K.
             C.
             2
             Par.
             3.
             
             Act
             19.
             
          
           
             *
             Statu●
             :
             a
             Will
             :
             cap.
             39.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             10.
             cap.
             18.
             
          
           
             *
             K.
             C.
             2
             Par.
             1.
             
             Act
             32.
             
          
           
             *
             K.
             C.
             2
             Par.
             3.
             
             Act
             5.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             14.
             act
             214.
             
          
           
             K.
             J.
             6.
             
             Par.
             22.
             
             Act
             16.
             
          
           
             *
             Q.
             Ma
             Par.
             3.
             
             Act
             5.
             K.
             Ja.
             6.
             
             Par
             :
             2.
             
             Act
             ●2
             .
          
           
             *
             K.
             J.
             6.
             
             Par.
             18.
             
             Act
             14.
             
          
           
             ‡
             K.
             J.
             6.
             
             Par.
             1.
             
             Act
             27.
             
          
           
             *
             K.
             C.
             2
             Par.
             3.
             
             Act.
             11.
             
          
           
             *
             K.
             J.
             4.
             
             Par.
             3.
             
             Act
             25.
             K.
             Ja.
             5.
             
             Par.
             4.
             
             Act
             15.
             
          
           
             *
             Stat
             :
             Rob.
             3.
             cap.
             19.
             
          
           
             *
             Stat
             :
             Rob.
             3.
             cap.
             18.
             
             Reg
             :
             Majest
             .
             lib.
             2.
             cap.
             63.
             
             Par.
             6.
             
             &
             9.
             
          
           
             *
             Leg.
             Mal.
             cap.
             1
             ▪
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             15.
             act
             226.
             
          
           
             *
             K.
             J.
             5.
             
             Par.
             4.
             
             Act
             32.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             22.
             
             Act
             15.
             
          
           
             *
             K.
             J.
             ●
             .
             Par.
             1.
             act
             12.
             
          
           
             ‡
             K.
             J.
             2.
             
             Par.
             6.
             
             Act
             17
             
          
           
             *
             K.
             J.
             4.
             
             Par.
             3.
             act
             26.
             
          
           
             *
             Q.
             Ma
             Par.
             6.
             
             Act
             39.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             5.
             
             Act
             66.
             
          
           
             *
             K.
             C.
             2
             Par.
             2.
             
             Sess.
             1.
             
             Act
             3.
             
          
           
             *
             K.
             J.
             3.
             
             Par.
             5.
             
             Act
             ▪
             28.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             22.
             
             Act
             16.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             14.
             act
             222.
             
             Par.
             15.
             act
             247.
             
          
           
             *
             King
             Char.
             2.
             par
             .
             1.
             
             Act
             62.
             
          
           
             *
             K.
             J.
             3
             ▪
             Par.
             5.
             act
             37.
             
          
           
             *
             K.
             C.
             2
             Par.
             1.
             
             Act
             ▪
             62.
             
          
           
             *
             K.
             C.
             2
             Par.
             3.
             
             Act
             10.
             
          
           
             †
             K.
             J.
             4.
             
             Par.
             6.
             
             Act
             77.
             
          
           
             *
             K.
             J.
             4
             par
             .
             3.
             
             Act
             25.
             
          
           
             *
             Tyths
             or
             Tenths
             :
          
           
             *
             K.
             J.
             6.
             
             Par.
             11.
             
             Act
             29.
             
          
           
             *
             K.
             C.
             1
             Par.
             1.
             
             Act
             17.
             and
             19.
             K.
             Ch.
             ●
             Par.
             1.
             
             Sess.
             1.
             
             Act
             61.
             
          
           
             *
             Act
             of
             Sed.
             19.
             
             Feb
             ▪
             16.
             1680.
             
          
           
             *
             K.
             J.
             6.
             
             Par
             ▪
             1●
             .
             Act
             264
             ▪
             &
             265.
             par
             .
             1●
             .
             Act
             1●
             .
          
           
             *
             K.
             C.
             2
             ▪
             Par.
             3.
             
             Act
             26.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             7.
             
             Act
             ▪
             119
             ▪
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             5.
             
             Act
             37.
             
          
           
             *
             K.
             C.
             2.
             
             Par.
             1.
             
             Sess.
             1.
             
             Act
             62
             
          
           
             *
             K.
             C.
             2
             par
             .
             1.
             
             Sess.
             3.
             
             Act
             19.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             23.
             
             Act
             6.
             
          
           
             *
             K.
             J.
             6
             par
             .
             21.
             
             Act
             6.
             
          
           
             *
             K.
             J.
             3.
             
             Par.
             5.
             
             Act
             37.
             K.
             J.
             6.
             
             Par.
             23.
             
             Act
             6.
             
          
           
             *
             K.
             C.
             2
             Par.
             1.
             
             Act
             62.
             
          
           
             *
             Act
             foresaid
             .
          
           
             *
             K.
             C.
             2
             Par.
             2.
             
             Sess.
             1.
             
             Act
             18.
             
          
           
             *
             K.
             C.
             ●
             Par.
             2.
             
             Sess.
             3.
             
             Act
             19.
             
          
           
             *
             K.
             C.
             2
             Par.
             1
             Sess.
             1.
             
             Act
             62.
             
          
           
             *
             K.
             C.
             2
             Par.
             2
             Sess.
             1.
             
             Act.
             18.
             
          
           
             O●l●gat●on
             .
          
           
             *
             Contracts
             .
          
           
             *
             Contracts
             .
          
           
             *
             Mutuum
             .
          
           
             *
             Commodatum
             .
          
           
             Precariu●
             .
          
           
             Depositation
             .
          
           
             Pledge
             .
          
           
             Condictio
             Indebiti
             .
          
           
             Obligation
             by
             Write
             .
          
           
             Promises
             .
          
           
             *
             K.
             J.
             6.
             
             Par.
             15.
             
             Act
             175
             
          
           
             *
             K.
             C.
             2
             pa●
             .
             3.
             
             Act
             5.
             
          
           
             Bills
             of
             Exchange
             .
          
           
             Emo
             &
             Vend
             .
          
           
             Emption
             .
          
           
             *
             Location
             .
          
           
             Society
             
          
           
             *
             Mándate
             .
          
           
             Gen.
             &
             Par.
             Mand.
             
          
           
             Exercitor
             .
          
           
             Institor
             
          
           
             Homologation
             .
          
           
             Quasi
             contractus
             .
          
           
             Negotiorum
             Gestio
             .
          
           
             Tutory
             .
          
           
             Cautioners
             .
          
           
             Relief
             of
             Cau
             :
          
           
             Donations
             .
          
           
             Remuneratory
             Donations
             .
          
           
             Donations
             in
             Contemplation
             of
             Death
             .
          
           
             Gifts
             .
          
           
             Consent
             .
          
           
             Discharge
             .
          
           
             Dis
             charges
             general
             and
             particular
             .
          
           
             Apocha
             trium
             annorum
             .
          
           
             Payment
             .
          
           
             Acceptilation
             
          
           
             Compensation
             .
          
           
             Innovation
             ▪
             
          
           
             Consusion
             .
          
           
             Assignation
             .
          
           
             Cedent
             &
             Assig
             .
          
           
             Intimation
             .
          
           
             Blank
             Band.
             
          
           
             Of
             Arrestments
             .
             and
             Poyndings
             .
          
           
             *
             K.
             J.
             6.
             
             Par.
             7.
             act
             118.
             
          
           
             *
             K.
             C.
             2
             Par.
             1.
             
             Sess.
             1.
             
             Act
             51.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             22.
             
             Act
             17.
             
          
           
             *
             〈…〉
             Par.
             act
             118
             
          
           
             Poinding
             :
          
           
             *
             K.
             J.
             6.
             
             Par.
             12.
             
             Act
             10.
             K.
             Ch.
             2.
             
             Par.
             1.
             
             Sess.
             1.
             
             Act
             29.
             
          
           
             *
             K
             :
             C
             :
             2
             Par
             :
             2
             :
             Sess
             :
             1
             :
             Act
             ●
             :
          
           
             Labour
             ing
             oxen
          
           
             *
             K.
             J.
             4
             par
             .
             6.
             
             Act
             98.
             
          
           
             Pes●r
             .
          
           
             Pres
             :
             of
             Herit
             .
             Rights
             .
          
           
             Pres
             :
             of
             personal
             Rights
             .
          
           
             *
             K.
             J.
             3.
             
             Par.
             5.
             
             Act
             29.
             
             Par.
             ●
             .
             Act
             ●●
             :
          
           
             *
             K.
             J.
             6.
             
             Par.
             7.
             act
             119.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             6.
             
             Act
             83.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             6.
             
             Act
             82.
             
          
           
             Assyers
             .
          
           
             *
             K.
             J.
             6.
             
             Par.
             22.
             
             Act
             13.
             
          
           
             Forfeiture
             :
          
           
             *
             K.
             J.
             6.
             
             Par.
             9.
             
             Act
             2.
             
          
           
             *
             K.
             C.
             2
             Par.
             2.
             
             Sess.
             1.
             
             Act
             9.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             22.
             
             Act
             12.
             
          
           
             Prescription
             
          
           
             Interruption●
             
          
           
             *
             K.
             C.
             2
             ▪
             Par.
             2.
             
             Sess.
             1
             :
             Act
             9.
             
          
           
             *
             K
             :
             C
             :
             2
             Par
             :
             3.
             
             Act
             5.
             
          
           
             Heir
             :
          
           
             Heir
             of
             Line
             :
          
           
             Grand
             Children
             .
          
           
             Collaterals
             .
          
           
             Representation
             .
          
           
             Heirs
             of
             Line
             .
          
           
             Heir
             of
             Conquest
             .
          
           
             Conquest
             .
          
           
             Heirs
             Male.
             
          
           
             Heirs
             of
             provision
             .
          
           
             Heirs
             portioners
             .
          
           
             Discussion
             ▪
             
          
           
             Heir
             Active
             .
          
           
             Appearand
             Heir
             .
          
           
             *
             Annus
             delib
             .
             K.
             ●a
             .
             6.
             
             Par.
             2●
             .
             Act.
             27.
             
          
           
             Posthum
             Child
             .
          
           
             general
             Brief
             .
          
           
             Behaving
             as
             Heir
             .
          
           
             Succes
             .
             tit
             .
             lucr
             .
          
           
             Rights
             on
             Death-bed
             .
          
           
             *
             Stat.
             Will.
             Reg.
             cap.
             13.
             
          
           
             Inventary
             
          
           
             Testaments
             .
          
           
             Legacy
             
          
           
             Jus
             relicta
             .
          
           
             Legittim
             .
          
           
             Deads
             part
             
          
           
             Executor
             .
          
           
             *
             K.
             J.
             6.
             
             Par.
             22.
             
             Act
             14.
             
             Colation
             .
          
           
             Exec.
             Nominate
             .
          
           
             Execut.
             Dative
             .
          
           
             Executor
             Creditor
             .
          
           
             *
             Act
             of
             Sed.
             18.
             
             Feb.
             1662.
             
          
           
             Special
             Legacy
             
          
           
             Co-Execut
             .
          
           
             Diligence
             of
             Exe
             :
          
           
             Prvil
             .
             Debts
             .
          
           
             Decreet
             of
             Exoneration
             .
          
           
             Vitious
             Intromission
             .
          
           
             Relief
             ,
             &c.
             
          
           
             ultimus
             ●aeres
             .
          
           
             Bastardy
             .
          
           
             *
             K.
             J.
             ●
             par
             .
             16
             ▪
             Act
             20.
             
          
           
             Actions
             
          
           
             Real
             &
             Personall
             Actions
             
          
           
             Improbation
             .
             Reduction
             .
          
           
             Terms
             of
             Imp.
             
          
           
             Direst
             Manner
             of
             Imp.
             
          
           
             Indirect
             Manner
             of
             Imp.
             
          
           
             Certif
             .
             in
             Imp.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             23.
             
             Act
             18.
             
          
           
             Reprobatour
             .
          
           
             Summonds
             ●●
             Error
             
          
           
             Act
             prejudicial
             .
          
           
             Exhibitions
             .
          
           
             Actiones
             Bonae
             fidei
             .
          
           
             Actiones
             stricti
             Juris
             .
          
           
             Rei
             Persecutoriae
             
          
           
             Penal
             .
          
           
             Arbitrary
             .
          
           
             Declarators
             .
          
           
             Civil
             Actions
             
          
           
             Nature
             of
             a
             Summonds
             .
          
           
             Medium
             concludendi
             .
          
           
             Will
             of
             the
             Summonds
             .
          
           
             Conclusion
             .
          
           
             *
             K.
             J.
             6.
             par
             .
             10.
             
             Act.
             13
             ▪
             
          
           
             Transsumpts
             .
          
           
             Multiple
             Poyndings
             .
          
           
             Transferrence
             
          
           
             Summonds
             of
             Regi
             ▪
             stration
             
          
           
             Prevento
             .
          
           
             Advoca
             ▪
             tion
             .
          
           
             Contra
             :
             of
             Laborrows
             .
          
           
             Declar
             :
             of
             Property
             .
          
           
             Summonds
             of
             Mole
             ▪
             station
             .
          
           
             Poynding
             of
             the
             ground
             .
          
           
             Spulzie
             
          
           
             Wakning
             .
          
           
             Furthcoming
             
          
           
             Breach
             of
             Arrestment
             .
          
           
             Accumulation
             of
             Actions
             
          
           
             Concu●sus
             actionum
             .
          
           
             Defor●ment
             .
          
           
             Probation
             .
          
           
             By
             Write
             .
          
           
             By
             Oath
             .
          
           
             Oath
             of
             Calumnie
             .
          
           
             K
             :
             J
             :
             1●
             par
             :
             9
             :
             act
             12●
             
          
           
             Oa●h
             in
             Litem
             .
          
           
             A
             Qualified
             Oath
             .
          
           
             Presumption
             .
          
           
             Suspension
             .
          
           
             Caption
             
          
           
             Subsid
             :
             Action
             .
          
           
             Ejectino
             .
          
           
             Letters
             of
             Fire
             and
             Sword.
             
          
           
             Decreets
             Arbitral
             .
          
           
             Crimes
             .
          
           
             Delicta
             
          
           
             Treason
             .
          
           
             *
             K.
             J.
             2.
             par
             .
             6.
             act
             24.
             
             K.
             C.
             2
             par
             .
             1.
             
             Sess.
             3.
             act
             112.
             
          
           
             *
             K.
             C.
             2
             par
             .
             3.
             act
             2.
             
          
           
             *
             Par.
             1.
             act
             2.
             
          
           
             *
             K.
             C.
             2
             par
             .
             1.
             ses
             .
             1.
             act
             4.
             
          
           
             †
             K.
             J.
             2
             par
             .
             1●
             .
             act
             .
             54.
             K.
             J.
             2.
             par
             .
             6.
             act
             24.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             8.
             act
             129.
             
             &
             150.
             
          
           
             *
             K.
             J.
             1.
             
             Par.
             1.
             
             Act
             4.
             
          
           
             ‡
             Act
             97
             Par.
             7.
             
          
           
             *
             K.
             J.
             5.
             
             Par.
             3.
             
             Act
             8.
             
          
           
             Stat
             :
             Treason
             .
          
           
             ‡
             K.
             J.
             6.
             
             Par.
             11.
             
             Act
             50.
             
          
           
             *
             Ibid.
             Act
             51.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             12.
             ast
             146.
             
          
           
             *
             K.
             C.
             2
             Par.
             3.
             
             Act
             13.
             
          
           
             ‡
             K.
             J.
             6.
             
             Par.
             11.
             
             Act
             49.
             
          
           
             *
             K.
             J.
             6.
             
             Par.
             12.
             act
             120.
             
          
           
             ‡
             K.
             J.
             5.
             
             Par.
             7.
             act
             125
             K.
             Ja.
             6
             ,
             Par.
             6.
             
             Act
             69.
             
          
           
             *
             K.
             C.
             2
             Par.
             1.
             
             Sess.
             1.
             
             Act
             22.
             
          
           
             *
             K.
             J.
             1.
             
             Par.
             13.
             
             Act
             137
             and
             14.
             
          
           
             *
             K.
             J
             :
             3
             :
             Par
             :
             7
             :
             Act
             60.
             
          
           
             *
             Q
             :
             M
             :
             Par
             :
             9
             :
             Act
             74
             :
             K
             :
             Ja
             :
             6
             :
             Par
             :
             6.
             
             Act
             105
             
          
           
             †
             K
             :
             J
             :
             6
             :
             Par
             :
             1
             :
             Act
             14
             :
          
           
             *
             K
             :
             J
             :
             6
             p
             :
             16
             :
             act
             12
             :
          
           
             †
             K
             :
             J
             :
             6
             par
             :
             16
             :
             act
             4
             :
          
           
             *
             J
             :
             5
             :
             p
             :
             6
             :
             act
             8
             :
          
           
             †
             Q
             :
             M
             :
             act
             22
             :
             par
             :
             7
             :
          
           
             *
             K
             :
             J
             :
             3
             :
             p
             :
             10
             :
             act
             71
             :
          
           
             †
             Q
             :
             M
             :
             p
             :
             9
             :
             act
             73
             :
          
           
             †
             K
             :
             J
             :
             1
             :
             par
             :
             1
             :
             act
             5
             :
             &
             7
             :
          
           
             *
             K
             :
             J
             :
             6
             :
             p
             :
             14
             :
             act
             193
             :
          
           
             †
             K
             :
             J
             :
             6
             :
             p
             :
             6
             :
             a
             :
             76
             :
          
           
             *
             K.
             J.
             3.
             
             Par
             ,
             12.
             
             Act
             89.
             
          
           
             *
             *
             K.
             J.
             1.
             
             Par
             :
             1
             :
             act
             1
             :
             &
             Act
             16
             :
             Par
             :
             14
             :
             ●act
             :
             10
             
          
           
             †
             K.
             J
             1.
             
             Par.
             1.
             act
             19.
             
          
           
             *
             K.
             J.
             2.
             
             Par.
             14.
             act
             76.
             
          
           
             †
             K.
             J.
             5.
             
             Par.
             7.
             act
             104.
             
          
           
             *
             K.
             J.
             1.
             
             Par.
             11.
             act
             134.
             
          
           
             †
             K.
             J.
             6.
             
             Par.
             7.
             act
             106.
             
          
           
             *
             K
             :
             J
             :
             1
             :
             Par
             :
             5
             :
             act
             80
             :
             K
             :
             Ja
             :
             5
             :
             Par
             :
             7
             :
             act
             111
             :
          
           
             *
             Q.
             Ma
             Par.
             5.
             
             Act
             19.
             
          
           
             †
             K.
             J.
             6.
             
             Par.
             7.
             
             Act
             118
             Par.
             12.
             
             Act
             150
             
          
           
             *
             Ibib.
             Act
             148
             
          
           
             *
             K.
             J.
             6
             :
             Par.
             11.
             
             Act
             52.
             
             Par.
             14.
             
             Act
             222
             Par.
             15.
             
             Act
             257
             
          
           
             *
             K.
             J.
             5.
             
             Par.
             7.
             
             Act
             15.
             
             K
             :
             Ja.
             6.
             
             Par.
             12.
             
             Act
             141
             
          
           
             *
             K.
             J.
             2.
             
             Par.
             6.
             
             Act
             22.
             K.
             Ja.
             6.
             
             Par.
             6.
             act
             93.
             
          
           
             *
             K.
             J.
             6.
             par
             .
             13.
             act
             137.
             
          
           
             †
             K.
             J.
             6.
             
             Par.
             1.
             act
             2.
             
             Par.
             6.
             act
             72
             
          
           
             †
             K.
             J.
             4
             Par.
             6.
             act
             62.
             
          
           
             *
             K.
             J.
             2.
             
             Par.
             14.
             act
             74.
             K.
             Ja.
             5.
             
             Par.
             3.
             act
             7.
             
          
           
             †
             K.
             J.
             6.
             
             Par.
             18.
             
             Act
             4.