Essays upon several subjects in law: sciz. justertii, beneficium cedendarum actionum, vinco vincentem, prescription.

Jus Tertii.

_WHEN a Man pleads any Point, in which he has no LEGAL INTEREST, i. e. from the gaining of which he can propose to himself no just or reasonable Advantage, he is re|mov'd personali objectione from pleading such Point. For the Law encourages no Man to stand in the Way of his Neighbour, un|less his own Interest be at Stake.

This personal Objection is express'd common|ly by the Name of JUSTERTII. And the Position runs thus,

"That it is jus tertii to found upon any Alledgance which does not terminate in the legal Interest of the Proponer, but of a third Party."

Which comes in plain English to this,

"Sir, You are not pleading for your self, but for another"

. And this is the true Touch-stone to discover when the Jus Tertii is well or ill found|ed. If the Proponer can show he has any legal Interest, any just Benefit or Advantage in making

the Alledgance, this personal Objection of Jus Tertii can never lie against him.

In the Application of this Doctrine, the greatest Difficulty is in judging, what is a legal Interest; that every accidental or occasional Benefit does not come up to a legal Interest is plain. As to this Matter, all Arguments drawn from possible Con|tingencies are cut off. A legal Interest must be something fix'd; somewhat the Proponer is founded in Law to plead upon, and to be cut out of which, he can subsume upon as an Act of Injustice. This falls to be estimated and judg'd of, by the Situati|on the Proponer is in, from the Nature of his Claim, and Relation to his Party.

For Example, A Nullity of the Execution of a Warning against a Tenant to remove, being object|ed against an Adjudger, whose Adjudication was expired, by another who was not within the Year of him, but both were infeft, the Lords found the Nullity not competent for that second Adjudger to object, unless he were either preferable, or to come in pari passu, and therefore repelled it as jus tertii to him. Fountainhal, Forbes, 30th June 1708. Rule contra Purdie. So far the Matter is clear.

In a Removing against a Tenant, the Defender was not allowed to plead upon the Right of a third Party as preferable to the Pursuer, unless he would subsume upon some Right made to him by the third Party. Erskine, Col. Stuart contra Laird. of Grange. For here the Tenant could not figure the smallest Advantage in pleading upon the Right of the third Party, unless it were, 1mo, A Pos|sibility that the third Party would not turn him out. 2do, That for one Year, at least, he could not, not having given any Warning to the Tenant.

Both which being accidental and contingent, the Law respects not, as not coming up to a legal In|terest, or such a reasonable Benefit, which being cut out off, he can subsume that he has met with material Injustice. Which a Tenant can never say, who is remov'd upon a legal Warning by any Person having a colourable Title to the Lands. All his legal Interest is to pay his Rent securely; it belongs not at all to him to object against the Pursuer's Title, providing ex facie it appear to be good; or to dip into the Question, Whether some third Party may not have a better Title.

The like is observ'd by Colvil, December 1582. Countess of Errol contra Tenants, where a Life|rent being competent to a Lady by her Husband who was only Liferenter himself; in an Action of Removing against Tenants at her Instance after her Husband's Decease, this Exception, that her Liferent was extinct by her Husband's Decease, was repelled, as being jus tertii to the Tenants.

Another Example is mentioned by Spotiswood, voce, Escheat and Liferent, 23d March 1630. Murray contra Commissary of Dunkeld. In a spe|cial Declarator of the Commissary of Dunkeld's Escheat pursued by Mr. Patrick Murray, the De|fender propon'd an Alledgance upon the ordinary Back-bond given to the Treasurer by the Donatar, which bore, that he should not use the Gift to the Prejudice of the Rebel's Creditors. This the Re|bel alledged might be propon'd in his own Name, as well as the Creditors, seeing he was interested to see his Creditors rather paid by his own escheat|able Goods, than that the Donatar should meddle therewith, and the Creditors be obliged to have Recourse to his Lands or his Person. The Lords

repelled this, as not competent to be proponed in the Rebel's own Name. Here the Rebel had a plain and fix'd Interest; but still he was denied the Benefit of the Alledgance, because it was not a legal Interest, sciz. such an Interest or Benefit he was intitled to by Law. Because a Backbond of the Nature mentioned in the Decision can have no Respect to the Advantage of the Rebel, whose Escheat falls in modum poenae, but respects solely the Creditors; and therefore the Creditors may plead upon it, the Rebel never can.

In a Declarator of Property, the Defender, pre|tending no Right in his own Person, was not suffered to make any Objection against the Pursuer's Title, Stair 18, July 1662, Lord Fraser contra Laird of Philorth. Here the Defender, by making the Al|ledgance and removing the Pursuer, could have no other View, but to retain Possession for some Time longer; which is so far from a legal Interest, that it is plainly injustifiable: In respect it is more rea|sonable to give him the Possession, who has some colourable Title, than to allow it to remain with the Person who has no Pretence at all.

And in a Declarator of the Property of Teinds, tho' the Title of the Process was a Progress exceedingly ill connected, and labouring under many Infirmities; yet the Lords sustain'd the Title, in the same Way, as if the Action had been a Reduction and Impro|bation of Land-Rights; and found it to be suffi|cient against naked Heritors pretending no Right to the Teinds of their Lands; and that it was jus ter|tii for them to object against it. The Defenders yielded, that any presumptive Title might do in a Question of Lands, because no Man can pretend the smallest Interest in or to Lands, but in conse|quence

of some Conveyance, some written Docu|ment, which, if he has not, it is indeed jus tertii to object against any presumptive Title in the Per|son of another: But that could never happen in a Question of Teinds, because an Heritor's Right to the Lands, suppose he has none to the Teinds, gives him a sufficient Title and plain Interest to object against any Man's being declared Titular of his Teinds. Which was inforced from these Considera|tions. 1mo, That every Heritor has a Right to have his Teinds declared free, rather than the Pro|perty of any Man; and that because several legal Interests arise to him thereby. 2do, Every Heritor has an Interest, that his Teinds should belong to the Crown, rather than to a Subject; the Exchequer being in use to grant Tacks to Heritors of their Teinds at a very easy Rate; and rather to belong to the Patron, from whom they can acquire at six Years Purchase, than to any other Titular, who can demand nine.

The Question comes precisely here, Whether the Alledgance made for the Defenders, amounted to a legal Interest, such a Benefit as it was unjust to de|prive them of? That it is a legal Interest, the Court was of Opinion, 29th November 1710, Mitchel con|tra Baillie and Shearer, observed by Forbes, where a Charter of Adjudication of the Teinds of certain Lands, with Infeftment thereon, was not found a sufficient Title to oblige the Heritor of the Lands to make Payment of the Teinds, without producing the Adjudication itself, and instructing a Right to them in the Person of him they were adjudged from, albeit no other Right appeared to com|pete.

A Vassal being pursued by a Purchaser of the Superiority, made this Defence, That the Seller's Relict was infeft as conjunct Fiar, and that he the Defender was bound to acknowledge none other for his Superior during her Lifetime; which was sustained Colvil.—May 1583, Laird of Capringtoun contra Laird of Caldwells. This Alledgance was not jus tertii; because Vassals have a legal Interest to keep their Charter-chests shut against every one but their proper Superior.

Having thus given a general Idea of my Sub|ject, the Application thereof will best be seen by In|duction of particular Cases. Which, for Clearness Sake, I shall range under different Heads.

POSITION I.

A Debitor, pursued by an Assigney, is founded in an Interest to alledge, that it appears ex facie scripturae, or is otherwise necessarily consistent with his Know|ledge, that there is no Right in the Assigney's Person, because, in this Case, he cannot pay safe|ly. But if ex facie scripturae, by the Production, it appear, that the Assigney's Right is founded, the Debitor cannot be allowed to plead upon any Exception to take away the Assigney's Right, un|less it be so notorious, as necessarily to superinduce a mala fides. Such an Exception is jus tertii as to him, he has no Interest in it; all his Concern is to pay safely, and he pays safely when he pays to the Man who has the Face of a Title, especially interposita authoritate praetoris.

As to the first Branch of the Position, see Durie March 5. 1624, Ramsay contra Mackieson. Here

a Debitor being pursued by his Creditor upon a Bond, it was found competent for him to propone this Alledgance, That the Pursuer's Escheat was gifted, and the special Declarator intimated to him the Debitor; which Declarator, though afterwards passed from as to him by the Donatar, was equiva|lent as if the Pursuer had been denuded by an As|signation intimate; and therefore he could not pay bona fide.

As to the second Branch, see Durie, 21. Decem|ber 1621, Hamilton contra Durham; in which this Exception proponed by a Party in whose Hands Arrestment was laid, was repelled, as being jus tertii, sciz. That the Arrester could not demand the Sum to be made furthcoming, in regard he had recovered Payment from the common De|bitor.

James Ballantine took a Bond payable to him|self, and after his Decease to _____ _____ Ballantine his Son; John Ballantine's Name was afterwards filled up in this Bond, though he was born after the Date thereof; and he was found to have good Action as a Substitute against the Debitor, who had no Interest to debate how John's Name came into the Bond, that being jus tertii, seeing there was no other Heir or Child pretending Right. Stair, Dirleton, 5. January 1675. Ballantine con|tra Edgar.

A Debitor objecting against the Donatary of his Creditors Forfeiture, That the Creditor himself was only an Executor, which, being an Office, could not be assigned, far less could be carried away by the Forfeiture, except as to the Executor's own Share; the Lords found this Alledgance jus tertii to the Debitor, and therefore repelled it. Fountain|hall

4th November 1686, Graham contra Lin. There may be some Doubt as to this Decision. The Pursuer here had not even a colourable Title. The Defect appeared ex facie scripturae. It seems incumbent upon a Defender to take Notice of such a Defect, and upon the Judge to sustain it for the Benefit of those who shall really be found to have the jus exigendi.

POSITION II.

It is not jus tertii in a Defender to found upon the Right of a third Party, when the Intent is on|ly to make out, that he himself is not liable.

In a Pursuit for liquidating the Avail of a Mar|riage, it being alledged by the Donatary, That it was jus tertii for the apparent Heir to say, that his Father died not in the Fie, as being denuded by an Adjudger who was publickly infeft, unless that Adjudger would appear and defend; the Lords found, That it was not jus tertii, but com|petent to the apparent Heir to found upon it. Fountainhall, 13. February 1707, Lord Rae contra Innes.

POSITION III.

When Payment is offered to a Creditor, it is jus ter|tii for him to object, that the Person is not en|titled to make the Offer; because a Creditor is bound to accept of Payment from whatever Hand.

A Party served and retoured Heir to a Defunct, offering to redeem an Adjudger, who alledged, that

the Party to whom the Heir was retoured was pre|sumed alive, his Death not being instructed; the Lords found, That the Alledgance was jus tertii to the Adjudger, and sustained Process at the Heir's In|stance upon the Retour produced, in regard there was no nearer Heir quarrelling the same, 27. July 1688, Hay contra Dobbie. The Matter comes here, An Adjudication within the Legal, which was the Case here, being only a Security for Debt, may be extinguished by whoever offers Payment. After Ex|piration of the Legal, when it becomes a Right of Property, the Adjudger is not bound to debate the Relevancy of Objections tending to annul his Right, or open the Legal, unless with a Person connecting a good Title to the Lands.

In the Redemption of a Wadset by an Appri|ser of the Reversion, it was found jus tertii for the Wadsetter to alledge, the Apprising was fallen by Prescription. Fountainhall, 7. November 1704, Ni|col contra Park. Here the Prescription might have been interrupted, and it was not reasonable to oblige the Appriser to enter into this Dispute with a Per|son who had no other Interest but to get Payment. But this Matter is not without some seeming Dif|ficulty; for if a Wadset be considered only as a bare Security for Money, there does not a Reason occur why it should not be extinguishable by any Person whatever offering Payment. If it be consi|dered as a Right of Property in Lands, redeemable only by the Reverser himself, and those deriving Right from him by effectual Conveyances; upon that Supposition the Wadsetter ought to be allow|ed to make every Objection against the Title of the Redeemer; and in my Opinion would be well

founded in the Objection of Prescription mentioned in the Case.

POSITION IV.

It is not jus tertii in an apparent Heir to alledge, That the Pursuer has no jus agendi, though the apparent Heir refuses to acknowledge the passive Titles.

The Reason is, That regularly before the Defen|der is obliged to recur to any Defences, the Pursuer must show, that he is founded in his Action; and unless he make out this Point, the Defender is not obliged to say whether he represents or not, being founded in a legal Interest to keep this Matter pri|vate from every one, save the Defunct's just Credi|tors. Thus then, an apparent Heir, without invol|ving himself in the passive Titles, may propone every Objection against the Pursuer's Claim, that arises ex facie scripturae, or that he can otherwise instant|ly verify. Objections indeed that require a Proof, stand upon another Footing: Not that it is jus ter|tii in the Defender to propone them; the Reason why the apparent Heir, after proponing such Objec|tions, is not suffered to deny the passive Titles, is al|lenarly the Hardship upon the Creditor, in obliging him to sustain a long Proof, which cannot possibly be of any Benefit to him, so long as the Defender has in it his Power to deny the passive Titles.

POSITION V.

In a Competition betwixt two Rights to the same Subject, whereof the one, under which my Com|petitor claims, is in it self preferable, it is jus tertii for me to object, That his Progress is not well connected; which is only competent to one having a more compleat Progress to the same Right or Interest.

For Example, A has an absolute good Progress to the Infeftment X. B has but a lame Progress to the Infeftment Y. Yet B is preferred, Y being supposed the preferable Infeftment. And the Rea|son is, It is just to give B who has at least a dou|bious Title, a Preference to A who can have no Pretence, as long as the Infeftment Y is in the Field. The respective Interests produced are ranked accord|ing to their legal Preference. And the Persons claim|ing upon these Interests, if they have any Appea|rance of a connected Title, take their Places ac|cordingly. This being premised, it is obvious, That A can have no legal Interest to impugn B's Progress: For tho' it should be found, That C has Right to the Infeftment Y and not B, that does not benefit A, he can propose to himself no Ad|vantage by gaining the Point; because in that Case, the Judge would prefer C, and not A.

The Right of a Feu Vassal being apprised from him, and the Apprising again dispon'd to another, the Superior's Heir raised Reduction and Improba|tion against the Disponee, and obtained Certifica|tion against the principal Sasine on the original Char|ter

and against the Grounds and Warrants of the Apprising. Notwithstanding of which, it was found jus tertii in the Pursuer, to quarrel the Want of these Writs; in respect that, as Heir to the Gan|ter of the original Feu Charter, he was liable to warrant it. Fountainhall, 1 February 1712. Earl of Forfar contra Gilhaigie: Observed also by Mr. Forbes, as of 31. January 1712. For the original Feu Charter, which was produced, being plainly preferable to the Pursuer's Claim of Property, since he was debarred thereby, it was the same Thing to him, who was Vassal; in that Question he could have no legal Interest.

In two mutual Declarators, touching the Right of a Salmond Fishing, the one produced a Charter from his Majesty, with a well connected Progress, down to the Time of the Competition; the other pro|duced a Right from a Subject of a much older Date, but not well connected, for many of the in|terveening Years; in so much that his Progress, so much of it as was well connected, did not go so far back as his Competitor's. Yet it was found, That the Person deriving Right from his Majesty had no Interest, to object the Want of Mid-couples to the other: And that it was jus tertii, and incom|petent for him to object and obtrude that Defect, unless he derived Right from the same Author, or any succeeding in his Right. Fountainhall, 3. De|cember 1701. Forbes of Watertoun contra Udney.

In a Competition anent the Property of Lands, betwixt a less preferable Interest, and an Adjudica|tion of the preferable Interest, it was found jus ter|tii, in the Party compeating upon the less preferable Interest, to alledge, that the Adjudication was sa|tisfied

and paid, by Intromissions within the Legal, Forbes, 19. June 1713. Murray contra M'lellan.

POSITION VI.

In a Competition, I am not allowed to found upon the Interest of a third Party, as preferable to that of my Antagonist.

The Proof of the immediately foregoing Position is equally applicable to this.

John Murray served himself Heir in general to Alexander Maxwel his Grandfather, and upon that Title did compeat with Neilson of Chaple, who had Adjudications in his Person, led originally against the said Alexander Maxwel, conveyed by the Cre|ditor to Elisabeth Maxwel, and from her to the said Neilson of Chaple. It was contended for John Mur|ray, That Elisabeth Maxwel the intermediate Au|thor had disponed these Apprisings to her Husband Gilbert M'Cartney; and that therefore Neilson's Right was null, as granted a non habente potesta|tem. The Lords found it jus tertii, for John Mur|ray, to found upon the Right of Gilbert M'Cartney, unless he derived Right from him. This was found anno 1727. in the Competition Neilson of Chaple and Lanerick of Ladylands, with John Murray. Here the Objection against Neilson, viz. That his Author was denuded, and consequently that he could have no Right, was in it self good: But then his Competitor was not allowed to found upon it, because he could shew no legal Interest therein. For what if Neilson's Right should be found null? That would signifie to M'Cartney indeed, if he pleased to

appear, but nothing to Murray, who was at any Rate excluded by the Adjudications, whoever had Right to them.

POSITION VII.

But as Law allows me to use every Argument tend|ing to annull or cut down the Title upon which my Competitor founds, when the Consequence is to prefer my own Title, it is not Jus Tertii to found upon the Interest of a Third Party, when it tends to prove, not that the Third Party is preferable, which would be Jus Tertii, but that I my self am preferable by the Nullity of my Competitor's Right.

X is infeft in Lands. He gives a Disposition con|taining Procuratory to A, who assigns, first to B, and then to C; but C. is first infeft. Betwixt the Dates of these two Infeftments, X grants a Second Disposition to D, who obtains himself infeft prior to B, but posterior to C. Upon the Supposition, That a personal Conveyance denudes of a personal Right, quaeritur, How is this Matter to be extricated? B is preferred to C upon the Footing of this Brocard, A being supposed entirely denuded by his first Assig|nation in Favours of B. C is preferred to D, as first infeft, and D to B, for the same Reason. And thus the Matter becomes plainly inextricable, unless D be allowed to plead that C's Infeftment is null, as flowing a non habente potestatem, his Author A being ab ante denuded in Favours of B. The Dif|ficulty in this Cass is, That it is jus tertii for D. to plead upon B's Assignation. The Answer is, That this very Example must show it not to be jus tertii; Since the Consequence would plainly be to make the

Affair inextricable, which is a downright Absurdi|ty. To take a general View of the Matter, it appears without Controversy, that D is the Man who is first legally infeft, and who has first denuded the common Author X. Now if this be the plain Mat|ter of Fact, I can see no good Reason why D should not be allowed to found upon it. It is a Rule in our Law, that alii per alium acquiritur obligatio; the Principle upon which this is founded will equally support another Rule, that alii per alium acquiritur exceptio. And when we consider the Nature of this Objection of jus tertii, the Difficulty will evanish; according to the Definition, it arises from pleading a Point, wherein the Party has no Interest, and the gaining of which cannot profit him. The direct contrary is the Case here, for if C's Infeftment be found null, D comes in of Course.

To explain this Matter further, let us take a View of a Decision observed by Forbes 18th Dec. 1708. Colonel Erskine contra Sir George Hamilton; in which a Person having a real Right in Lands, was allowed to object against a competing Adjudi|cation, that it was null, as being led upon a Bond payed by the Debitor; albeit he who quarrelled the Adjudication, derived no Right from the Person a|gainst whom it was led.

This Decision is obviously well founded; and yet therein we see a Party allowed, to found upon the Deed of a third Person with whom he does not con|nect, viz. the Payment made to his Competitor by the common Debitor. And he is allowed to do so, for this precise Reason, that thereby he comes to establish a Preference to himself. Now I can see no Difference betwixt this Decision and the Case in Hand. In both a Party is allowed to found upon

the Deed of a third Person with whom he has no Connection; and in both he has equally a legal Be|nefit in so doing. In a Word, there is nothing more common in Law than to see People founding upon the Deeds of third Parties; such Alledgances cast up in a thousand Shapes every Day: If they can shew no legal Interest in so doing, it is jus tertii they are debarred personali objectione: If they can show a legal Interest, they ought to be heard. This is also fortified by the Doctrine contained in Position II. for if a Defender can found upon the Right of a third Party, in order to obtain absolvitor, for the fame Reason may a Competitor found upon the Right of a third Party to obtain Preference.

Another Case is related by Lord Stair 22d July 1668. Johnston contra Arnold, to this Purpose; In a Competition betwixt two Apprisings, whereupon Infeftment had followed, both led before the Act bringing in Apprisers pari passu; The first Appriser was also first infeft: But it was objected against the Infeftment by the second Appriser, that it was null, being in Name of an Assigney to the Apprising, who did not appear to have any Right, no Assignation being produced. This the Lords fustained, and did not find it jus tertii to object the Want of the said Assignation.

N.B. The Competition run betwixt the second Appriser and the Heir of the first Appriser, who had also in his Person a Conveyance from the Assigney, in whose Name Infeftment was taken.

POSITION VIII.

Where an Alledgance tends not to make my Party's Title absolute ly null, but only reduceable or annul|lable at the Instance of a third Party, it is jus ter|tii for me to found upon it.

For Example, a Donatar of Ward and Non-en|try pursuing the Vassal for the Non-entry Duties fallen due several Years after elapsing of the Ward; this Gift of Non-entry continues but three Terms after the Ward in Competition with the King or another Donatar, but is still good against the Vas|sal; and therefore it is reckoned jus tertii for him to found upon it. Haddington, 6th July 1611. Dick|son contra Laird Dawick; A Spuilie was sustained, altho' at committing the same the Party injured was at the Horn, it being found jus tertii to the Defen|der, to alledge, that the Action in that Case was competent only to the King and his Donatat. Mait|land, 16th June 1552, Laird Kinfauns contra Laird Craigie. The Reason is, That Denunciation does not ipso facto divest the Rebel of his Moveables; he re|mains still Proprietor until the King pleases to take the Benefit of his Rebellion. And therefore the Decision would probably have gone otherwise, if the Defender could have subsumed upon a general or special De|clarator at the Donatar's Instance. In a Process at a Minister's Instance for his Stipend, it was objected by the Heritors, that he was not duely admitted by a Presentation conform to the Statute 10. Annae re|restoring Patronages; this was found jus tertii to the Heritors, being competent only to the Patron himself. Forbes 18th June 1714, M'Bain contra

Laird of Scatwell. In a Reduction of a Sub-tack u|pon this Ground, that by a Clause therein, if the Sub-tacksman failed in paying of his Tack-duty at certain Terms, the Tack should be null; this Nul|lity was only found competent to the Tacksman him|self Setter of the Sub-tack, not to the Master; in Re|spect it was not an absolute Nullity, but in Favours of the Tacksman, if he pleased to lay hold upon it. Durie, 13th Dec. 1626, Earl of Galloway contra M Culloch.

It may be worth Notice, that this Position does not so directly come under the Doctrine of jus tertii. In the Decisions just now mentioned, the Alledgean|ces were repelled, not so much upon the Footing of a jus tertii, that the Proponer had no Interest to make them; but truly because they were by no Means con|clusive, did not infer what they were brought to prove, which above all is plain from the last menti|oned Decision, in which there was not wanting a legal Interest to found the Proponer in his Alledg|ance of Nullity; he failed only in this, That it was not found to be a Nullity: There is a wide Diffe|rence betwixt a null Right, and a Right annullable; a Nullity in a Right may be pled upon by every one who can show an Interest in the Question; the Pow|er of annulling, by no Mortal, but who is vested with the Power.