The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ...

TITLE XXIII. Assignations, Where, of Arrestments, and Actions for making Forth∣coming.

• 1. The several Conveyances of Rights.
• 2. What Rights are not Transmis∣sible.
• 3. The rise of Assignations.
• 4. The Tenor of Assignations.
• 5. The conveyance of blank Bonds, &c.
• 6. The rise and effect of Intimations.
• 7. The several ways of Intimation.
• 8. What Assignations are perfected by possession, without other Intima∣tion.
• 9. Other supplies of Intimation.
• 10. Intimations to more, correi de∣bendi.
• 11. Intimation is not necessary to Rights Registrate, for publication, as Reversions, &c.
• 12. Nor to orders of Merchants.
• 13. Nor to Judicial Assignation, by Appryzing, &c.
• 14. Nor to the Legal Assignation, Jure Marid, by Marriage.
• 15. Nor against the Cedent, his Heirs or Executors, even though Credi∣tors.
• 16. To what Rights Assignations 〈◊〉〈◊〉
• 17. Assignations carry Inhibitions follow∣ing on the rights Assigned, albeit not exprest in the assignation.
• 18. In what cases the Cedents oath proves against his Assigney.
• ...

• 19. Assignations intimat before the Ce∣dents death, gives summar execu∣tion without Consirmation.
• 20. All exceptions against Cedents be∣fore Intimation, are Relevant a∣gainst assigneys, to personal Rights or Tacks.
• 21. The effect of Back-bonds, Dischar∣ges, or Assignations of Dispositi∣ons, before Infeftment or Appry∣sings, during the Legal.
• 22. Assigneys by Tutors have no exe∣cution till the tutor Counts be made.
• 23. How far Assigneys to mutual Con∣tracts may be debarred till perfor∣mance of their Cedents part.
• 24. Arrestment may be granted by all Judges Superior or Inferior, and how far they are effectual before other Courts.
• 25. The effect of Arrestments made in the debitors own hand.
• 26. Arrestment is personal and doth not burden the Successors of him in whose hands it is made, but is valide against the Successors of the Debitor.
• 27. Arrestment is not effectual for, or against Heritable sums by In∣feftment, but against the same, when made moveable, or any other moveable sums.
• 28. Rents or Annualrents are alwayes arrestable.
• 29. The effect of arrestment of Rents, Annualrents, or other sums laid on before the Term of pay∣ment.
• 30. The effect of Arrestment laid on in the hands of Factors.
• 31. Arrestment extends only to the debts due by him, in whose hands it was laid on.
• 32. Arrestment makes the Subject 〈◊〉〈◊〉
• 33. The Order and Tenor of lousing ar∣restments.
• 34. In what cases Arrestments laid on for sums due by Decreets, are lousable or not.
• 35. The effect of lousing Arrestment.
• 36. The order of Actions for making forthcoming.
• 37. Exceptions in the Actions for ma∣king forthcoming.
• 38. The effect of Arrestments for ma∣king Moveable Goods forthcom∣ing.
• 39. The effect of Arrestments of sums.
• 40. He to whom payment is made af∣ter Arrestment, is lyable to Re∣store.
• 41. The oath of parties in whose hand Arrestment is made, must de∣pone specially what he then ow∣ed, and when he payed.
• 42. The Decreet for making forthcom∣ing, doth only transfer the Right to the Arrester of the Goods, or sums Arrested.
• 43. But Assignations do transfer the Right, when Intimat, with∣out farther diligence, and so is preferable to all posterior Arrestments, and respect is had to priority of hours, if exprest in the Intimation.
• ...

• 44. If the Arrestment be prior to the Intimation, it is preferable, not failing diligence.
• 45. How Assignations are compleated by Intimation, Citatien, Charge, Possession or Corroboratien.
• 46. The preference of Arrestments in Competiticu.

HAVING now gone thorow all the seve∣ral kinds of privat Rights, both as to their Nature and Constitution, and as to their Extinction and Distitution; We are come to the second part of our Design propos∣ed, the Conveyance and Transmission of these Rights, which stand in force and are not exstinct; for the extinction of a right is no conveyance of it seing thereby it ceasseth to exist.

1. Rights are Conveyed, or Derived, either amongst the living, or from the dead; and in both, the Conveyance is different, in personal and real Rights: And in Immoveable and Heritable Rights, the Conveyance amongst the living, of personal Rights, is by Assig∣nation; of real Rights by Dispofition, and promiscuously of both by Con∣fiscation: Conveyance of Right from the dead, is by Succession, in Moveables by Executry; in Heritable Rights, by the succession of Heirs, and other like successors; of which in order.

2. Personal Rights or Obligations, are sometimes incommunicable, and not assignable, or transmissible, either by reason of the matter, such as most con∣jugal and parental Obligations are, or where there is a singular consideration of the person, as in Commissions, Trusts, &c. Most of these are Intransmis∣sible, even by the consent, both of Debitor and Creditor: Yea, generally, all Obligations are Intransmissible, upon either part directly without the con∣sent of the other party, which is clear upon the part of the Debitor, who can∣not, without consent of the Creditor, liberate himself, and transmit his Ob∣ligation upon another, though with the Creditors consent he may, by dele∣gation: Neither can a Creditor force his Debitor to become Debitor to ano∣ther, without his own consent, as when he takes him oblieged to pay to him or his assigneys.

3. Yet, that Obligations may become the more useful and effectual, Cu∣stome hath introduced an indirect manner of transmission thereof, without the Debitors consent, whereby the assigney is constitute Procurator; and so as Mandatar for the Creditor, he hath power to exact and discharge, but it is to his own behove, and so he is also denominat Donatar, and this is the ordinary conception of Assignations. The like is done amongst Merchands, by an order, whereby the Debitor is ordered to pay such a person; the debt, which indeed is a Mandat, but if it be to his own behove, it is properly an

Assignation; and in savours of Creditors, Law hath introduced judicial As∣signations upon arrestment, and by appyzing and adjudication.

Assignations are more frequent with us then any where, there is scarce men∣tion thereof in the Civil Law: It is also called, Cessio, which both there and with us, is most applyed to Cessio bonorum & actionum; where not only Obli∣gations, but property of things: and generally, all Rights are ceded from the Debitor to his Creditor; from this Term the, the assigney is also called Ces∣sioner, as the assigner is also called Cedent.

Under Assignations are comprehended Translations, being Transmissions from a prior assigney to a posterior; or Retrocessions, which are returning back of the Right assigned from the assigney to the Cedent, which are also cal∣led Repositions.

For clearing the matter of Assignations; First, consider the requisites to make them perfect and valid Conveyances. Secondly, what are the effects and ex∣tent thereof.

4. For the first, an assignation doth necessarly require the clear expres∣sing of the Cedent assigney, and thing assigned; and though the ordinarly Stile of it be known, yet any terms that may express the transmission of the right assigned from the Cedent to the assigney, will be sufficient, as if the Ce∣dent assign, transfer and dispone make over, set over, gift or grant the thing assigned to the assigney, or nominat or constitute him his Cessioner, assigney, donatar, or procurator to his own behove; and therefore, an assignation to a Bond, was found valid, both against principal and Cautioners, both being in the dispositive Clause, though the Cautioners were omitted in the Clause (with power, &c.) which was not, though a necessary clause, Decem. 12. 1622. Johnstoun contra Jack.

5. The conveyance of Bonds or other Writes, wherein the name of the Creditor or Acquirer is left blank, have become of late very frequent, and have occasioned many debates, as to the Conveyance of such Rights, and the effects thereof: As first, Whether the leaving the name of the Creditor or Acquirer blank be warrantable, or a fraudulent conveyance, to conceal and keep in the dark, to whom the right belongeth, that Creditors may not know to affect it by legal diligence: The reason ordinarly given for taking Writes in that way, is to shun the trouble of assignations, translations or inti∣mations thereof, as they pass from hand to hand, according to that Tenor of Obligation, frequent in other places, whereby the Debitor oblieged him to and perform such things, latori presentium; by which he is oblieged to pay to none, but he may get up the Bond, and safely pay to any that hath it.

There is another reason of taking blank Bonds to shun compensation upon any debt due by the Cedent; for the Law alloweth compensation against the assigney, upon any debt due by the Debitor to the Cedent, before the assig∣nation was intimate: But when the Debitor gives a Bond blank in the Credi∣tors name, he is thereby understood to pass from compensation, which hath been sustained, Vide Title 11. upon compensation, for it is a just personal ob∣jection against him who granted the blank Bond, not to stop the effect or exc∣cution thereof, upon any other debt due by him to that party, to whom he granted the Bond. And albeit such blank Bonds may pass amongst Merchants,

where intimations are not necessary upon Bills of Exchange, which are trans∣mitted by the orders of Merchants thereupon without intimation: and though such Bonds may pass amongst persons of intire Credit, yet such conveyances, if they should be encouraged, and pass currently without intimation, would be of dangerous consequence, and give occasion to much fraud; for thereby Creditors should not know in whose person such rights stood and how to af∣fect them for just Debts: And although the granter of such blank Bonds, or the haver, who so transmits them, may be excluded from compensation: Yet others who may have interest to propone compensation in the same way, as they may found upon a Discharge granted by the receiver of the blank Bond to the Debitor therein, cannot be excluded from alledging compensation, there being no personal objection against them. And likewise, Conveyances without a Cause onerous, in prejudice of anterior Creditors, by persons in∣solvent and fraudulent; so that if either the first receiver of such blank Secu∣rities, or the posterior receivers thereof be insolvent, and without an equiva∣lent Cause onerous, do transmit such blank Securities, only by delivering the same, the intermediat havers can hardly ever be known, whose Creditors might affect the right while in their hands, &c.

Upon which consideration, the first occasion that occurred to the Lords, being a blank Bond, granted by Marjory Sandilands, and delivered to Samu∣el Veatch, he did deliver the same to Marion Geddess, who filled up her name in the blank left for the Creditor, and registrate the Bond against Sandilands the Debitor; yet Tailziefer who was Veatches Creditor, having arrested all sums in Sandilands hands, due to Veatch in the competition, betwixt Tailziefer the arrester and Geddess, whose name was filled up in the blank, and the Bond registrate in her name before the arrestment, the sum remaining yet unpayed in Sandilands hands, the arrester was preferred, in respect that albeit Geddefs name was filled up in the blank Bond, and it so registrate before the arrest∣ment; yet the delivery of the blank Bond by Veatch to Geddess, being in ef∣fect an assignation, was found to require intimation; and therefore, Tailzie∣fer the arrester was preferred: In this case Veatch, who was first Creditor, was insolvent.

And albe it the Lords in the competition betwixt Thomas Hendrison and Da∣vid George, decided, Jan. 18. 1668. preferred Hendrison, whose name was in the Bond as Creditor, and who offered his oath for clearing, whether the bond was blank, ab initio and when filled up, yet the Lords did not leave it to his oath, but took witnesses, ex officio, who proved that they saw the Bond filled up with Henriesons name before the arrestment laid on by Thomas George, in the hands of the Debitor, as due to Short his Creditor before the arrest∣ment, yet there was nothing adduced to prove that ever the Bond had been blank, or delivered to Short. And likewise, a Bond blank in the Creditors name, being delivered by the receiver of the Bond to a Creditor of his, in sa∣tisfaction of his debt, the same was found relevant to be proven that the blank Bond was delivered before the Declarator of Escheat of the party, to whom it was first delivered in satisfaction of a Debt due by him before he was de∣nunced, Decemb. 19. 1676. and Jan 17. 1677. Lord Bamff contra Grant of Rosasolis.

There hath been nothing done since to take off the necessity of a formal in∣timation made to the Debitor, of the filling up of the Creditors name upon production of the Bond, it self showing that name to be filled up; and there∣fore,

any arrestment upon the Debt of the person to whom the Bond was first delivered as Creditor, or to his own behove, or for the Debt of any other per∣son, in whose possession it came for his own behove, before the said intimation will prefer the arrester.

As to the manner of probation, that the Bond was blank, ab initio in the Creditors name, it is a strong evidence that it is written with a hand different from the body of the Bond; for though blank draughts of Bonds be frequently drawn up by Writers and Nottars, leaving the sums, the names of the Debi∣tor and Creditor blank, which are filled up by any that makes use of the draught, yet at the subscription, the filler up of the sum, the Debitor and Creditors name should be exprest; for these are more Substantial then all the rest of the Bond, so that if the Creditors name be not filled up with the hand that wrote the Bond, or of him who insert the date and witnesses; it will be pre∣sumed to have been blank; in which case, the Debitors oath may be taken, to whom he did deliver it for his own use, and that persons oath to whom he did deliver the same, whereby the progress of it, till it come to him whose name was insert, will be found out; and upon this ground a Disposition of Lands bearing to be to two persons for themselves and other Creditors of the Dispon∣ers after-specified, after which, there were several lines written with another hand, inserting particular Creditors and sums, without mentioning of the fil∣ling up there, or at the Date of the Write; therefore an Inhibition by a Cre∣ditor of the Disponers, was sustained to reduce the right, of these Creditors filled up in the blank, as presumed to be filled up after the Inhibition, although the date of the Disposition was before the Inhibition, unless it were proven by witnesses insert in the Disposition or others above exception, that the blank was so filled up before the Inhibition, Jan. 15. 1670. Lady Lucia Hamiltoun contra the Creditors of Monkcastle.

These blank Bonds are so little favoured, that when the Debitor depones that he is only debitor by a Bond blank in the Creditors name; which he did deliver to such a party for his own use, but knows not now who hath the Bond; and consequently to whom he is debitor, it will not liberat him from the debt of that party to whom he did deliver it, though it may make him lyable to double payment to that party, and to him who hath the Bond, it be∣ing his own deed in delivering the Bond blank in the Creditors name, which infers that hazard: Yea, if the Debitor should depone that the Bond was blank, abinitio, and delivered to such a party, but afterwards it was shown to the Debitor, filled up in the name of such another party, before the ar∣restment, whereby he became debitor to that party, and not to the first; it is not like that quality will be respected, unless he depone that he had payed before the arrestment; for in Veatches case, the filling up of Geddess name was unquestionably offered to be proven, that the Bond was registrat in Ged∣dess name, before the arrestment, which is much stronger probation then the oath of the debitor.

A blank Bond being lost, and referred to the debitors oath, who confes∣sed the same, and both parties agreeing upon the date, sum, and witnesses, the debitor was decerned to pay the sum to the pursuer, to whom he had de∣livered the blank Bond upon Caution, to refound, in case he were distrest upon a Bond, containing, the same sum, date, and witnesses, June 27. 1676. Elizabeth Gibson contra Fise. The like was done at the instance of the

Executors of the person to whom the blank Bond was delivered, Jan. 4. 1678. Peebles contra Tennents of Rossie.

6. The Assignation it self is not a compleat valid right, till it be orderly intimate to the debitor, which though at first (it is like) hath been only used to put the debitor in mala fide, to pay to the Cedent, or any other As∣signey: Yet now it is a solemnity requisite to Assignations, so that though the debt remain due, if there be diverse Assignations, the first intimation is preferable, though of the last Assignation. and that not as a legal diligence, which can be prevented and excluded by another diligence, but as a full ac∣complishment of the Assignation, Jan. 13. 1629. Hutcheson contra Kinloch: Jan. 18. 1628, Laird of Halkertoun contra Falconer. But where both Assignations were gratuitous, implying warrandice from fact and deed, the last Assignation though first intimat was not preferred, because the Cedent was Debitor to the first Assigney, by the implyed warrandice against future Facts and Deeds, July 15. 1675. Anna Alexander contra Lundies.

7. Intimation may be by any legal Diligence, as by arrestment, by a charge or process upon the Assignation: Yea, though the process be not sustained, because all parties having initerest, were not called, it will stand as an intima∣tion; but it is most ordinarly by way of Instrument, either by the assigney himself, showing the Assignation, or by his procurator, showing the same with his procuratory, wherein the like solemnities will be requisite, as are in Instruments of premonition and requisition: Of which, Title Wodsets. So an intimation was found null by exception, because one person was both Procu∣rator and Nottar, July 3. 1628. Scot contra Lord Drumlanrig. Neither was an Intimation found sufficient by an Inhibition, used by the assigney against the Cedent upon the assignation, March 14. 1626. Nisbit contra Williamson. where payment made thereafter to the Cedent, was found valid, and done, bo∣nafide.

In this case it was also found, that Intimation will not be supplied by a par∣ties knowledge of the Assignation. The like, June 15. 1624. Adamson contra Mcmitchel: Neither by the Debitors knowledge, though by a pursuite against him upon the Write, containing the Assignation, but in relation to another matter therein, this was in shunning the committing a Clause irritant, Novem. 30: 1622: Sir James Durhame contra Lady Wintoun.

But Assignations to annual, prestations as to Mails and Duties, Teinds or Annualrents or Assignations to rights, requiring possession to compleat them as Tacks, are perfected by use of payment or possession, and need no other Intimation, as was found in the case of the annualrent of an Heretable Bond, where gerting payment of some years, preferred the assigney to a former ar∣rester, though there was no Instrument of Intimation, Jan: 18: 1628: Laird of Halkertoun contra Falconer.

9. And any Write under the debitors hand, acknowledging the production of the Assignation will be sufficient Intimation, as if he give a Bond of Corro∣boration to the assigney, or give Discharges of annualrent, or any part of the principal sum.

10. Where there are many, correi debendi, principal or Cautioners, Intima∣tion made to any will be sufficient as to all; yet this will not exclude payment

made by another of the Debitors, bona fide, to whom no Intimation was made; to secure which, it is safest for assigneys to intimat to all the correi debendi.

11. Assignations to Reversions or Bonds, for granting Reversions, Renun∣ciations of Wodsets or grants of Redemption, being registrat in the register of Reversions, conform to the Act of Par. 1617. require no Intimation, that re∣gister being designed, not for conservation of these Rights, where the prin∣cipals are not detained, but for publication thereof, to all parties having inte∣rest, which is a sufficient Intimation, as was found in the case of an assigna∣tion to the Legal Reversion of an appryzing, December 5. 1665. Begg con∣tra Begg.

12. Intimation being by our proper Custom, so necessary a solemnity, holds not in the Orders which stand for assignations amongst Merchants, Strangers, especially qui utuntur communi jure gentium; and therefore, the first order by a Stranger Merchant, direct to his debitor here, to pay the Debt to the ob∣tainer of the Order, was preferred to arresters and assigneys, using dilgence before him though there was neither Intimation of the Order nor acceptance by the debitor.

13. Neither is Intimation necessary to Judicial assignations by appryzings or adjudications, March 25. 1635. Lord Yester contra Innerweel. Hope assignati∣ons, Idem, appryzings, Bruce contra Buckie: So that if the debt remain due, the first appryzing or adjudication, without Intimation will be preferred; but seing there is nothing to put the debitor in mala fide, payment made bona fide, will liberat the debitor.

14. Marriage also is a legal assignation, requiring no Intimation for there∣by all the Moveable rights of the Wife are stated in the Hushand, Jute mariti, without other Intimation then the Marriage: Yea, Intimation was not found necessary to a Reposition of the assigney to the Cedent, seing the assignation was by a wife in her Contract of Marriage, which requires no Intimation but the Marriage; and therefore the Husbands reposition to her needed no Intimation, Decem. 2. 1674. Beatrix Craig contra Wedderly.

15. Though in the cases aforesaid, Intimation be a necessary Solemnity to assignations, yet the assignation alone will be sufficient against the Cedent, if he should quarrel it, because he is author thereof, and can do no Deed contrary thereto: Yea, it was preferred to an Executor Creditor of the Ce∣dents, even as to his own Debt, July 27. 1669. Exeutors of Mr. Thomas Rid∣peth contra Home.

As to the extent and effect of assignations, the same extends to all personal Rights, whether Moveable or Heretable, as to Bonds, Liferents, Tacks Re∣versions, Mails and Duties, Annualrents, and to Dispositions of Lands and others, till Infeftment follow, but is no valid conveyance of any Right com∣pleated by Infeftment except Liferents, which can have no subaltern Infeft∣ment, as to the ground right it self, though it may extend to the profits there∣of, as to Mails and Duties, and annualrents, and to these no longer then the right by Infeftment stands in the Cedents person, whence there ariseth to him and to his assigney, a personal obliegement upon the possessors, which faileth, as to all Terms after Denunciation, Decem. 17. 1622. Kinbrachmount contra Sir William Anstruther: and an assignation to such a sum yearly out of Teinds

was found excluded by an appryzing of, or assignation to the Tack of these Teinds, Feb. 6. 1666. Watson 〈◊〉〈◊〉 Pleming.

Assignations are effectual, not only of such rights as are granted to heirs and assigneys, but generally to all Rights, though not mentioning assigneys, which by their nature are transmissible; and therefore, an annualrent by a Fa∣ther to his Daughter, wherein his Brother and Sisters were substitute, failing the heirs of her Body, without mentioning her assigneys, and wherein the an∣nualrent was redeemable, by payment of a principal sum, which she had no power to require, unless she were Married; the annualrent was found to be∣long to her assigney after her death, being principally constitute, and not ac∣cessory to the principal sum, June 24. 1679. Sir William Stuart contra Sir Tho∣mas Stuart: and albeit Superiours be not oblieged to receiye singular Succes∣sors without appryzing or adjudication; yet before Infeftment, assigneys to the Disposition, granted by the Superiour, may compell him to receive the assigney, which was so found, though the Superiour alledged, that the Su∣periour was not in good Terms with him, Decem. 23. 1673. Ogilbie contra Kinloch of Bandach. But Reversions and Tacks in most cases unassignable, unless they be granted to assigneys; for albeit the Assignation being a procu∣ratory, may give them interest to act procuratorio nomine, for the Cedent; yet they cannot act proprio nomine, as Procurators, in rem suam; therefore the oath of the Cedent will always be competent against them, and they cannot obtain Declarator of Redemption, in their own name or Decreet, for de∣nuding of the Wodsetter, in their favours: Neither can Assigneys to Tacks enter in possession, by vertue thereof: Yea, Liferent-rights by Infeftment or Tack, were so peculiar to the Liferenter, that no assignation can state them in the assigneys person, but only the profits thence arising: So that in the as∣signeys person, they are not Liferents; and therefore, the Liferents of Wives, which belonged to their Husbands, jure mariti, as a legal Assignati∣on, fall not under the Husbands Liferent-escheat, as they would fall under the Liferent of the Wife unmarried, but under the single Escheat, Vide title 〈◊〉〈◊〉 upon Escheat: Upon which ground, Hope upon Assignati∣ons, observes, that Assignations to Liferent-tacks, make them fall under the Assigneys single Escheat, in the case of Sir Robert ker contra John Ker.

17. Thirdly, an Assignation to a sum, carries with it the Inhibition raised thereupon, Hope Assignation, Walter Hay contra Mark Ker. The like, where only all actions following thereupon were exprest generally, June 28. 1610. Blair contra Gray. And an Assignation to a Bond, found to carry a Bond of corroboration of the foresaid Bond, though not mentioned therein, albeit the Assignation bore not, that ordinary Clause (with all that has followed, or may follow thereupon) which is but an Explicatory Clause of Style of that which, innest dejure, February 3. 1676. Bultie contra Earl of Airly.

18. Fourthly, The effect of Assignations is, that the oath of the Cedent can∣not prove against the Assigney, unless the matter hath been litigious before the Assignation or Intimation, as in the case after arrestment, has been laid on; and therefore, a debitor having pursued the Cedent to annul the Band, upon a reason to be verified by the Cedents oath, before the Assigney had Intimat the Cedents oath was sustained, February 15. 1662. Pitfoddels contra Glenkindie. And an Assigney pursuing in the Cedents name, and not in his own, albeir he produccd his Assignation in the Process; yet there being no other Intimation

thereof, the Cedents oath was admitted against him, Feb. 12. 1678. Fira∣zer contra Frazer of Strichen, July 26. 1628. John Rule contra Laird of Aitoun.

Or if the Assignation be gratuitous without a Cause onerous, the Cedents oath will be competent in all cases against the Assigney, June 16. 1665. Wil∣liam Wright contra George Sheil: June 13. 1668. Jack contra Mowat: But the oath of the Cedent will prove against the Assigney in England, as to As∣signations made by residenters there, June 28. 1666. Mcmorland contra Wil∣liam Melvil.

19. Fifthly, Assignations being intimat during the Cedents Life, having summar execution, and the Assigney got protestation against a Suspension rais∣ed against the Cedent, after the Cedents death, without walkning or trans∣ferrence and thereupon all execution would proceed summarly by Horning, Poynding, Appryzing, even after his death, Hope assignation, Lady Craigmil∣ler contra Stevinson: Otherways it will yeeld but an ordinary action, Jan. 23. 1624. inter eosdem. The same was found, and that there needed no con∣firmation, July 27. 1664. Mr. John Murehead contra Yea, though it was an Assignation by a Father to his Son, of all his Goods and Debts; yet action was sustained thereupon without Confirmation, June 25. 1663. James Halyburtoun contra Earl of Roxburgh. But where there was no delivery, the Assignation of all the Goods was not found to give action with∣out Confirmation, June 23. 1665. Procurator-fiscal of Edinburgh contra Tho∣mas Fairholm. Or where there was reservation to the Disponer, to dispone otherways during his life, July 4. 1665: Commissar of Saint Andrews contra Hay of Bowsie. But since the Restitution of Bishops, and reviving of the Quots: actions are sustained upon Assignations, not intimat in the Cedents life, if they be special, the pursuer always confirming before the Decreet be Ex∣tracted.

20: Except in the Matter of Probation, all Exceptions competent against the Cedent before the Assignation or Intimation, are relevant against the as∣signey, as payment, compensation, &c. which was found, even as to assig∣neysto Tacks, that the Tacks-mans Back-bond was sufficient against his singu∣lar Successor by assignation, Decem. 18. 1668. Mr. Robert Swintoun contra John Brown: This is clear, when exceptions relates to the matter in Que∣stion.

21. Assignations to incompleat real Rights, as Appryzings, Dispositions of Lands before Infeftment, are affected with the assigneys Back-bond, if the competition come in before infeftment, Inhibition be used, or legal diligence that makes the matter Litigious; and therefore, the Back-bond of an asigney to an appryzing, was found effectual against his Successors by translation, July 6. 1676. Sir Lodovick Gordoun contra Skeen and Crawford. But the Back-bond of an assigney to a Disposition of Land, not drawn in question till the assig∣neys singular Successor was Infeft upon his translation, was not found effectu∣al against the singular Successor, June 20. 1676. Brown contra Smith: For if assignations, Back-ponds, or even Discharges or Renunciations of redeemable Dispositions of Lands, were effectual against singular Successors in these Lands, after the Rights were perfected in their own persons, or their authors by In∣feftment, it might in a great part disappoint the design of these excellent Sta∣tutes for Registration of Land rights, therefore, unless Inhibition were used,

or the matter made Litigious upon these personal Rights, before Infeftment, they are not habile to affect a real right, or a singular Successor therein; but because appryzings within the legal, may be taken away in the same manner as personal rights; therefore the assignations, discharges and back bonds, by these who have right to the appryzing, being made within the legal, are effe∣ctual, if thereupon the matter be made litigious before the expyry of the Le∣gal Reversion or Inhibition used thereupon, they will be effectual against the singular successors, even after the Legal is expyred, but after expyry of the Legal Infeftments upon appryzings are in the same case as Infeftments upon Ir∣redeemable Dispositions for they are the foundation of the rights of most Lands in the Kingdom, and if personal Rights should make them insecure after the expyry of the legal, it would be of great inconvenience.

22. Assigneys by Tutors to their Pupils Bonds, will have no execution till the Tutors counts be made by the Cedent, Decem. 2. 1679. James Cleiland con∣tra Bailzie of Lamingtoun.

23. It is more dubious and hath been diversly decided, when the excepti∣ons are personal against the Cedent, in mutual Contracts, the Contracter him∣self can have no action unless he fulfil his part; but whether his assigney will be in the like case is the question, which is at large cleared, Tit. 10. §. 16. and therefore shall not be here repeated.

Judicial assignations are oftwo sorts, according to the matter conveyed there∣by, which if it be moveable is conveyed from the debitor to his Creditor by ar∣restment and decreet, for making the arrested sums and goods forthcoming, and if it be Heretable by appryzing or adjudication.

As to the first, that the progress upon arrestment may be clearly taken up; we shall first consider the arrestment it self. Secondly, The lousing of it. Third∣ly, The action for making forthcoming.

Arrestment is a precept or command of a Judge, ordaining the thing arrest∣ed to remain in the same case it is when arrested, till such things be done as are prescribed in the precept, or Letters of arrestment: It is sometimes extended to any preparatory Precept of a Judge, antecedent unto any further process, so the first Citation or securing of persons till tryal were made, or surety found, its called an arrestment or attatchment, as appears in the force of the Crown∣ers arreftments of Delinquents, Par. 1487. cap. 99. Par. 1528. cap. 5. But ar∣restment proceeds most ordinarly upon an Interlocutor sentence, as when par∣ties are contending for Peats, Turffs, or Corn upon debateable Land, these use to be arrested till the mater be decided, whereby the thing arrested be∣comes litigious, and any thing done to the contrary hath the effect of breach of arrestment, and is of the Nature of innovatalite dependente, which therefore must be summarly restored and put in statu quo and brings no advantage but loss to the actor.

24. But arrestment which we are now about, is Precept or Letters of ar∣restment, arresting Debts or Goods in the hands of any party, haver thereof, at the instance of the Creditor of him to whom the Debts or Goods belong to re∣main under arrestment, untill the debt whereupon the arrestment proceeds, be secured or satisfied; therefore arrestments may be granted by all Judges ordi∣nar, Superior or Inferior; but the arrestment of an Inferior Judge was only

found effectual in Process before himself, and before no other Inferiour Judge, March 8. 1634. Smith contra Miller. But upon occasion of this debate, most of the Lords thought an Inferiour Judge might proceed upon the Lords arrest∣ment, passing in the Kings name, and there is not wanting ground to think that an Inferiour Judge may proceed upon the arrestment of another, seing all of them proceed alone upon the Kings authority, as if the defender change his Domicile. An arrestment made by the Inferiour Judge, where hedwelt before, ought not to be ineffectual, nor he necessitate to pursue before the Lords, as was found in an arrestment before the Admiral, March 22- 1637. 〈◊〉〈◊〉 contra Gray. Yet an arrestment upon the Precept of an Inferiour Judge, was found null, because execute without the Jurisdiction of that Judge, al∣though the party in whose hands it was made, dw eltwithin the Jurisdiction, Decem. 5. 1671. Mr. Andrew Miller contra Orsburn, Crawford and the Laird of Bishoptoun. The reason hereof was, no execution is valid, Extra tertitorium Judicis, which doth not conclude against the arrestment of an Inferiour Judge, made within his own Jurisdiction; but that it would be sustained against that party in any Process before the Lords, or any Superiour having cumulative Jurisdiction, or even before a Co-ordinat or Inferiour Jurisdiction, in which, if any question were made, the Lords by Letters of supplement, would readily auctorize the same.

Arrestment requires no other solemnity but the execution thereof, by him to whom the Letters are directed, which requires the like requisites as other executions do: of which hereafter.

25. There hath been an extraordinary form of arrestment, sometime used and sustained, whereby Creditors did arrest the Goods of their Debitors in the Debitors own hand, and thereupon did pursue such as bought from them, whereof there is an instance observed by Dury, Jan. 10. 1624. betwixt the Laird of Innerweek, John Wilkie and the Lady Bothwel, wherein Innerweek having arrested a parcel of Wool in the Lady Botwels hand, upon a debt owing by her to him, and she having thereafter sold the Wool to John Wilkie, who payed the price, he was decerned to make forthcoming the true worth of the Wool to Innerweek, although nothing appears instructed, that there was any Collu∣sion betwixt the Lady Bothwel and Wilkie, but what may be conjectured from the Lords allowing the price of the Wool. This kind of arrestment hath not been drawn in example, for I have found no instance of it observed by any since that time; and as the instance observed, is but the arrestment of one par∣ticular, if it were to be allowed it might be extended to more particulars, even to all the moveable Goods and Means of the debitor, and certainly it would be ordinarly so used; as straitning the debitor more, that he could dispose of nothing, but to the use of the arresting Creditor, and so it would become an Inhibition in Moveables, yet much more inconvenient, because Inhibition must be published at the Mercat Cross, and registrat; whereas arrestment may be done most privatly before two witnesses: And though Inhibitions at first were designed to disable debitors, not only to dispone or dilapidat their Lands or heritage, but their Moveable Goods, as the stile of Inhibition doth still ex∣press, yet experience did early show, that there was a necessity for current course of Moveables, and that it could not consist with Traffick and Commerce, that no man could securely buy Moveables without inspection ofregisters; and therefore, Inhibitions have now no effect as to Moveables, much less should arrestment of the debitors moveables in his own hand, which could with no reason affect the moveables, when disponed for a just cause to third parties,

much less could it infer breach of Arrestment against the buyers after Arrest∣ment; and all the effect it could have, were only to superad upon the Debi∣tor, the penalty of breach of Arrestment thereby to Confiscat all his Move∣ables, whereas there are ordinarly liquidat penalties agreed upon, of consent of Debitor and Creditor.

26. Arrestment being a personal Prohibition, used against him in whose hands the Arrestment was made, if he die it is not extended to his Successors, but they may dispose of the Goods or Sums Arrested, unless it be renewed in their hands, in the same manner as an Inhibition, which is also a legal Prohibition, extending to Heretable Rights as Arrestment doth to Moveables; but though the Debitor whose Goods or Sums were Arrested die, the Arrestment ceasseth not, but the debt being established against his successors, Processmay proceed upon the Arrestment, Feb. 19. 1669: Isobel Glen contra John Home. Jan. 22. 1681. James Riddel contra Mr. William Maxwel.

As to the effect and extent of Arrestments, they can only be laid on, and affect moveable goods or moveable debts, and can only be made use of for sa∣tisfying of moveable debts (what rights are moveable and what heretable, hath been shown in the Title real rights) wherein by heretable, not only these are understood, which are properly so by Infeftment, but also such sums and deeds, as are by destination such, as bearing obliegement for Infeftment or Annualrent, even though the Bond did bear no Clause of requisition; yet it did bear Annualrent, Arrestment, or Appryzing, had been found null there∣upon, unless it had been made moveable by a Charge, July 20. 1622. John Cran∣stoun contra Laird of Eastnisbit. The like, Hope Obligations, Alexander Mo∣rison contra Creditors of John Richardson. John Cranstoun contra Laird of Lug∣toun, Yet the contrary hath also been found in Bonds, bearing Annualrent without Clause of requisition, that Poinding, Arrestment and Appryzing, might proceed without a Charge, July 10. 1629. Laird of Clakmannan contra Barronnie. Jan. 25. 1642. Johnstoun contra James Lotch: But the matter is now cleared by the Act of Par. 1644. cap. 41. renewed, Par. 1661. cap. 51. declar∣ing that all Bonds and Sums, though bearing Annualrent, are Arrestable at the Instance of any Creditor of that person, if Infeftment hath not past actu∣ally thereupon; yet a sum whereupon Appryzing had followed, was found not to be Arrestable by the Appryzers Creditor; and therefore, an Appryzer from that prior Appryzer, though posterior to the Arrester, was preferred Feb. 22. 1666. Lockhart contra Lord Bargonzie. And though they do not so clear∣ly determine upon what Bonds Arrestment may proceed, as against what Bonds or sums it may proceed: yet it bears equally for satisfying of any debt, which though it cannot be extended to Heretable debt, upon which actual Infeft∣ment, is till they be made moveable, yet ought to be extended to all other moveable debts, upon which Infeftment hath not followed, that a pari, as such debts are Arrestable without a Charge, so may they be Arrested for sa∣tisfying of the like debt, without a Charge upon the debt to be satisfied, more then upon the debt arrested for satisfying thereof.

27. Though no Heretable right, upon which Infeftment hath past, can be arrested till it be made Moveable: Yet the rents and profites there∣of, are Arrestable and moveable, December 15. 1630. Ogilbie contra Lord Ogilbie.

28. And so are the bygones of an Annualrent, constitute by Infeft∣ment, for these bygones are as to all effects moveable, though the right it self is heretable, as Fruits falling from a Tree are moveable, though the Tree be not.

29. Yea, Arrestment of Annualrents, or Mails and Duties, is effectual, though laid on before the Term, if the Debitor to whom they belong were not denuded thereof before the Term, the Term being current when it was laid on, March 28. 1624. Brown contra Jan. 15. 1628. Hamiltoun contra Falconer: where it was found that the Arrestment did only extend to the Term current against an Assigney, though not intimating till long after, seing he was a singular successor, and had attained payment of some Terms Annualrent prior to the Arrestment; but it will not extend beyond the subsequent Term, where the Rent is payed Termly, as in silver rents, Hope arrestments, Mr. Ro∣ger Mowat contra Walter Dick. Otherways it will extend to the whole year, in which it was laid on, as in Ferms, which are payed together, Ibid. Thom∣son contra Captain Wishart. Yea, an arrestment of rent laid on before the Term, was preserred to a posterior appryzing, not having Infeftment before that Term, July 2. 1667. William Litster contra Aitoun and Slich. And an ar∣restment laid on, currente termino, was preferred to a posterior assignation to that Term, July 27. 1673. Creditors of Andrew Scot compeating, arrestment is also valid, being laid on upon sums before the Term of payment, Feb. 21. 1624. Brown contra Laird of Johnstoun, eodem die, Rentoun contra Atcheson. But in all these, the execution was superceded till the Terms of payment of the ar∣rested sums were payed, July 3. 1628. Scot contra Laird of Drumlanrig. Yet arrestments ought not to be laid on for satisfying of debts, whereof the Term of payment is not come; Therefore, such an arrestment was excluded by an ar∣restment posterior, which was laid one for satisfying a sum, whereof the Term of payment was come, when it was laid on, July 17. 1678. Lord Pitmaiden contra William and Robert patersons. Yea, it was extended to the price of Lands, though laid on before Write, but after agreement, Hope arrestment Lord Dalhousie contra

30. Neither was arrestment effectual, being only laid on in the hands of the debitors Factor, and not in their own hands for making the same forthcoming for payment of his debt to whom it was due; because Factors are not Debitors but their Constituents, Hope arrestment, William Muirhead and Mcmichael contra William Wallace.

31. Arrestments have never been extended to future Debts or Goods for arrestments, both by their name and nature, do only stop the Debitors goods or debts arrested, to remain in the same condition they were in when arrested, till Caution be found, or Sentence be obtained for making forthcoming. But Inhibitions do prohibite the party inhibite, and whole Lieges to buy from the person inhibite, till the debt be satisfied, which is absolute, and extends a∣gainst all buying or blocking with the inhibite, whether pro acquisitis, or acquirendis.

32. Arrestment orderly laid on, renders the thing litigious, so that an Assignation made thereto, though to a Creditor thereafter, hinders not the arrester to prove the debt by the Cedents oath, Decemb. 10. 1623. Dowglas contra Belshes.

33. As to the second point proposed, concerning the lousing of arrestments, it hath been said before, that the intent of arrestment, is the satisfaction of the arresters debts, by the action, for making forthcoming, which is a judicial Assignation to him, of that which is arrested, or otherways by security, when he whose goods or sums are arrested, findeth Caution, and thereby louseth the arrestment, which is done by supplication to the Lords, and their delive∣rance, which of old, gave warrand to the Messenger to receive Caution, and louse the arrestment; but is well amended by the Act of Par. 1617. cap. 17. annulling that way of lousing arrestments, and ordaining Caution to be found in the Books of Session, before giving out of the Letters, which are not effe∣ctual, when the arrestment proceeds upon a Decreet; and therefore, the Letters express the arrestment to be loused, unless it proceed upon a De∣creet.

34. But if the arrestment proceed upon production of the principal Bond unregistrate, there being then no Decreet of Registration, it may be loused, Feb. 7. 1665. David Graham contra George Bruce and Doctor Martine: Or if the Decreet be turned in a Lybel, June 30. 1675. James Murray contra John Hall: Or if the Arrestment was laid on after the Decreet was suspended? Or if the Term of payment of the sum, for which it was laid on was to come, Nov. 4. 1675. Mosman supplicant: Or upon Consignation of the sum arrested for, June 18. 1675. Hamiltoun supplicant: Or when the Decreet upon which the arrestment was raised, was turned to a Lybel, June 30. 1675. James Murray contra John Hall. But when the arrestment was upon a dependence, though the Decreet proceeded upon the dependence before the lousing of the arrest∣ment; yet it was found, the arrestment was loused upon Caution, June 9. 1674. Sibbald of Rankillor contra Sibbald his Son.

In lousing arrestments, no Juratory Caution was admitted, July 16. 1661. Colledge of St. Andrews supplicant.

35. Arrestment being loused, the party in whose hands it was made, is fred of the action following thereupon, and may safely pay the sum, or deliver the goods arrested to the louser of the arrestment, June 21. 1626. Balmerino con∣tra Lochinvar, Hope arrestment, Gordoun contra Brown. But if the sum remain unpayed, the Arrester may proceed against the person in whose hands he ar∣rested, Feb. 7. 1665. Graham contra Bruce. In this case the Debitor who lous∣ed the arrestment, had granted Assignation to the Debt arrested; yet the arrest∣er was preferred to the Assigney, in respect the Caution is insufficient ordinar∣ly, which comes in the place of arrestments.

Upon arrestment there ariseth two actions to the arrester, the one is against the Cautioner, found in lousing arrestment; the other against the person in whose hands the arrestment was made.

36. The other action for making sums or goods arrested forthcoming, is or∣dinary; and for understanding the requisites of it, it would be adverted, that arrestment may be raised upon production of the principal bond, without De∣creet or dependence, March 5. 1628. Binnie contra Ross: Feb. 7. 1665. Graham contra Bruce. Hope arrestment, Thomson contra Mcmorran. Secondly, It may be raised upon an action depending. Thirdly, Upon a Decreet obtained a∣gainst the Debitor, whose sums are arrested: But there can be no process for making forthcoming, till the debt be Liquidat and established by a De∣creet at the Arresters Instance, against him whose goods or sums are arrested,

or against some representing him, which was so done, though the principal Parties Advocat compeared and consented, March. 13. 1628. Somervel con∣tra Herriot. Hope transferring, Laird of Lamingtoun contra Sir James Durham. And if that party dy before the Decreet for making forthcoming, the Decreet must be transferred against these representing him: But if none will enter to be Heir, or Executor to him, but renunce; yet the party that might suc∣ceed, must be called Cegnitionis causa, Spots. de haereditariis actionibus, Murray contra Dalgleish; and therefore, when the arrestment is upon a principal Bond, or upon a dependence, the Bond must be regisrate, or Decreet obtained there∣upon, or upon the dependence before the party in whose hands the arrest∣ment was made, be oblieged to answer the party whose sums and goods are arrested, must not only be called in initio litis, but to all the dyers of the Pro∣cess, March. 17. 1637. Captain Stuart contra Iohn Inglis. In this Process the arrestment was not found instructed by extracting the Horning, containing arrestment, and of the Executions, but that the principals of both must be pro∣duced, Spots. arrestment, Stevin Boid contra Wilson.

37. As to the Exceptions competent in this action; First, it is not compe∣tent to the party in whose hands the arrestment was made, to alledge payment made by the party whose Goods or Sums are arresied, that being justertij, com∣petent only to that party himself who must be called, Decem. 21. 1621. Mr. Patrick Hamiltoun contra Dunlop. Neither will it be relevant to either party to alledge the debt; whereupon the arrestment is raised, is suspended; but the reason of suspension must be repealed by way of defence, Ian. 25. 1642. Major Stirling contra Mr. Iames Aikenhead. But it will be relevant to alledge that the arrestment is null, as being execute upon the Sabbath day, Feb. 3. 1663. Charles Oliphant contra Dowglas: Or that the arrestment not being up∣on a Decreet, was loused; and that the sums are payed: It is also relevant, that the goods arrested were lawfully poynded by another Creditor of the party to whom they belonged, because arrestment is but a begun incompleat diligence, and doth not transmit the right, till Decreet be obtained thereup∣on: But others using more compleat diligence will carry the same, Iune 5. 1611. Wright contra Thomson and Archibald Dick, which was sustained, albeit the arrestment was laid on for Excise, Decem. 1679. Forrester contra the Tacks∣men of the Excise of Edinburgh: Yea, though the party in whose hands ar∣restment was made. suffered the poynder to enter his Cellers, and poynd the goods arrested, March 11. 1635. William Dick contra Spence and Thomson. In this case the haver voluntarly opened his Celler by paction with the poynder which was not respected, seing he refused not entry to the arrester, if he had demanded it, Feb. 12. 1636. Lesly contra Lady Ludquharn. But this exception will be elided by this reply, that the party in whose hands the arrestment was made, colluded with the poynder, and voluntarly exhibited the goods arrested to be poynded, not being passive therein, but active to prefer the poynder, as was formerly found relevant, Hope arrestment, Doctor Kinloch contra Halyburtoun. Iames White contra Robert Blackater. Ian. 20. 1672. Iohn Bell contra Fleming and Watson. It is also a relevant Exception, that the ground of the arrestment or the sum arrested was Heretable, before the Act of Par. 1664. Or since that Infeftment hath passed upon either, unlessit be made move∣able; and therefore, arrestment being laid on upon sums consigned, for a redemtion was not found effectual till Declarator of redemption pass, which only makes the sums moveable; and during the dependance of the redemption, these sums cannot be arrested, as belonging to the user of the Order, because they come in place of the Lands redeemed, and can belong only to the Wod∣setter,

or Appryzer, or any having right from them to the Lands Wodset; but after Redemption, the sum consigned may be arrested and made forthcoming for payment of the Wodsetters debt, Spots. Arrestment, Hepburn contra Hay. It is also a competent exception, that the thing arrested is a proper Aliment, Expresly Constitute, and not exceeding the measure of Aliment, Novem. 19. 1622. Thomas Donaldson contra Kirkaldie and Barclay. And the Fee of a Ser∣vant was not found arrestable, in so far as it was necessary for the service he was in, but only for the superplus, more then was necessary for his Aliment in such a service, July 9. 1668. Heugh Begg contra Robert Davidson Preceptor of Heriots Hospital. The like holds in the Kings Pensions and Fees of His pub∣lick Ministers, Lords of Session, and others which are not arrestable in the Thesaurers hands by Act of Sederunt, 1613. and was so found in the case of Sir Robert Murray Justice Clerk, a part of whose Sallary was arrested, Feb. 8. 1662.

38. When pursuits are for making arrested Goods forthcoming, which are not liquid, the party in whose hands arrestment was made, will not be decern∣ed for making forthcoming a liquid sum for the price: But if he offer the Goods ipsa corpora, the Decreet will contain a Warrand to the Magistrates of the place to rope the Goods arrested, that the price thereof may be delivered to the arrester, Novem. 12. 1680. Stevinson contra Sir John Paul.

Appryzing and Adjudication of Heretable sums, whereupon Infeftment hath not followed, being little in use, though competent since the Act of Parlia∣ment, 1644. We shall say no more of it in this place, but as we have consi∣dered these several ways of Transmission of Personal Rights severally; we shall now consider them joyntly as they fall in competition, for preference amongst themselves, and each with others.

39. In these Competitions it must be considered that arrestment doth con∣stitute no Right in the Arrester, but is only a legal Prohibition to alter the condition of the thing arrested, and to pay or deliver the same to the Arrest∣ers debitor; but that it may remain in his hand for satisfaction of the debt arrest∣ed for: And it is only general arresting all sums of Money or Goods, in the hands of the party in whose hands it is laid on, due or belonging to the arrest∣ers debitor, for satisfying of the debt whereupon the arrestment proceeded; and therefore, cannot be of more effect, then a denunciation of Lands to be appryzed, or a Citation on a summonds of Adjudication; and therefore, doth Constitute or Transfer no Right, but is a legal diligence, rendering the subject matter arrested litigious, so that the party in whose hands the arrestment is made, cannot alter any sums or debts belonging to that debitor in prejudice of the debt arrested for, until the Arrestment be loused, and Caution found for the debt or Decreet, absolvitor or declarator be obtained, excluding the ar∣restment: And if he do any thing in the contrary, it infers breach of Arrest∣ment, confiscating his Moveables, and he is lyable, as if the sums or goods remained in his hand, pro possessore habetur qui dolo desiit possidere: And though the Arrestment have no intimation to the Arresters debitor, or any of his Cre∣ditors; yet if any of them recover the sums or goods arrested by the Collusion or neglect of the party, in whose hands arrestment is made, he will still remain lyable; and if he have not acted bona fide, he will incur the breach of arrest∣ment; as if by Collusion and gratification, he or his procurator (whose deed

will be presumed his) oppose the arrester, and procure delay to compear, and depone and acknowledge the debt, or he holden as confest to another arrester; neither will he be liberat by offering his oath, that he gave no such Warrand, for the imploying a Procurator is a sufficient Warrand for all the common course of Process, and requires no special mandat: Yea, if he pay or deliver to any other arrester, or even be poynded upon a Decreet at his in∣stance, he will not be liberate, seing he ought to have raised a Process of mul∣tiple poinding, calling the debitor and all the arresters or assigneys to dispute their several rights, that once payment to the party, found to have best right, might liberate him; yet if he have payed, he does thereby without a direct assignation, come in the place of the party to whom he hath payed; and if he can show that parties right, is preferable to the arrester insisting, he will be heard thereupon.

And unless it be found that he proceeded warrantably, not only will he be decerned to make forthcoming, though it infer double payment; but he to whom he payed unwarrantably, will be compelled to restore and satisfie the arrester, the subject having been litigious by his arrestment, before the other party recovered the same, albeit he have recovered payment, bona fide, without any fault in him, but by the litigiousness of the subject; For payment made bonafide, with a preferable Right, relieveth only the payer, who was or might have been compelled to pay, being conscious of no other Right: For it is not relevant for the party obtaining payment, bona fide; nor will that ground of Law secure him, qui suum recipit, licet a non debitore non tenetur re∣stituere, which holds only in voluntary payments, a non debitore, and where the subject is not litigious.

Upon the same ground, albeit the party in whose hands arrestment is made, collude not, but do equally passive, or equally oppose the Com∣petitors: Yet if the debitor collude and propone Defences against some of the Competitors, and not equally against all, and thereby procure delay, and Terms to prove, if he succumb, though another pursuing in a seve∣ral Process, before the same or different Judge, obtain Decreet and pay∣ment thereupon, yet he will be necessitate to refound, if he had not a prefe∣rable Right.

41. If the party in whose hands arrestment was made, appear and offer to depone, if the pursuer suffer him to depone generally, that the time of the arrestment he had neither Goods nor Sums belonging to the Debitor in his hands, the arrester will not, ex intervallo, obtain him to be more parti∣cularly interrogate, ad vitandam frandem & perjurium; but if before, or at his oath given in general, there be special interrogators offered by the par∣ty or the Judge, whether at any time in his hands, sums or goods belong∣ing to the arresters Debitor, and how, and when he satisfied or deliver∣ed the same, he will be holden as confest, unless he depone particularly that he be not his own Judge, as to the time when he was due, or when he ceassed to be due; For he may pretend or imagine, that the time of the arrestment, he was not debitor, because he had payed to an Assig∣ney, whose Assignation was prior to the arrestment, albeit intimation was not prior, though he had promised payment before intimation, yet he could not thereupon have been compelled to pay it, if before payment an arrestment had interveened, because his promise could be but understood

to be according to the parties Right' to whom he promised, which he could not quarrel; but if another did exclude that party, he could not be lyable to double payment, albeit he had given a Bond of Corroborati∣on, unlesse the Assigney had offered to intimate, and he had hindered the same, as unnecessary, and promised payment; for then through his own fraud or fault, he would be lyable to pay both parties; and therefore, the promise of payment was only found relevant to exclude an Arrestment, after the promise, to be proven by the Oath, or Write of the Arrester, and not of the Promiser, or party to whom he promised; yet if the Pro∣mise were not so proven, and thereby the Arrester were preferred; the party promiser, in whose hands the Arrestment was made, was declared free of the promise, unless there had been Transaction, or that the pro∣miser had undertaken the hazard, Mr. James Elphingstoun contra George Home and the Laird of Steonhope, December 11. 1674.

22. That which Transferreth the Right, is neither the Arrestment, the Citation, nor any thing in Process, but only the Decreet for mak∣ing forthcoming, which is in the same conditions, as to Subjects, ar∣restable as Appryzings, or Adjudications are to others, which do not import full satisfaction of the Debt, and do not fully liberate the Debitor, but that other diligences may be used for the same debt, unless he pos∣sesse till the legal expyre; and in the same way after Decreet, for ma∣king forthcoming, the Arrester may use other Diligences, but in com∣petition with other Creditors using diligence, he may not exclude them and keep up his own diligences, but hath his option thereof.

Seeing the Arrestment maketh the Subject Arrested Litigious, it hath the common effect necessarly introduced by Law, in re Litigiosa, that In∣choat diligence cannot be excluded, either by the voluntary deed of the Debitor, or by any legal diligence posterior, unless the user of the first In∣choat diligence become negligent, Nam vigilantibus, non dormievtibus jura subveniunt.

The application of these Grounds will easily clear the preference in the competition of Arrestments with Assignations, or of Arrestments with Ar∣restments.

43. And as to the Competition betwixt Assignations and Arrestments; an Assignation duely intimate, is a full and compleat Transmission of the Right assigned, if by its nature it be assignable, and thereby the right of the Cedent ceasseth, and the Assigney becomes Creditor, and hath no necessity of any further diligence to compleat the Right: Therefore no posterior Arrestment will be preferred to an Assigney, if the intimation be before the Arrestment, which is accounted, not only by dayes, but by houres: But if the intimation and execution of the Arrestment be both in one day, and express no hour, if the Arrester be not negligent, they will come in, pari passu, because no priority doth appear, Spots. Debi∣tor and Creditor, Mr. Cornelius Ainsly contra 〈◊〉〈◊〉 Edward, which will hold in the competition of diverse Arrestments, or diverse Assignati∣ons, where no priority doth appear; for we have little respect to the an∣teriority

of debts in competition, but to the anteriority of diligence, as is evident in Appryzings and Adjudications.

44. But if the Arrestment be prior to the Intimation, the Arrest∣ment is preferable, if it fail not in diligence; and therefore, an Ar∣restment was preferred to an Assignation intimate the same day, but two hours thereafter, January 30. 1629. Davidson contra Balcanquel: Yea, an Arrestment upon a dependence, was preferred to a posteriour Assigna∣tion, though intimate half a year before sentence, upon that dependence, Hope Assignation: It must be in the discretion of the Judge to determine, when Arresters fail in diligence.

45. And as to Intimations, they are inquestionable, if done by Instru∣ment, or by Charge of Horning, at the instance of the assigney upon the assignation, because the Letters bears, that the assignation was produc∣ed to the Judge, passer of the Bill: and there is little doubt, that assig∣nations attaining effect by Possession, will be in the same case, as if inti∣mate by Instrument: Or if Bond of Corroboration be obtained upon the assignation, or Discharges instructing payment of a part of the debt assign∣ed: Or if in Process, the Assignation be Judicially produced; but the case is not alike, nor have I observed it decided, if Citation before the Assignation be Judicially produced, will exclude an Arrester, medio tem∣pore.

46. As to the competition of Arresters, the first Arrestment, not failing in diligence, is preferable; and therefore, the first Arrester was preferred, though prior but by one day, though both obtained Decreet upon the same day, and both used full Diligence, February 1. 1666. Collonel Cuninghame contra Layel. And likewise, an Arrestment by Letters from the Lords of Session, and first Citation thereupon, being insisted in without negligence, was preferred to a posterior Arrestment, though obtaining the first Decreet, before a Sheriff, in respect that Decreets before the Lords, cannot be so summarly obtained, especially, seing they must abide the course of a Roll, November 23. 1677. Sir Robert Montgomery contra Alexander Rankine. And a posterior Arrestment was preferred to a prior, in respect the Term of pay∣ment of the sum, for satisfying of which, the first Arrestment was laid on, was not come at the time of the first Arrestment, but before the second Ar∣restment was laid on, the Term of payment of the sum, for which it was laid on was past; albeit the Terms ofboth sums were past before the com∣petition came before the Lords by Advocation, July 29. 1670. Charles Charters contra Cornelius Neilson: July 17. 1678. Lord Pitmaiden contra William and Robert Patersons. And for the same cause, Arrestment upon a Decreet may be preferred to a prior arrestment upon a dependence; be∣cause the ground of the former hath paratam executionem: and not the ground of the latter: Yet an Arrestment upon a Dependence was pre∣ferred to a posteriour Arrestment, obtained upon production of a Regi∣strable Bond, before it was Registrate, and so was not raised upon a De∣creet, Hope Arrestment, Thomson contra Memorran. And arrestment laid on after the Term of payment of the debt arrested, was preferred to a prior arrestment, laid on before the Term of payment upon the debt arrest∣ed,

July 5. 1673 Birnie contra Mowat and Crawfoord. And an arrestment laid on verbally by a Towns Officer, was excluded by a posterior arrest∣ment, having an Execution before witnesses, albeit the verbal execution was the custom of the place, July 19. 1678. Warrock contra Brown. And a first arrester was not excluded for want of diligence, but was prefer∣red to a posterior Arrester, who had brought his Cause to be concluded, at which time the prior arrester compeared, and produced an assignati∣on, after his arrestment from the common debitor, whereby he needed no further diligence, July 19. 1673. Birnie contra Crawford: This 〈◊〉〈◊〉 was found no voluntary Gratification, seing it preferred the first le∣gal diligence: And upon the same ground, an Assigney by a Bankrupt, was preferred to a posterior Arrester, in respect the Assigney had used the first diligence by Horning, before the arrestment, Novem. 20. 1677. Bishop of Glasgow contra Nicolas and Brown.

TITLE XXIV. Dispositions, Where, of Resignations, in favorem, Appryzings and Adjudications of Real Rights.

• 1. Dispositions of Properly carry vir∣tually all Lesser Rights.
• 2. How superveening Rights, belong∣ing to Authors, belong to their sin∣gular successors.
• 3. Dispositions descrived.
• 4. How dispositions are accomplished in equity.
• 5. How by the Law of the Romans, and other Civil Nations.
• 6. Possession accomplisheth reall Rights.
• 7. Properly of Moveables is presumed from Possession.
• 8. Resignation in favorem.
• 9. Dispositions or Assignations, by these who have no Right with consent of these who have Right, how far effectual.
• 10. Procuratories or Infeftments of Re∣signation, after fourty years pos∣session by Charters, needs not be produced.
• 11. Infeftments on Resignation carries any lesser right in the disponer, though not exprest.
• 12. The effect of resignations accepted by the Superiour, before Infeftment follow thereon.
• ...

• 13. Superiours are not oblieged to re∣ceive the singular Successors of of the Vassals after Infeftment ex∣pede, though it bear to the Vas∣sals Heir and Assigneys.
• 14. Appryzings can only proceed on li∣quid sums.
• 15. Appryzings reaches al Heritable Rights though not provided to Assig∣neys.
• 16. Appryzings carry all personal Rights, without Intimation.
• 17. The rise of Infeftments upon posteri∣or Appryzings.
• 18. Infeftments may be obtained sum∣marly upon Appryzings after the debitors death.
• 19. The effect of Appryzings as to Non∣entry, Ward, and Liferent∣escheat.
• 20. The denunciation whereupon Appry∣zing follows, renders the mat∣ter litigious, and excludes poste∣rior voluntary Rights.
• 21. Competition of Appryzings.
• 22. The effect of Appryzings at the In∣stance ofSuperiours against their own Vassals.
• 23. The effect of Appryzings, as to Re∣movings, Mails, and Du∣ties.
• 24. Allowance of Appryzings.
• 25. Whether Superiours must receive ap∣pryzers, not instructing their authors Right.
• 26. The quantity of the Years Rent due to Superiours for entering Ap∣pryzer.
• 27. What course is competent against contumacious Superiours.
• 28. The Legal Reversion of Appryz∣ings.
• 29. Appryzers may use other diligence for their payment, though the Ap∣prizings were expired.
• 30. Nullities of Apprizings.
• 31. Modification of exorbitant Penalties in Apprizings.
• 32. Apprizing sustained without a charge for the sum.
• 33. Apprizing sustained, though the Letters and Execuitons were blank as to the Lands, the Mes∣senger who denunced, being Judge to the Apprizing, in which they were filled up, which was a more solemn Execu∣tion.
• 34. An Apprizing sustained without producing the Letters of Appri∣zing, being long before, but the Instructions of the debt were found necessary to be produced within Prescription.
• 35. An Apprizing sustained, though by dispensation at a private place, and the Court of Appriz∣ing adjourned.
• 36. An Apprizing of Rights, ge∣nerally preferred to a posterior Apprizing of the Right in special, being an Annualrent.
• 37. Apprizings become extinct by pay∣ment, and the debitors Right revives without new Investi∣ture.
• 38. In what cases Apprizers must pos∣sesse and how they are coun∣table
• ...

• 39. What alterations in Apprizings are Introduced by the Act of Par∣liament, 1661. cap. 62. as to the indurance of the Legal, and coming in pari passu.
• 40. Now Apprizings coming in the person of the Debitors appear∣and Heir, are satisfiable from him or his Trusties.
• 41. How Apprizings against parties charged to enter Heir, are re∣deemable.
• 42. Legals run not against Minors.
• 43. Apprizers continuing to possess af∣ter the Legal, can use no other diligence, but the sums are there∣by satisfied, though a part of the Lands were evicted, the rest being worth the whole sum.
• 44. The rise of Adjudications.
• 45. The Form of Adjudications on Re∣nunciations to be Heir.
• 46. Why Adjudications past at random, and may now be put to Instruct some Interest in the Debi∣tor.
• 47. What Rights are affected with Ad∣judications.
• 48. Superiours must receive Adjudg∣ers, paying a years Rent, un∣less they pay the Creditor, and then the Superiour will have no years Rent.
• 49. How Adjudications are Redeem∣able.
• 50. Adjudications may be for the ap∣pearand Heirs own debt.
• 51. How Adjudications become Ex∣tinct.
• 52. The form and effect of Adju∣dications to perfect Disposi∣tions.
• 53. The form and effect of the parti∣al and total Adjudications in∣troduced by the Act of Parlia∣ment, 6. of September, 1672.

A DISPOSITION may, and some∣time doth signifie the alienation of any Right, whether real or personal, so the stile and translations ordinarly bears, the assigney to transfer and dispone, as assig∣nation is sometime extended to the dispo∣sal of real Rights, which are srequently provided, not only to Heirs, but to As∣signeys; yet these Terms are so appro∣priat and distinguished, that a Dispositi∣on is applyed to the alienation of real Rights, and Assignation of personal Rights.

1. In both dispositions and assignations, the Disponer or Cedent is called authour, and the acquirer is called the singular successor, and in both, this common Brockard takes place, jus superveniens authori accrescit Successori, that is, what ever Right befalleth to the author after his Disposition or assignation, it accresseth to his Successour, to whom he had before disponed, as if it had been in his Person when he disponed, and as if it had been expresly disponed by him, whence ariseth the distinction; betwixt dispositions and assignations, express and implicite, or tacit when the Right is not expresly disponed, but tacitely or virtually, as he who dispones the property, hoc ipso, doth tacitely and virtu∣ally dispone any lesser Right, as a Reversion, Servitude, Liferent, though no particular mention be of these, according to another Rule of Law majori in∣est minis, so ary person Infeft in Property, and his Seasine Registrat, will have right to a Reversion, if no more was in the Disponers Person; albeit assigna∣tions to Reversions require special Solemnities, as to be registrat in the Regis∣ter of Reversions; yet the Registration of this Seasine will be equivalent: so a Liferent Right, granted by him, who had only right of Tack, was found to carry the right of that Tack, during the Liferenters life, Hope Liferents, Laird Rossyth contra his Tennents. The like of a Back-tack, Ibid. Lady Boyd contra her Tennents, Stuart contra Fleming. The like found of a Liferent, which carried the Right of a Reversion, quo ad, the Liferenters life, Decem. 5. 1665. Beg contra Beg.

2. There is no question of this accression, when the disponer disponeth for all Right he hath had, or shall acquire, which is a general assignation or dis∣position, of any Right superveening, if the debate fall betwixt the disponer and successor, there is also little question, if the Right disponed have exprest or implyed absolute Warrandice, as being for a Cause Onerous: In which case, if the question be betwixt the disponer and successor, he who disponed for an equivalent Cause, importing his acknowledgement of having an abso∣lute Right, cannot cloath himself with any posterior Right, which would in∣fer warrandice against him, if it were in another person; and therefore, that personal objection excludes him, it being in his own person: Neither is it questionable, that if the Disposition or Assignation be limited, as being only to a particular Title, or generally, for any Right the Disponer hath, or bear∣ing

warrandice from his own Fact and Deed, then if he acquire a posterior Right, he may make use thereof against that person to whom he disponed, much more may any singular Successor of his; and therefore, in the case decided, July 19. 1664. betwixt Dam Elizabeth Dowglas and Sir Robert Sin∣clar her Spouse contra the Laird of Wedderburn, anent the Teinds of Kello and Kimmergem, whereof the Earl of Home, common author, gave a Tack to Wedderburns predecessor, with warrandice from his own deed; and any right the Earl then had being reduced, he did thereafter acquire a new Right from Coldinghame, and thereupon granted a Right to William Dowglas of Evla, to whom the said Dam Elizabeth Dowglas is: heir, which supperveening Right was found not to accresce to Wedderburn, to defend his Tack, seing he had not absolute warrandice, but from his own deed only: But the main question is, when the contraversie is not betwixt the author and the party to whom he dis∣pones, but betwixt the singular Successor of that author and that party to whom he had disponed before, in which case the personal objection upon the warrandice, hath no place; and oftimes the right superveening, requireth spe∣cial solemnities, and cannot be transmitted without these, as Resignation, Con∣firmation, Seasine, yet even in these cases, reason and the Lords Decision ex∣tended the rule so, that the superveening Right, ipso facto, accresces without any new solemnities; but if the necessar solemnities have preceeded when there was no right, whensoever the Right superveens, it is drawn back, as if it had been in the time of the former solemnities, fictione juris; and so if a Superiour acquire the Right of Forefaultry of his Superiour, the same ipso facto, accres∣ceth to the sub-vassals, and cannot be made use of against them, Spots. Con∣junctfees, Malcolm Crawford contra Mordistoun. The like was found, Feb. 15. 16. 1665. Boid of Penkil contra Vassals of Carsluth: In which case the Vas∣sals were ordained to pay their share of the Composition of a Ward: But where the superveening Right befell to the Authors appearand Heir, and was by him disponed to another, before he was entered Heir; in that case, the Au∣thors appearand Heir, obtaining gift of the Liferent-escheat of Lands dispon∣ed to Vassals, the said Liferent was not found to accresce to the Vassals, be∣cause the appearand Heir was denuded thereof, in favours of another, before he was Heir, July 5. 1611. James Skeen contra Vassals of Athol; this Rule was so far extended, that a supervenient Right, by Decreet of Reduction and Improbation acquired by Swintown, having right to the Lands of Brimstoun, was found to accresce to the Earl of Lauderdail, being restored, July 13. 1664. Earl of Lauderdale contra Heretor of Wolmet. But where a person having a disposition of Lands, did Insest another in Liferent himself never being In∣feft, did assign the Disposition to a third partie, who was thereupon Infeft, that Disposition was not found to accresce to the Annualrenter, because his Author was never Infeft thereupon, June 29. 1676. James Brown contra Smith.

It is the common opinion, that if a party grant Infeftment, before he be in∣feft himself, and he thereafter Infeft, it accresceth to that party whom he In∣feft before, if the question be betwixt them, but I have not observed it direct∣ly decided, quid juris; in these 〈◊〉〈◊〉, if a person not infeft, do give Right to two parties, and thereafter be Infeft, to which of the two his superveening Infeftment will accresce: Or if he Infeft one, when he is not Infeft, and there∣after another, when he is Infeft, which of these will have right; but it seems the first Infeftment in both cases will be preferred, because she common Au∣thors Right accresceth, ipso facto: Yet if the common Authors Infeftment pro∣ceed upon the diligence of any party, it may seem the same will only accresce

to him who is the procurer of it; yet even in that case, it was found to accress to the first Right, with absolute warrandice, June 21 1671. John Nielson contra Menzies of Enoch. But now to return to what is special in Dispositions.

3. A Disposition is the transmission, or conveyance of real Rights from the Disponer to his singular Successor, not in contemplation of the Disponers Death, for such are comprehended among successions, from the dead as Le∣gacies, Donations, mortis causa, &c.

A Disposition is said to be a conveyance, and so it is taken, not for the Dis∣positive act of the Will only, but whatsoever else is requisite to compleat the conveyance, as Tradition, Resignation, Possession, though a Disposition is oftimes taken as distinct from these, for the more clear uptaking of convey∣ances of real Rights; Consider first, what is requifite to transmit them by the Law of Nature, without any positive Law or Custom: and next, what by these is requisite to transmit the several Rights.

As to the first, it hath been shown in the Title (real Rights) how far Do∣minion and Property is competent by the Law of rational Nature, and it can∣not be doubted, but that though there were no positive Law nor Custom, that the rational Creature is naturally instructed how to Dispone and Alienate his own, the power of Disposal being the Characteristick of Dominion, which is natural to man, being created Lord of the Creatures.

The question then is, by what act men may naturally exercise the power of Disposal, which can be no act of the Understanding, that being only con∣templative, and nothing active nor operative, for Constituting or Transmit∣ting of Rights, but it must needs be an act of the Will, for by it, Rights are both acquired, Relinquished and alienate: There may be three acts of the Will about the Disposal of Rights, a resolution to Dispone a Paction, Con∣tract or Obligation, to Dispone, and a present will or consent, that that which is the Disponers, be the Acquirers. Resolution terminats within the Resol∣ver and may be dissolved by a contrary resolution, and so transmits no Right; Paction does only Constitute or transmit a personal Right, or Obligation whereby the person oblieged may be compelled to transmit the real Right It must needs then be the present dispositive will of the Owner, which con∣veyeth the right to any other, which is exprest by such words, de presenti, Ti∣tius Disponeth, Alienateth, or Annualzeth, Gifteth, Granteth, Selleth, &c. which connot properly import an Obligation, having its effect in the future; though there may be Obligations consequent as to delivery, warrandice, &c. But these Terms do expresse something presently done, and not ingaged to be done, and so can be nothing else but Alienation or Transmission of the Right itself.

That the Dispositive will of the owner alone, without any further, is suffi∣cient to alienate his Right, without Delivery or Possession, is evident in per∣sonal Rights, wherein the Dispositive Clause of Assignations or Translations is sufficient; Intimation or Possession being introduced for expediency in some cases, by our Custom, that the dispositive will is also sufficient to transmit real Rights; it appeareth, because the will alone is sufficient to retain, not only Rights, but even Possession it self, though there be no Corporeal act exercis∣ed therein; and therefore, the act of the will alone, as it retaineth, so may it relinquish that Right or Possession, whereby it ceasseth to be the former

Owners; and therefore, if the Will be not simply to Relinquish, but to re∣mit or transmit the Right to any other, hoc ipso, that other doth become domi∣nus; Dominion being the power of disposal, which is a Faculty, and no Cor∣poreal thing, and may be fitly Constitute in the Acquirer, by the will of the Disponer, unlels the Acquirer reject it, for the Disponer before having the on∣ly power of disposal, and remitting that power to the Acquirer, the thing cannot be said to be nullius, as being relinquished; and therefore, the Domi∣nion or disposal of it, must either be in the Disponer or the Acquirer; not in the Disponer, because by his will, which is sufficient to Relinquish or quite it, he hath remitted it; and therefore, that power must be in the Purchaser, un∣less he reject it: This is the more evident, that Positive Law and Custom, which requireth Delivery or Possession, resteth in symbolical or imaginary Pos∣session, as by delivery ofEarth and Stone, for Land of a Penny for Annualrent, and in some cases requireth no Possession, so the Fisk acquireth real Right without Possession; and the right ofLegacies, and others from the dead, are transmitted without possession.

5. But for Utilities sake, not only the Romans, but almost all Nations re∣quire some kind of Possession, to accomplish real Rights, that thereby the will of the Owner may sensibly touch the thing disponed, and thereby be more manifest and sure, so the Law saith, Traditionibus & Usucapionibus, non nudis pact is dominia 〈◊〉〈◊〉 transferuntur, with which our Custom accordeth.

It useth here to be debated, whether Possession it self be sufficient to accom∣plish Dispositions; or if there must be Tradition, or delivery of that Possession, by the disponer to the acquirer, the forecited Law seems to require tradition; or at least Usucapion, or Prescription, which doubtless are the most proper ways to accomplish dispositions; yet Utiliter and Equivalenter Possession, lawfully attain∣ed by vertue of the Disposition, although not delivered by the Disponer, will be sufficient, as if the disponer were not in Possession himself, and so cannot deliver it, yet the Acquirer may recover it from the detainer, or the acquirer might have been in Possession before, by any other Title, as by Custody, Conduction, &c. In which case, none require delivery; yea, it is more que∣stionable, whether the Possession would not Consumate the disposition, though unlawfully attained, as if the disponer not being in Possession, the acquir∣er attained the Possession from a third party, vi aut clam, though he might be oblieged to restore that Possession to the third party; yet whether it would not exclude a posteriour disposition, though more Legal Posses∣sion; It is a Question as probable in the Affirmative, as in the Nega∣tive.

It remaineth then that Possession is the accomplishment of the Disposition of real Rights, so that not the first Disposition, but the first Possession, by vertue thereof preferreth. This Possession is not alike in all cases, for in some real, in others symbolical, Possession is requisite, which cannot be supplied by real Possesson it self, as in Propertie of Lands or Annualrents by Infeft∣ment, wherein the disposition and natural Possession makes no real Right without Seasine, July 12. 1628. Bennet contra Turnbul. Novem. 25. 1628. Mit∣chel contra Wright.

Possession is requisite, not only to the conveyance of the Property of Move∣able Goods, but also of Liferent-rights, Tacks and Rentals, Servitudes, Pledges; which Tacks, though they be truely personal Rights of Location, and consti∣tute

only as real Rights by Statute, yet Intimation will not transmit them; but there is necessity of Possession: and though Liferents be more properly real Rights, because Constitute by Infeftment; yet seing a Liferenter cannot Infeft another as a Fiar can, Assignation or Disposition is sufficient, but it must be cled with Possession: But Reversions, though they be accounted as real Rights by Statute, require no Possession for Transmitting them, but an Assig∣nation duely Registrate, according to the Act of Par. 1617. is sufficient as a publick Intimation.

In Moveables, Possession is of such efficacy, that it doth not only consumate the disposition thereof, but thereupon the disposition is presumed without any necessity to prove the same, which was found sufficient to inctruct the Pro∣perty of a Ship from Possession, without vendition in Write, July 26. 1623. Captain Hamilloun contra the Master of the Ship Stetine. And the property of Money was inferred, from having the Key of the Chist in which the Money was found sealed, unless a contrary probation were adduced, June 18. 1675. Tailzior contra Rankine. And so a Creditor having poynded Goods from his debitor was preferred thereunto to a third party, who offered to prove these goods to be his own proper goods, bred upon his own ground, and set a gras∣sing to that debitor, the poynder instructing that the goods were milked, wrought, and the off-spring thereof enjoyed by the debitor for two years, without any possession by the other party, during that space, which so far pre∣sumed his right, that the Lords admitted not the contrary probation, Nevem. 24. 1624. Turnbul of Symontoun contra Ker of Cavers. The like upon two years possession, June 17. 1625. Brown contra Hunterstoun. But restitution of a Horse was not excluded, because the possessour offered to prove he bought him from one who then had him in possession, in respect the pursuer then of∣fered to prove that immediatly before he had set the Horse in hyre for a Jour∣ney to that person who sold him, Novem. 18. 1680. William Forsyth Stabler contra Hugh Kilpatrick: So that it will not be sufficient to any claiming right to moveable goods, against the lawful possessor to, alledge he had a good Title to these goods, and possession of them, but he must condescend, quo modo desiit possidere, by Spuilzie, Stealth, &c. Or that he gave them only in grassing and custody, and continued to use Acts ofProperty; the reason where∣of is, because in the Commerce of moveables, write useth not to be adhibite, and it would be an unseparable labour, if the acquirer thereof behoved to be instructed by all the preceeding acquirers; as if one should instruct that he bought or bred such goods some years agoe, the present possessor behoved ei∣ther to instruct a progress of them, through all the hands they passed from the first owner, or lose them, which being destructive to Commerce, Custom hath introduced this way, that possession being present and lawful, presumethpro∣perty without further probation, unless the pursuer condescend upon a clear probable way of the goods passing from him, not by alienation, as if they were spuilzied, stolen, strayed, &c. Feb, 3. 1672. Scot of Gorrenberry contra Eliot. In which case, the Lybel was only found relevant to be proven by the de∣fenders oath, that he had not bought or acquired the goods, bona fide; Or that the goods were in a Defuncts possession the time of his death, Fe∣bruary 24. 1672. Semple contra Givan; In which case a Defuncts goods were restored, albeit they were long possessed after by his Wife, and impig∣norate by her, and her second Husband, without Confirmation, the Children of the Defunct Husband, recovered the same from the Ac∣quirer.

The passing from the Proprietar must be so evidently instructed, that there may no probability remain of their being recovered, and thereafter alienat: Upon this ground it was, that Sir John Scot, pursuing Sir John Fletcher, for a Book delivered to him, The Lords found the Lybel not relevant, unless it were condescended, quo modo, the pursuer delivered the same, viz. by Loan, and would not put the defender to prove gifted, but presumed his Title, unless the contrary were proven by oath or witnesses, Jan. 27. 1665. And in a Process for Jewels, at the Instance of John Ramsay contra James Wilson, who had them from Mr. Robert Byres; the Lords found, that the presumptive Title of the defender and his author was elided upon the contrary presumption, that Jew∣els of such value, could not be bought, bona fide, seing the seller was neither Merchant nor Jeweller, nor the Jewels fit for his proper use, and because it was offered to be proven, he took them at his own hand out of the pursuers possession to whom they were impignorat by write, by the Proprietar, who immediatly went out of the Kingdom.

The most ordinary and important conveyances are of Lands and Annual∣rents, which pass by Infeftment, for perfecting whereof, there must not only be a Disposition, but also a Resignation in the hands of the Superiour, and new Infeftment granted by him to the Acquirer thereupon, or by Confirma∣tion, or for obedience upon Appryzing or Adjudication: For disposition of Lands to be holden of the granter, do not transmit the granters Right, because he continues Superiour in the direct Dominion, but it becomes an Original Right, constituting a new subaltern Infeftment.

Resignation is either in favours of the Superiour himself, for consolidat∣ing of the Property with the Superiority; and therefore, is called Resig∣nation, ad perpetuam remanentiam: Or it is a Resignation in the Supe∣riours hands, in favours of the Resigner himself, or infavours of an Acquirer; and therefore, is called Resignation, in favorem. The first of these is no transmission, but an extinction of the Fee, and hath been spoken to in that Title.

The second is not properly a transmission, because it passeth not from, but returneth to the Resigner; yet ordinarly under diverse Considerations, as when he resigns from himself and such heirs, in favours of himself and other heirs, or when he resigns a Ward holding, that it may be returned blench, or few; for the right understanding of Resignations, in favorem, consider the so∣lemnities requisite thereto, and the effect which flow from the several steps thereof.

For the first, a Resignation must proceed upon a Disposition, or Procura∣tory of Resignation, having in it the effects of a Disposition, which must be in write, for the Instrument of Resignation being but the assertion of a Nottar, will not be sufficient alone, without an adminicle in write, and though Resig∣nation propriis manibus, can have no Procuratory yet the Disposition whereup∣on it proceeds, must be shown.

The second step in Resignation, is the Act of Resignation it self, which necessarly must be by way of Instrument of a Nottar, expressing the warrand of it, viz. the Disposition if it be done by the resigner, propriis manibus, or the Procuratory if it be done by a Procurator, and that conform thereto, the Re∣signer or Procurator compeared personally before the Superiour or his Com∣missioners,

having special warrand to receive Resignations, and that the Re∣signation was made in the hands of the Superiour by Staff and Bastoun, deli∣vered by the Resigner or his Procurator to the Superiour, as the token or sym∣bol of the thing resigned, and that the same was accepted and received by the Superiour, or his Commissioners, by taking the said symbol in their hands, for new Infeftment, to be given to the Acquirer; and though the Resignation useth to be made by the Vassal, or his Procurator on their knees, and so is exprest in the Instrument, either generally or specially with all humility, and that the superiour or his Commissioner, use to deliver the Staff as the symbol of the Fee to the Acquirer, which is also exprest in the Instrument; yet these are not essential, but that without the being or expressing of the Instrument will be valid.

The last step of this transmission by Resignation, is the Superiour or his Commissioners, giving new Infeftment to the Acquirer, the nature and requisites of which Infeftment, hath been exprest before in the Title Infeft∣ments.

The Solemnities of Resignation are so effectual and necessar, that the omis∣sion of any of them annulleth the Resignation; and therefore, Renunciation without a formal Resignation, though it may be sufficient against the Renuncer, yet it is not sufficient to take away Infeftment, renunced against singular suc∣cessors: Nor can it constitute any real Right in the person of the Acquirer, unless he had, aliunde, another right standing in his person, in which case, the Renunciation might exclude the Renuncer, or his Heirs, to quarrel that right, Hope alienation, Hamiltoun contra Mcadam: The reason thereof is, because, jura eodem modo destituuntur quo constituuntur; and therefore, as Infeftments cannot be constitute without an Instrument of Seasine, so they cannot be desti∣tute without an Instrument of resignation, or at least another Instrument of seasine, with the superiours Confirmation, or upon his Charter for obedience, so that renunciation being personal, operats nothing, except in the case of Wodsets, which are extinguished by a renunciation registrate by the Act of Parliament, 1617. But even Wodsets cannot be transmitted without re∣signation.

9. But where it is said that the resignation must be by the Vassal or his Pro∣curator, this question ariseth, if the Assignation be made by him who is not truely Vassal, but with consent of the true Vassal, quid juris, Craig, lib. 3. dieg. 1. shows, that in his time this question was not clearly determined, nor is he positive in it, but this far, if the resigner had no Title, no consent could be sufficient: yet if he had a colourable Title, the consent of the true Vassal might validate it: If the true Vassal be consenter to the Procuratory of resig∣nation, either expresly bearing, that the disponer, with consent, &c. consti∣tute his Procurators: Or if he be consenter to the disposition, by being ex∣prest in the entry thereof, which is holden as extensive to the whole dispositi∣on, and so as repeated in the same, will be as valide, as if the consenter him∣self had granted the disposition, or Procuratory for the Act of the disponer, though more express and amplified, is no more but his consent, and so the other consenting, doth the same materially, which he would do if he were disponer, formally, but if his consent be adhibite after the resignation is made, it is meer∣ly personal, and cannot have influence on the resignation, which was before it; or if he but permit or give license to the disponer, or which is alike, if he consent, that the disponer dispone in so far as may concern the disponers

right, these will not be sufficient warrand for the resignation, but if he give warrand or consent to the resignation, it is sufficient; neither is there neces sity to distinguish, whether the disponer have a colourable Title or not, se ing it is the consent of the true Vassal and the resignation as flowing from, and warranted by that consent, which transmitteth the right; and therefore, an Infeftment of an annualrent, granted by a person not Infeft, was found valide, because a consenter thereto was Infeft, and so it did exclude a valide right flow∣ing from that consenter to a singular successor thereafter, viz. a Tack, Decem. 15. 1630. Jean Stirling contra Tennents.

10. Resignation how necessar soever to transmit an Infeftment, yet because the Procuratory and Instrument of resignation may be lost; therefore, the Vassal possessing fourty years, by vertue of an Infeftment, mentioning such a resigna∣tion, the same will be valide without the production of the procuratory, or Instrument of resignation, which therefore is presumed, thence presumptione juris, Par. 1594. cap. 214.

11. As to the effect of resignation, there is no doubt, but when the same is truely made, and Infeftment follows conform, the resigner is fully divested, and the acquirer is fully invested, and if there be conditions or provisiions, whe∣ther bearing express clauses irritant, that the acquirers Infeftment shall be null, and the disponers Infeftment shall revive, or he have regress, how far these are effectual, till by resignation or judicial process, the same be recovered, is more fully cleared before, Title Infeftments.

It is no less evident, that before resignation be made the disposition or pro∣curatory, operats nothing as to the real right, which notwithstanding remains fully in the disponer, though he be personally oblieged to perfect it, albeit there be no such express obliegement in the disposition; yet by the nature there∣of, the disponer is oblieged to Infeft himself, if he be not Infeft, and to Infeft the acquirer, Hope alienations, William Gladstanes contra Laird of Mckerstoun: Yea, the disposition of property being accomplished, carrysall real right of the Land, or Bonds for granting real right, in favour of the disponer, or his au∣thors, neither assigned nor mentioned in the disposition, July 1. 1623. Craigy Wallace contra John Chalmers. Yea, a liferent carryeth the reversion in the disponers person, as to the Liferenters Liferent use, that ther eupon he might redeem a Wodset: So likeways a disposition of Lands immediatly before a Term, not expressing an Entry, nor Assignation to the rent, was found to exclude the disponer therefrom, though Infeftment followed not, till after the Term, Spots. Mails and Duties, Andrew Caldwal contra Robert Stark. And generally, it carrys Mails and Duties, as including virtually an Assignation thereto, July 15. 1629. Inter eosdem: And though the Disposition, or Pro∣curatory, cannot constitute a real right, yet it doth sufficiently exclude the Disponer or his Heirs, from troubling the Acquirers Possession there∣upon.

12. The Main question then is, what is the effect of a resignation, when done and accepted by the Superiour, and no Infeftment following thereon, where, in that case, the right standeth, whether in the Disponer, Acquirer, or Supe∣riour, and whether the resigner be fully thereby denuded, or if he may not grant a second resignation, whereupon the first Infeftment being recovered, will be effectual: This is very learnedly debated by Craig in the forementioned place, where he sheweth, that the common opinion was, that the second re∣signation,

with the first seasine will be preferred, though the Lords had de∣cided otherways, in the case of a Citizen of Perth, who making a second re∣signation in favours of his Son, though after the first resignation by the space of twenty years; yet Craig approveth the old opinion concerning the resigner, ne∣ver to befully divested, till the acquirer were invested; this is clear, that by the resignation, the Fee falls in Non-entry' and is in the superiours hands, and while the resigner resigning in his own favours, bereceived, or the resigna∣tion past from: Or otherways, the acquirer be infeft, the superiour hath the Non-entry duties of the Lands resigned, if the Infeftment be not delayed, through his own fault. It is also clear, that by the superiours acceptance of the resignation, in 〈◊〉〈◊〉, there is upon him a personal obligation to Infeft that person in whose favours the resignation was made; and therefore, though the resigner dieuninfeft, his heir by a single service, hath right to that asother personal rights, and thereupon may compel the superiour to infeft him; yea, as Craig observeth in the fore-cited place, the Lords upon supplication, with∣out Citation, will grant Letters summarly upon sight of the Instrument of re∣signation, and warrand therefore, to charge the Superiour to Infeft the party in whose favour it was made, who may not receive another resignation, or nfeft an other party, or else his obliegement may make him lyable to the ob∣tainer of the first Resignation, pro 〈◊〉〈◊〉 & inter esse, if he be not in mora, in do∣ing diligence to get his new Infeftment expede, recenter; but the real right will be carryed by the first Infeftment, though upona posterior Resignation; and so posterior Decisions go along with Craigs opinion, not only in the case of the first publick Infeftment, upona second Resignation, but which is much more, after a Resignation, made a base Infeftment, flowing thereafter from the Resigner, and being but a short time before the publick Infeftment, upon the Resignation, yet was preferred thereto, as Dury observes, but expresses not the parties, July 22. 1626. As to the contrair Decision observed by Craig, it saith nothing, seing the first Infeftment upon the last Resignation, was in fa∣vours of the resigners Son, and so inter 〈◊◊〉〈◊◊〉, was fraudulent, which would not hold, so if that Son had been a stranger, acquiring bona fide, for a cause onerous, so then the Resignation, in 〈◊〉〈◊〉, doth not denude the resigner of the real right, but is incompleat till Infeftment follow; and there∣fore, a personal renunciation of him in whose favour it was, will fully evacuat the Resignation, and make the resigners Infeftment as intire as at first, which could not be without a new Infeftment, if the resigner had been divested, as in the case of a Resignation ad remanentiam, the Superiours simple renuncia∣tion or discharge thereof, could not revive the Vassalsprior Infeftment, but he behoved to be Infeft, de 〈◊〉〈◊〉, and though after the Resignation, till it be past from, or Infeftment follow, the Lands be in Non-entry, it will not con∣clude that the resigner is denuded, and the Fee is in the Superiour, more then other Non-entries, which give not the Superiour the property, but a Casuali∣ty of the Fee.

In what case Dispositions of Moveables or Lands, are holden to be simulate or fraudulent, hath been shown before, Title Reparation (upon Circumventi∣on or Fraud) wherein retention of Possession in Moveables is a main ground for presuming simulation, especially in gifts of Escheat; yet if the Disposition of Moveables bear expresly to take effect after the Disponers death, retention of Possession will not annul it, neither will it be esteemed as a Legacy, or do∣natio mortis causa, if death be the Term, and not the consideration of it, and it was not found ptejudged by the Disponers universal Legacy, March 8. 1626. Traquair contra Traquair.

13. So much for Conventional Conveyances of real Rights; Judicial Con∣veyances of real Rights, are competent, not by the nature of the right, which cannot be alienate without consent of the owner, and in the case of Infeftments, holden of the Superiour, without his consent, who is not oblieged to receive any to be his Vassal, but the Heirs and Successors of the first Vassal, provided in the first Investiture; and though the Investiture bear also, the Vassals Heirs and Assigneys, yet the Superiour cannot thereupon be compelled directly to receive a singular Successor, Assigneys being only meaned such Assigneys to whom the Dispositions should be assigned before Infeftment thereon, as was found in the case of recognition, Lady Carnagy contra Cranburn. February 5. 1663. But Law hath introduced in favours of Creditors, Judicial Conveyances, requiring no consent, but authority of Law, which hath also its Foundation in natural equity, by which, as Obligations are effectual for exaction of what is thereby due: So is there were no positive Law norCustom, the Creditor might exact, either what is due in specie, or the equivalent; and therefore, reprysals betwixt Nations not governed by one common Authority, are lawful: And by the custom of Nations, extended not only against the party injurer, who is oblieged to repair, but against all the Subjects of his Soveraign, if he do not cause reparation to be made. The Judicial transmission of Moveables, is by poynding, which being a legal execution, we shall leave it to that place. Ar∣restment and the action for making for the coming, do also transmit moveables; but is rather proper to personal rights, and so is competent against the havers of Moveables, by reason of that personal obligation of restitution, which is upon the haver to the owner, beside his own property.

Of old, alienations of Lands for money, were very rare in Scotland, or the contracting of considerable debts, for the Nobility and Gentry did then live in a plain and sober way, contenting themselves with that which their own Estates did afford: And there was then known no legal execution for Debt, against Lands or Heretable Rights, but only against Moveables, by the brieff of distress or Poynding; by which, not only the Moveables of the Debitor were poynded for his debt; but all the Moveables upon his Lands belonging to his Ten∣nents, as appeareth from Act 36. Par. 1469. bearing this Title, That the poor Tennents shall pay no further then their Terms Mail for their Lords Debt, by the Brieff of distress, which is correctory of the former custom, whereby the goods and cattel of the Inhabitants of the Ground were distrenzied for their Lords debts, though their Mails extended not to the avail of the debt, and that not only for real debts affecting the ground by Infeftments of Annualrent, Feu∣duties, or Casualities of Superiority, or other debita fundi, for which the Move∣ables of the Tennents and Possessors, may yet be poynded for the Lords debt, not exceeding their Terms Mail, which is ordinarly in their hand, or if pay∣ed, may be allowed in the next Term, but for the Heritors personal debt; for by the Act, the Debitors moveables in that, or any other Barony or Shire, are appointed to be poynded for satisfying of the Debt; but debita fundi, can on∣ly reach the Moveables of the Barony or Tenement affected therewith, and though that this Act, by its Tenor, would yet extend to poynding of Ten∣nents Moveables for their Masters personal debt, custom hath restricted it on∣ly to real debts, and it is intirely in desuetude, as to personal debts, which can∣not burden Tennents, but upon arrestment, in so far as they are then debi∣tors to their Masters.

Before this Statute in the year 1469. there is no mention in our Law or Cu∣stomes, of Appryzing or Adjudication: But Appryzing was thereby intro∣duced

in this manner, that where the debitor has not Moveable Goods but Lands, the Sheriff shall cause sell the Lands to the avail of the debt, and pay the Creditor, which shall be redeemable by the debitor within seven years, and if he cannot find a buyer, he shall appryze the debitors Lands by thirteen per∣sons of the best and worthiest in the 〈◊〉〈◊〉, least suspect to either party, and assign to the Creditors Lands to the avail of the sum, and the superiour shall receive the Creditor, or any othe buyer, for a years Rent, as the Land is set for the time; or otherways shall take the Land to himself, and undergo the debt. According to this Act, Appryzings did proceed by Sheriffs and Baihes, who for satisfying of debts, Liquidat by Decreets, issued Precepts for denunc∣ing such Lands to be appryzed upon fifteen days warning, conform to the act of Parliament, which denunciation was publickly read upon the ground of the Land, before witnesses, and a Copy thereof left fixed thereupon, and also at the Mercat Cross of the head Burgh of the Jurisdiction, where the Lands ly, and to the debitor whose Lands were to be appryzed, expressing the Creditor, sum, day and place of appryzing, that all parties interested might appear, persons of Inquest and Witnesses were also summond to the same dyet; and ordinarly the place was upon the ground of the Lands, that the value and worth thereof might the more clearly appear, where, after discussing of the Appryzers Claim, the hability of the persons of Inquest, and Witnesses, so much Land was appryzed and adjudged as was worth the sum, the years Rent to the Superiour, and expenses of Infeftments; and if the Lands were burden∣ed with any former annualrents, whereby a proportion of Land could not be appryzed, free of burden; there was appryzed an annualrent forth of the Lands, effeirand to the sums, and expenses foresaid, and redeemable in the same manner; which was sustained by the meaning and intent of the Statute, though by the words of it, appryzing of Lands was only mentioned, it was ever extended to all Heretable Rights; thus it continued till the Lords of Ses∣sion, upon exceptions against the Sheriff, upon his interest, relation, or eni∣mity, or upon the lying of Lands in diverse Jurisdictions, for preventing of expenses by many appryzings, where the Lands in one Jurisdiction sufficed not, did grant Letters of appryzing under the signet, direct not to the ordi∣nar Sheriffs, but to sherifts in that part, which being frequent, did come to run in course to Messengers, as sheriffs in that part, &c. And thereby the ap∣pryzer, in respect the Letters had a blank for inserting the Messengers name, did choise the Messenger, who did denunce all Lands and other Heretable Rights, which the appryzer pretended to belong to his debitor: And in re∣spect the Letters bore dispensation of the place, did apprize, at Edinhurgh, all that the appryzer clamed, in satisfaction of the debt, without knowledge or consideration of the value of the Lands, or others appryzed, or proportion to the sums appryzed for, and thereupon was Infeft in the whole, and payed to the superiour a composition for a years Rent of the whole, which was a con∣siderable accession to the Debitors debt, and behoved to be payed by him, and by the saids appryzings, the appryzer might, and oftentimes did enter in possession of the whole Lands, without being countable for the rents thereof, of what quantity soever: By this abuse, the intent of that excellent statute for appryzings, was enervat, and the same turned in a meer Formality, until the Par. 1621. cap. 6. which began to correct that exorbitant abuse, and declar∣ed appryzers countable for their intromissions, in so far as exceeded their An∣nualrents, to be imputed in their principal sums, pro tanto, and that they being thereby satisfied of their sums, principal and annual, composition to the superi∣our, and expenses of appryzing and infeftments, that thereby the appryzing should expyre, ipso facto, and it is also declared, that if the Lands appryzed

be not worth of free rent, effeirand to the annualrent of the said sums, that be∣fore redemption he shall be satisfied of the superplus. By which Act it is de∣clared, that Minors may redeem Lands appryzed from them at any time, with∣in their age of twenty five years compleat, yet so, that after the first seven year, the appryzer shall have the benefit of the whole Mails and Duties till he be re∣deemed, which hath always been extended to Lands appryzed from persons being Major, if a Minor succeed, during the Legal; and if a person being Major succeed to him who was Minor, he hath the benefit of Reversion of seven year, in so far as was not run in the Minors life, and if less remain then a year, at the Minors death, the Major hath a full year to redeem after the Minors death; and by the Act 1669. of the abrogat Parliament, 1641. ap∣pryzers were declared countable for the rents of appryzed Lands intrometted with by them, during all the time of the Legal, whether competent to Minors or others.

And because of another great abuse, by the debording of Appryzings from the first institution. that the first appryzer, appryzing the whole Estate, the other Creditors had no more but the Legal Reversion, which did ordinarly expyre, the subsequent Creditors not being able to raise money to redeem the anterior appryzer, whereby the first appryzer carried the whole Estate, and excluded all the rest, and being ashamed to take so great a Legal advantage, and sometimes not daring to make use of it, did ordinarly compone with the debitor, his appearand heir, or some confident to their behove, whereby the debitors heir recovered his whole Estate, by satisfying one Creditor, and ex∣cluding all the rest; therefore the Par. 1661. by their Act 62. anent debitor and creditor, declared that all appryzings deduced since the first of January 1652. or to be deduced in time coming, within a year after the first appryz∣ing, which became effectual by infeftment or Charge, should come in pari passu, as if one appryzing had been led for all the sums, and thereby the legal was extended to ten year; and it is declared, that whensoever the appearand heir or any to his behove, shall acquire right to any expyred appryzing, that the same shall be redeemed from them within the space of ten year, after their ac∣quiry, by posterior appryzers, upon payment of what they truly payed, in so far as shall not be satisfied by their intromission.

But neither did this statute cure the abuse of appryzings; and therefore the Act of Par. of the 6. of septem. 1672. upon consideration of debording of ap∣pryzings from the first design, and of the great inconveniencies arising there∣by for the bringing in of all appryzers within year and day, did give way to break the credit and ruine the interest of the most considerable Heretors in the Kingdom, that creditors being thereby invited, under the hazard of being excluded to appryze within a year; and thereby one wilful, malicious, or ne∣cessitous Creditor apprizing, all the rest followed, and intirely brook their credit, unless they would pay all their debt in one day; therefore, the Parli∣ament, did in place of Appryzings, ordain adjudications, to proceed before the Lords of Session, for adjudging the Lands and other Heretable Rights of de∣bitors, effeirand to the sums appryzed for, and a fifth part more in place of the penaltiies and sheriff-fee, and allowed Witnesses for either party, for clearing of the Rental and rate of the Lands, in the several places where they ly, and appointed the adjudger to have present Possession of the Lands adjudged, not being accountable for his intromission during the Legal, redeemable only with∣in five year, whereby the Creditor had easie accress for his satisfaction, with∣out all hazard or account, which had been the ground of many tedious Pro∣cesses

of Count and Reckoning for the Intromission of former Appryzers, and wherein the Adjudgers is to have the Consent of his debitor, both as to Right and Possession, and delivery of the Evidents; and it is declared, that if the debitor do not instruct, and deliver a good Right, and consent, as said is, that the creditor might adjudge all the debitors Estate in the same manner, and to the same effect, as is appointed by the Act of Par. 1661. between debitor and creditor.

We shall not here speak of Adjudications and Appryzings, as they are le∣gal Executions, and of the Order and Solemnities requisite to them, as such; but only as they are Conveyances of real Rights, wherein we shall consider; first, upon what ground Appryzings proceed. Secondly, against what Rights they are competent. Thirdly, what is the effect of the Process, or Decreet of Appryzing, without further Diligence. Fourthly, what is the effect thereof, when further Diligence is used. Fifthly, what is the effect thereof when In∣feftment is obtained. And lastly, in what manner it ceaseth and becometh ex∣tinct.

14. As to the first, Appryzing is an Appretiation and Judicial Vendition of the thing appryzed, from the Debitor to the Creditor; and as in all Venditi∣ons, there must be merx and pretium, or the price in numerat Money; for if the mutual consist in any thing else, it is not Sale but Exchange; therefore the ground of Appryzing must be numerate and current Money, and if originally it be not so, it must be liquidat before Appryzing can proceed; neither can it proceed but upon a Decreet establishing the Debt by Registration, or otherways in the person of the Appryzer active, and of the Debitor Passive; yet an Assigney intimating before the Cedents death, may Appryze summar∣ly without Action, establishing the Debt in his person, as hath been shown, Title Assignations. Neither could Appryzing proceed upon Heretable Bonds, unless the same had been made moveable, by Requisition or Charge; and there∣fore, was found null, proceeding upon an Heretable Sum, bearing a Clause of Annualrent, though payable without requisition upon a single Charge of six days, seing that Charge was not given July 20. 1622. John Cranstoun con∣tra Laird of East-nisbit. Hope Obligations, Alexander Mowat contra the Cre∣ditors of John Richardson. John Cranstoun contra Laird of Lugtoun. But Po∣sterior Decisions have run in the contrair, that if the sum were payable with∣out Requisition, Appryzing might proceed thereupon without a Charge, as well as Poynding or Arrestment, July 4. 1627. Edgar and Johnstoun contra Findlason. July 10. 1629. Clackmannan contra Barroun. In which case, the principal sum was payable at a precise Term, and no mention of any Term or time thereafter, and yet was Appryzed for, after that Term, January 25. 1642. John Seatoun contra James Loch. But if Infeftment have followed, or Requisition be requisite, the sum must be made moveable, before Ap∣pryzing: But other Sums, though by Destination Heretable, yet hav∣ing Summar Execution by the parties consent, Appryzing is sustained there∣upon.

15. As to the second point against what Rights Appryzings extend; First, though Letters of Appryzings contain power to poynd Moveables, which must be searched for; yet that which is properly called Appryzing, extends to no Moveables, but only to Heretable Rights, as Lands, Annualrents, Liferents, Tacks, Reversions, Heretable Bonds, July 25. 1623. Earl of Errel contra Buckie; and therefore, it extends not to the Mails and Duties of the Appryzed Lands, before the Appryzing, Feb. 14. 1623. Saltcoats contra Home. The like, though

the question was against the Debitor himself, and that the style of the Appyz∣ing bore, all Right that the Debitor had to the Lands to be Appryzed, March 13. 1627. Mackre of Balmagie contra Livingstoun. And where an Annualrent is Appryzed, it extends not to the bygone Annualrents, which are Moveable; but these being Moveable, are Arrestable, neither doth it extend to the Du∣ties after Denunciation, and before Appryzing, Feb. 16. 1633. Harper contra Cockburn and Johnstoun.

Appryzing is extended to all Heretable Rights, though they were not pro∣vided to Assigneys, but to the Debitor and his Heirs only, or failing, such Heirs to return; and therefore, publick utility and the favour of the Creditor makes it more effectual then any voluntar Disposition or Assignation could be, so an Appryzing was found to carry a Right, though not granted to Assigneys, Hope Appryzing, John Brown contra Fssilmont of Buckie. And a Husband grant∣ing Right to his Wife, but with provision that she should renounce it, if he re∣quired it in his own life allennerly, a Creditor of his Appryzing that Land, and requiring the Wife to renunce, was found to have right thereto, spots. Appryzing, Lady Huttonhal contra Cranstoun of Moristoun. An Appryzing of the ground Right and Property of Lands, and all other Rights, &c. car∣ryeth not only the Property, but all other real Right, or Obliegements for granting thereof, and though no Infeftment follow, the Appryzing so conceived will carry any Right, which requireth not Infeftment, as if it had been specially Denunced and Appryzed, June 19. 1635. James Rule contra Alexander Home.

16. To come now to the third Point concerning the Efficacy of the Process and Decreet of Appryzing, without further Diligence; and first, it hath the effect of an Assignation, without necessity of Intimation, and carries all Rights which require not Infeftments to transmit them, as Liferents, Reversions, Tacks And so an Appryzing was found to carry the Legal of an anterior Appryzing, though the Denunciation, whereupon it proceeded, was anterior to the De∣nunciation whereupon the first Appryzing proceeded, and thereby at the time of the Denunciation of the second Appryzing, neither was the first Appryz∣ing, in being neither the Denunciation thereof, and so could not be Denunced or Appryzed; yet the Denunciation of the Ground-right, and all Right com∣petent, or that might be competent to the Debitor, was found to carry the Reversion of the said first Appryzing, Novem. 18. 1624. Doctor Kincaid con∣tra James Halyburtoun.

17. Though second Appryzings carry the legal Reversions of anterior Ap∣pryzings without Infeftment: Yet Infeftment is frequently taken thereupon, that the posterior Appryzer may have Interest thereby, to reduce or quarrel the Anterior Appryzings, and to pursue for Mails and Duties, or Removing, if the Anterior appryzer should forbear.

18. The second effect of Appryzing is, that the Debitor is thereby so far divested, that after his death, Infeftment may be taken by the Appryzer, with∣out transfering or Infefting the Debitors Heir, Novemb. 20. 1624. Lag con∣tra his Tennents. So likewise the heir of the Appryzer dying before allow∣ance, or Infeftment upon Supplication obtained allowance from the Lords, and Letters to Charge the Superiour to receive him, Spots. hic, Alexander Fra∣zer Supplicant. The like was granted by the Appryzers Assigney, March 22. 1626. Collace contra Lord Elphingstoun. Yea, an appryzer did obtain allow∣ance

and varrand to Charge the heir of the Superiour, contained in the first allowance, being dead, Decem. 5. 1628. Laird of Corsbie contra Kilsyth. From this ground it is, that an Appryzing excludes prior assignations, granted by the Debitor, to the Mails and Duties of the Lands appryzed, as to Terms after the appryzing, Hope assignations, George Meldrum contra Laird of An∣struther.

19. And when an appryzing was led before an Husbands death, it exclud∣ed his Wife from a Terce, Hope appryzings, James Chrightoun contra Relict of John Cranstoun: Where he doth also observe it to exclude a subsequent Ward, in respect the Superiour gave a Charter upon the appryzing, in his Vassals life, though no Seasine followed thereupon, Ibidem, George Hamiltoun contra Tennents of Newburgh. And albeit Dury observes, that in the case betwixt the Lord Fleming and the Lord Balmerino, dispute the 7. of March 1633. it was not decided, but superceeded in hopes of agreement, whether a Superiour could be compelled to receive the Minor himself till his Majority, it seems the Supe∣riour ought to receive the appryzer upon his legal diligence, but prejudice of the Ward, during the Minority of his former Vassal, though he would not re∣ceive the Minor, yet he would be necessitate to receive the appryzer, and his heirs whatsomever, though the Lands were Tailzied, and to return to the Superiour himself.

20. The third effect of appryzing is, that being a legal diligence, it ren∣ders the thing appryzed litigious, not only from the date of the appryzing, but from the date of the Denunciation: So that no voluntary deed of the Debitor, after the Denunciation can prejudge the appryzer, if he be not in mo∣ra. Thus a Tack set by the debitor after Denunciation, was found null, Spots. appryzing, Peter Blackburn contra Walter Balvaird. Yet where the appryz∣er was negligent, and obtained not Infeftment, nor did diligence; therefore, for some years, a Tack set by a Debitor before the appryzing, but having its Entry after the appryzing, was preferred thereto, July 11. 27. Wallace contra Harvie. Yea, no Infeftment or diligence being used upon an appryzing, for many years, an arrestment thereafter was preferred to the Mails and Duties of the Landsappryzed, Feb. 14. 1623. Saltcoats contra Brown. But Custom since hath always preferred appryzings to arrestments, although there were no Infeftment or diligence upon the appryzing, because it is a legal assignation, and needs no Intimation, unless the appryzer had relinquished his right; and there∣fore, though that case of Saltcoats was adduced, an appryzer of an annualrent, was preferred to an arrestment, though the appryzer neither was infeft nor used diligence, for nine years before the arrestment, Feb. 23. 1671. Lord Justice Clerk contra Mr. John Fairholm. It is said, no voluntary disposition deed of the debitor after the denunciation, will prejudge the appryzing, because if the deed done thereafter be necessary, and that thereunto the debitor was specially oblieged before, and might have been directly compelled; such, even after denunciation may be preferred, as an annualrent proceeding upon a Bond, prior to the denunciation, containing an obliegemement to Infeft, in that annualrent, the Infeftment thereupon, though after denunciation was preferred, Hope appryzing, Samuel Henderson contra John Mcadam. The like of an Infeftment, whereof the Charter was before denunciation, and the 〈◊〉〈◊〉 before the Seasine upon the appryzing, Ibid. The like of an Infeftment upon Resignation; which Resignation preceeded the Denunciation; and though the Resignation was at first refused by the Superiour, being accepted thereafter, it was preferred, Ibid. Mr. Thomas Hope contra Mr. Thomas Hen∣drison.

And so an Infeftment upon a disposition for a Cause onerous: Which disposition was of the same date with the denunciation, and whereupon Infeft∣ment followed, before the appryzing was preferred to the appryzing, Spots. appryzing, Mark Hamiltoun contra Brown. Yea, an Infeftment upon a dispo∣sition, posterior to an appryzing, was preferred thereto, seing the Ap∣pryzer did no diligence for six years, Ibid. Hamiltoun contra Mccul∣loch.

21. In the competition of Appryzings being both legal diligences; The first appyzer doing sufficient diligence, is preferred as the first appryzer, last Infeft, but having 〈◊〉〈◊〉 Charged, was preferred, though the Superiour did vo∣luntarly Infeft a posterior appryzer, Jan. last, 1632. Ferguson contra Mckenzie. Yea, a posterior appryzing was preferred to a prior, where the debitor by Col∣lusion suspended the Letters, and denunciation of the one and not of the other, whereby the other appryzed first. Nov. 28. 1628. Borthwick contra Clerk. The like where the prior proceeded upon a Citation of the party upon sixty days, as being out of the Countrey, and the debitor was brought to the Coun∣trey of purpose, that a posterior denunciation upon fifteen days by another appryzer, might give him the first appryzing: and yet the other was preferred, Nicol. Tennents of Cockburnspeth contra Sir Hendry Wardlaw, and upon the late competition betwixt the Laird of Clerkintoun pursuing a Reduction of Corsbies appryzing, as collusive in so far as after his author Sir William Dick had Charged the Superiour, with the first Charge upon the Letters of four Forms, they gave Infeftment to Corsbie before the dayes of the first Charge were Ex∣pyred, the Lords reduced the Infeftment, but assoilzied him from bygones, as possessing bona fide, and seing the pursuer suffered him to possesse without pursuit, till the legal was expyred, they found that Corsbie, as now the second appryzer might redeem, December 3. 1664. inter eos∣dem.

22. The fourth effect of an appryzing is, that being led by the Superiour against his Vassal, it needs no Infeftment, but consolidats the property with the Superiority, and is preferable to all posterior appryzings, whatever be their diligence, Spots. appryzing, Stevinson contra Laird of Craigmiller. But in other cases, appryzing without further diligence, doth not transmit the real Right, though it may exclude assignations to Mails and Duties, or arrest∣ments upon personal debts, it is no sufficient title for Mails and Duties, against any other having any real Title, March 5. 1628. Andrew Scot contra Tennents of Whitesland.

23. As to the fourth point concerning the efficacy of appryzings, whereupon diligenceis used before Infeftment obtained. They have no effect to remove Tennents, though the Superiour was Charged, and the Letters found orderly proceeded against him, and though only proponed by the Tennents, and no party pretending right, March 25. 1628. Lockhart contra his Tennents. But the appryzing with diligence hath this effect; First, it is a sufficient title for Mails and Duties against the Possessors. Secondly, it excludes all posterior Infeftments or Diligences by the Collusion, or voluntary deed of the Supe∣riour, or any other. Thirdly, It is effectual to compel the Superiour to re∣ceive, and Infeft the appryzer upon payment to him of a years rent, which was formerly by Letters of four Forms, till the Statute, 1644. cap. 43. where∣by one Charge upon twenty one days is sufficient, all which proceeds upon the allowance of the Lords, upon the back of the appryzing: And albe∣it

the Act is not revived in the late Parliament, yet the Lords continue the Custome.

24. This allowance of appryzings is appointed to be registrate, and not the whole appryzing, Par. 1641. cap. 54. yet neither the want of the allowance, nor the want of Registration thereof, annulleth the appryzing, till the last Act of Par. 1661. cap. 31. making the Registration of the allowance necessa∣ry: Otherways posterior appryzings, first allowed, are to be preferred, un∣less without allowance the appryzer hath obtained Infeftment, before the others Diligence, upon which grounds, the Lords upon Supplication, with∣out Citation, ordained an appryzing to be allowed, and registrate long after sixty days, and after the debitors death, seing it would be there∣by preferable to all other Rights, after the Registration thereof, June 8. 1665.

25. There are many debates which arise concerning the Entry betwixt ap∣pryzers and Superiours, as whether the Superiour can be compelled to receive the appryzer, without instructing that the Vassal from whom he hath appryz∣ed, was Infeft, or specially Charged, which hath been several times decided Negative, fifty years since. But now of a long time, Charges against Supe∣riours for Infefting appryzers, salvo jure ejuslibet & suo, have been still sustain∣ed, because it is unusual and difficult for the appryzer to get his debitors Evi∣dents, unless it were the Extract of his Seasine, and the Superiours receiving him upon obedience, cannot prejudge him; and therefore, the Superiour was ordained to receive the appryzer, though himself was in possession, by vertue of a Right, March 5. 1634. Black contra Pitmedden. The like, whatever Right the Superiour might pretend, March 11. 2636. Margaret Scot contra Gilbert Eliot.

26. The quantity of the years Rent by the Act of Par. 1469. cap. 36. is ex∣prest to be a years Mail, as the Land is set for the time, wherein considerati∣on is had of such real burdens affecting the Land, as are taken one with the Superiours consent: But in the case of a Liferent so taken on, the years Rent was modified full, but delayed to be payed till the Liferenters death, July 18. 1633. Branden Baird contra Consideration is also had of Feus set by the debitor before the appryzing, which while warranted by Law, the Superiour will only get a years Feu-duty for receiving the appryzer in the Superiority, Feb. 15. 1634. Munktoun contra Lord Yester. Spots. ap∣pryzing, Walter Cowan contra Master of Elphingstoun. But the Superiour will not be oblieged to receive the appryzer for a years Rent of the Money ap∣pryzed for, but of the Lands appryzed, March 23. 1622. Mr. Simeon Ram∣say contra Laird of Corstoun. March 30. 1637. Thomas Peterson contra Walter Murray. Yet in this last case, the Lords modified the Rent far within the worth of the Lands, for the Rent being worth 800. Merks, was modified to 300. Merks.

A Superiour must not only receive the first Appryzer, but all others who Charge, though one was Infeft before any other Charged, March 11. 1628. Ferguson contra Couper. And if more Charge, he must accept a years Rent for all, providing that he who should be preferred, refound to the rest the proportions payed by them to the Superiour, July 22. 1628. Lord Borthwick and Walter Hay contra Haistoun and Smith.

27. If the Superiour be contumacious, and will not enter the appryzer up∣on diligence, Craig lib. 2. dieg. 2. Prescrives, that the Superiour may be thrice required, and if he refuse, Letters may be obtained from the Lords to Charge his Superiour, to receive the appryzer, supplying his place, and so from Superiour to Superiour, till he come to the King, who refuseth none, by which the Superiour would loose the Casualities of his Superiority, during his Life, as is ordinary in the Entry of heirs upon retour.

28. As to the next Point, Infeftment following upon appryzing doth Con∣stitute a real Right, but under Reversion of seven years, being before the Act debitor and creditor, Par. 1661. cap. 62. or since of ten years, which is counted from the date of the Appryzing, and not from the allowance, or Infeftment, November 11. 1630. Laird of Limpitlaw contra Mr. James Aikenhead.

29. Yet it remains but as a security, which the appryzer may renunce, or make use of other securities till he be satisfied, March 15. 1628. Lord Blantyre, contra Parochioners of Bothwel. The like, though after the Legal was expyred, Decem. 7. 1631. Scarlet contra Paterson. But here the appryzer had attained no Possession.

30. Remains the last Point proposed, how appryzings become extinct, and are taken off; and that is first, when the appryzing is declared null, thorow defect of any essential Solemnity. Secondly, When the sum whereupon it is de∣duced, is not due, as when the half thereof was payed, Hope appryzing, Sa∣muel Blackburn contra James Lamb. James Lamb contra Hepburn of Smeatoun. Or being deduced for a Terms Rent, which was not due till after the appryz∣ing; albeit it was an assigney who appryzed, seing it was to the behove of the Cedent, it was found relevan to reduce the appryzing in totum, June 20. 1678. Scot of Burnfoot contra Sir John Falconer and James Edmonston. Jan. 31. 1679. Francis Irving contra contra Laird of Drum. The like, where a part of the sum was Poinded for, and yet the appryzing was for the whole, Nicol qui potiores in pig∣nore, John Steven contra Maxwels: Or where the denunciation was before the Term of payment, though the appryzing was after, Nov. 28. 1623. Mr. Robert Craig contra Wilson. And an appryzing for two Sums, instead thereof as to one of which sums the decreet was loosed & turnedin a Lybel, before the appryzing was deduced: Yet the appryzers intromission thereby before Citation, was not found to be repealed, as being consumed bonafide, upon a colourable Title, Nov. 23. 1677. Boid and Graham contra Malloch. And an appryzing was reduced, because one of the sums appryzed for, was Registrat, a non suo judice, July 20. 1678. Moreis contra Orrock of Balram. In which case the Lords would have sustain∣ed the appryzing as a security for the true sums resting, if the appryzer would have past by the Termly failzie; for the Lords do frequently Supply defects in appryzings or adjudications, in so far as they may stand as securities of true debt, and real expence, especially when the question is betwixt the debitor and the appryzer, but not in competition with more formal Rights, and they are most strict against appryzings or adjudications, when they are insisted upon, as expired, or for penalties, Sheriff-fees, and the annualrents thereof; and there∣fore, a posterior appryzing being solemn and formal, according to the Cu∣stome then in use, was preferred to a prior not being so formal, July 15. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon. And likeways, an appryzing be∣ing led for Penalties and termly Failzies, was reduced as to these, because a part of the sum was not due at the date of the appryzing, though it was de∣duced

at the instance of an assigney: But if it were proven to the Cedents behove, it was also found reducible, quo ad, the accumulation of the annual∣rents, and making them and penalties Principal sums. But seing the appryzer declared it redeemable, though the Legal Reversion was expyred, it was su∣stained as a security of the first principal sum, and current annualrents thereof, Jan. 31. 1679. Francis lrving contra Laird of Drum. And appryzing was su∣stained upon a Bond, bearing a long Term of payment, with a Clause irri∣tant, that if two Terms annualrent run together unpayed, the whole prin∣cipal and annual should be payable, without abiding the first Term, though there was no Declarator of the irritancy, it not being penal, but taking away the favour of the Creditor to the debitor, by delay of the term, June 20. 1678. Scot of Burn-foot contra Falconer and Edmi∣stoun.

31. Albeit the Lords do not ordinarly modifie Penalties after appryzing; yet if they be exorbitant, they do modifie the same, and all Term∣ly Failzies, as they did in the said case of Orrock of Balram and Francis Irvin.

32. Appryzing was sustained upon a sum, payable without Requisition, albeit there was no Charge preceeding the appryzing, July 21. 1666. Mr. John Thomson contra Mcgutrig. The like, though the Bond bore annualrent before 1641. seing there was no Infeftment thereupon, or Requisition therein, Jan. 14. 1679. Farquhar of Finian contra Robert Stuart.

33. And an appryzing was sustained, though the Lands appryzed were not filled up in the Letters of appryzing, or special Charge, nor in the Exe∣cutions, because the Messenger who execute was Judge in the Appryz∣ing, which relating the Denunciation of the Lands particularly, and Charg∣ing the appearand heir to Enter thereto in special, was found a more solemn Execution, then any Execution a-part, Jan. 16. 1680. John Brown contra Nicol.

34. An appryzing was sustained without producing the Letters of ap∣pryzing, being in anno 1636. But the Instructions of the debt was found necessary to be produced, being within Prescription, February 11. 1681. James Kenuay contra Thomas Crawford: Yea, an appryzing was su∣stained upon a Bond, payable upon Requisition, though the appryzing made no mention of the Requisition, the Instrument of Requisition being produced.

35. And though the Dispensation to appryze, was neither at Edinburgh, nor the head Burgh of the Shire, but a place upon the open Fields, and upon a count of a great rain, the Messenger did not appryze that day, but adjurn∣ed the Court of appryzing til the next day, July 12. 1671. the heirs Mr. Tho∣mas Lundie contra the Earl of Southesk.

36. And an appryzing of the ground-right of Lands, and all other right belonging to his debititor, the Superiour being Charged thereupon, was preferred to a posteriour appryzer, who appryzed particularly an annu∣alrent out of the Lands, which was the only Right of the common debi∣tor, November 21. 1673. Mr. John Fairholm contra Rentoun and the Countess of Levin.

37. Appryzings are elided by satisfaction or payment, without necessity of Renunciation, Resignation, or Reduction, as in the case of other Infeftment, July 25. 1626. Lord Lovat contra Frazer: The reason is, because appryz∣ing being but a legal diligence, for security of the sum, which ceassing, it fal∣leth without other solemnities; and the dobitors own Infeftment stands valid, without Renovation; which, with the Infeftment upon the Appryzing, stood but as a paralel Right for security, so that all returned, adpristinum statum; and amongst the rest, the Casualities of the Superiority, if they were taken off by the appryzing; and therefore, an heir not entering, but being Charge∣ed, if he satisfie and redeem the appryzing, he will be in non-entry till he be received of new.

38. Appryzings are excluded and qualified with the Back-bonds and obliege∣ments of the appryzer, as in personal Rights, which are valid against singular Successors, as a back-bond, that an apprysing should not be prejudicial to anothers parties Right, was found relevant against the appryzers singular Suc∣cessor, the Kings Donatar of the appryzers forefaulture, July 31. 1666. the Earl of Southesk contra Marquess of Huntly.

The last and most ordinary Exstintcion of appryzing, is by Intromission with the Mails and Duties of the appryzed Land over and above the annualrent, for these are imputed in the principal Sum, by the Statute, Par. 1621. cap. 6. which is also extended to Minors having the priviledge after the ordinary legal of seven year: But it was not provided for in the said Statute, that the ap∣pryzer should be countable for his Intromission thereafter, which is therefore provided for, Par. 1641. cap. 67. which, though it was neglected, and not revived, Par. 1661. yet the Lords sustained the same, as now in Custom twen∣ty years and more, Feb. 18. 1663. John Ross contra Mckenzie. But the Te∣nor of the said first Statute; being, that the quantities of the Mails and Duties shall extend to as much as will satisfie the whole principal sum, and annual∣rents thereof, composition to the Superiour, and annualrent thereof and ex∣penses, in deducing the appryzing: In that case the appryzing is declared to expyre, ipso facto; So that if any part thereof remain, and the debitor be so ne∣gligent, as not to use an Order, and count and reckoning within the legal, but suffer it to expire, the appryzing will stand valid, and carry the Right of the whole Lands, and will not be extinct in so far as satisfied proportionally, Hope Confirmation, Doctor kincaid contra Halyburtoun, which was so found, where a part of the sum was satisfied, by payment, Novem. 28. 1623. Mr. Robert Craig contra Wilson. But if the remainer be very small, the Lords may be the more strict in modifying pryces, and if that be not sufficient, a small re∣mainder will not take away the Right, de minimis non curat Lex. Intromis∣sion is not only extended to the Rents and Profits of the appryzed Lands, but to the pryce of any part thereof, sold by the appryzer within the Legal, Jan. 14. 1669. Mckenzie contra Ross. And ansappryzing was also found extinct by the Intromission of him, to whom the appryzer granted Back-bond, de∣claring the appryzing to be to his behove, and that against a singular Successor, who thereafter was Infeft upon the appryzers Resignation, July 12. 1670. Ken∣nedy contra Cunninghame and Wallace. Yea, An appryzing was found exclud∣ed, as being satisfied by the debitor, and retired by him, with a blank Assigna∣tion thereto, lying by him at his death, though his Son thereafter filled up his name therein, which was instructed by the sons oath and witnesses, ex officio, Feb. 27. 1666. Creditors of the Lord Gray contra the Lord Gray. But an ap∣pryzing was not found extinct by Intromission, where the appryzer payed to

his debitor, the superplus of the rent, above his annualrent, before the lead∣ing of any other appryzing; yet where any order of Redemption is used be∣fore the expyrie of the legal, the appryzing was found extinct by intromis∣sion, after the course of the legal, July 7. 1676. John Edgar contra Patrick Milu. The like was found in respect of an order, used by a second appryzer, and was sustained, though the first appryzer had acquired right to an order of Redemption by a third appryzer, used against the second appryzer, which was not found to hinder the second appryzer, to declare the first appryzing satisfied by Intromission during the legal or the order, but prejudice to the third appryzer, or to the first appryzer, having Right from the third appryz∣er to Redeem the Lands from the second appryzer, by satisfaction of the sums due to him, July 18. 1676. Gordoun of Seatoun contra Watson. Yea, an ap∣pryzing being both against the Principal and Cautioners Estates, an or∣der of Redemption used by the principal debitor was found to keep the appryzing unexpyred, not only as to his own Estate, but as to the Cautioners Estate, February 10. 1675. Lady Torwoed-head contra Florence Gardner.

39. But the appryzer hath it in his option, whether he will enter in Posses∣sion of the Mails and Duties, or will uplift more thereof then his annualrent; yet if a posteriour appryzer insist for Possession, the first must either Possess, do diligence, and be countable, or suffer him to possess, February 11. 1636. Colqhoun contra Laird of Balvie. But if the appryzer possess, he must do di∣ligence for the rent of that Land he possest, and be countable, not only for what he intrometted with but for what he might have intrometted with; and if the Lands were Tennent-stead at his entry, he must count accordingly at that rate, though thereafter given over and waste, if he neither set nor laboured them himself, nor intimat to the debitor so to do, Feb. 9. 1639. Brownhill contra Cawder. The like found, that the appryzer was countable according to the Rental, allowing all defalcations, Jan. 4. 1662. James Seaton contra Antony Roswal. But where the appryzer entered in possession of the Lands waste, he was not found countable, according as he set them thereafter, for the first year of his proper Labourage, seing by the Season without his fault, he lost thereby, Decem. 23. 1629. John Dickson contra Young. But an appryzer was found countable for the Rental of all the Tennents of a small Tenement, lying contigue, having taken Decreet against all the Tennents, and yet refusing to count for some particular Rooms, without showing any hinderance to uplift from these, which other appryzers calling to account, could not know that he had forborn these, but nothing was determined as to the common debitors own labourage, Jan. 14. 1681. Schaw of Grimmat contra John Mure Writer. Yet where the appryzer was disturbed in his Possession by the debitor, Via fa∣cti, or via juris, he was not found countable by a Rental, but what he recover∣ed till he attained to peaceable Possession, Jan. 20. 1681. Burnet contra Burnet of Barns.

40. The Act of Par. 1661. cap. 62. hath lengthened the legal of appryz∣ings, and hath brought in all who appryze, within a year of the first effectu∣al appryzing, pari passu. By this Act these, these alterations are introduced as to appryzings: First, Whereas before the first appryzer being infeft or doing diligence, had only access to the whole appryzed Lands till he were sa∣tisfied: Now the Lords are impowered to limit the Possession during the le∣gal, as they shall see cause, the appryzer getting his annualrent or security therefore; and therefore, an appryzer pursuing for removing, and Mails and

Duties, his pursuit was only sustained, for so much of the appryzed Land as she should choose, the rent whereof would be equivalent to eight per cent. of the sums appryzed for, he being countable for the superplus, more then his annualrent and publick burdens, the defenders House and Mains being always excepted, seing there was sufficient of other Rents, June 27. 1672. Nicolson contra Sir William Murray. But the power granted to the Lords to restrict appryzers, is only personal and peculiar to the debitor, and not to the poste∣rior appryzers, July 28. 1671. Murray contra Earl of Southesk and others. Secondly, All appryzings led since the first of January 1652. before the first effectual Compryzing, obtaining Infeftment, or charging the Superiour to re∣ceive, or within a year after the same, or to be led thereafter upon any perso∣sonal debts, come in pari passu, as if they all had been contained in one com∣pryzing, the other appryzers paying to the first effectual Compryzer, the ex∣penses of his compryzing, and Infeftment thereupon, but the year is not to counted from the Infeftment or Charge, by which the appryzing becomes ef∣fectual, but from the date of the Decreet of appryzing, July 4. 1671. Laird of Balfour contra Mr. William Dowglas. But this extends not to appryzings or annualrents, or other debita fundi; and accordingly it was decided by the Lords, that those other appryzers behoved to pay the whole composition to the Superiour, Feb. 5. 1663. Robert Graham contra John Ross. Yet these ap∣pryzings that were prior to the Act, were not found to come in pari passu, from the dates of the appryzings, albeit the Act bear, that they should come in as if they were in one appryzing, but only from the date of the Act of Par∣liament. And as to what the first appryzer had possessed, bona fide, before the act of his intromission, exceeded his annualrent, the same should be im∣puted to the expenses of the compryzings and composition, and in payment of the sums appryzed for, pro tanto, Jan. 7. 1665. Graham of Blaitwood con∣tra Browns.

But an appryzing led before January 1652. though Infeftment or Charge were used thereon, after Jan. 1652. was found to exclude all appryzers after Jan. 1652. whose Infeftment or Charge were posterior to the Infeftment or Charge upon the appryzing, led before Jan. 1652. and that the said posterior appryzing did not come in pari passu, with that led before Jan. 1652. Because the Act of Parliament relates nothing to appryzings deduced before Jan. 1652. Decemb. 12. 1666. Sir Henry Home contra Creditors of Kello. And albeit the first effectual appryzing was satisfied, and so extinct; yet it did stand valid as to the second appryzing, within year and day; but a third appryzing was not found thereby to come in pari passu, with the second appryzing, as being within year and day thereof, as if the second appryzing became the first ap∣pryzer, Decemb. 13. 1672. Street contra Earl of Northesk and James Deans. Feb. 20. 1679. Tennents of Mortoun contra Earl of Queensberry. And where the first appryzer 〈◊〉〈◊〉 but a part of the Lands appryzed, the second appryzer not Infeft, was preferred to the third appryzer Infeft, as to the remanent Rents, because the second appryzer needed no Infeftment, but the Infeftment upon the first appryzing was sufficient for all the appryzings led within the year of the first, Decemb. 22. 1664. Doctor Ramsay and William Hay contra Alexander Seatoun. There is also an exception from this Clause, by another Act of Parliament, 1661. cap. 21. Session 3. that second apprysers shall not be pre∣judged if they did acquire right to a former apprysing, redeemed and satisfied by them, for their own security, before the said Act, albeit led since Jan. 1652. which first comprysing shall remain in the same case, as apprysings were formerly; it was so decided, without necessity to alledge that Right was ta∣ken

to the first apprysing, to shun the expyring of the legal, or any other ne∣cessary cause, Decemb. 9. 1664. Veatch of Dawick contra Alexander Williamson. Thirdly, The extent of the legal is altered from seven years to ten years; so that where the legal was not 〈◊〉〈◊〉 the time of the act, three years were al∣lowed to redeem them, from Whitsonday 1661. which terminated at Whitson∣day, 1664. Whereanent it being questioned, whether intromission during these three years, should satisfie apprysings, which being deduced since, Jan. 1652. were expyred according to the Law then standing, and disponed to others, there being no mention of that Point in the said Act, the Lords decided affirmative, January 20. 1666. Clappertoun contra Laird of Tor∣fonce.

41. Fourthly, The benefit of Redemption is competent to Creditors against the appearand Heirs of their Debitors, acquiring right to expyred Compryzings, which was extended to appearand Heirs, even during his Fa∣thers Life, June 19. 1668. Burnet contra Naesmith, or any person to their be∣hove, acquiring right to appryzings within ten years after the acquirers right, for such sums only as they payed for acquiring thereof, and they were found extinct by the appearand Heirs intromission by exception, which was so far ex∣tended, that it reached an appryzing assigned to an appearand Heir, though the assignation was before this Statute, seing the infeftment which made the ap∣pearand Heirs Right real and effectual, was after; and though the appryzing was redeemable when acquired, but expired in the person of the appearand Heir, July 21. 1671. Sir George Maxwel contra Maxwel of Kirkconnel. But the appearand heir getting right to the appryzing, gratis, it was not found to accress to the Creditors, but only to be redeemable within ten years after his Right, for the sum whereupon the appryzing proceeded, Feb. 13. 1673. intereosdem. An appryzing acquired by the Husband of an appearand Heir, found not redeem∣able by what be payed, unless it were proven that it was acquired by the Wifes Means, or upon her account, June 13. 1674. William Richardson con. Palmer. Feb. 21. 1673. Richardson contra Colline Laumond and Skeen of Halyards. Jan. 15. 1679. An∣drew Mcdowgal contra Sir Hendrie Guthrie and his Spouse. But this ten years Reversion was not found competent to the debitor himself, to redeem from his appearand heir, Decem. 3. 1680. Sir Michael Naesmith contra James Naesmith. But a second Brother acquiring an appryzing upon easie terms, when his elder Brother was out of the Countrey, was not found redeemable by this Act, not being esteemed as appearand Heir, alioqui successurus, Feb. 17. 1675. John Mclurg contra John Gordoun.

And an appryzing coming to the person of the appearand Heir of the prin∣cipal debitor, found satisfiable by the sums payable therefore, by the appear∣and Heir, summarly without reduction, Feb. 22. 1671. Sir David Dumbar of Baldoon contra David Dick. The like found by exception or reply, where the appryzing was to the behove of the debirors eldest Son, July 4. 1671. Laird of Balfour contra William Douglas. The like, where the apprizing acquired by the appearand Heir, was found satisfied by intromission equivalent to what was payed for the appryzing: the said intromission being either within the ten years, or after the intenting a summons of Declarator, offering to pay what remained after count and reckoning, it was found to prorogate the ten years Reversion, without any other order, June 26. 1677. Mr. John Kincaid contra Gordoun of Abergeldie.

41. Apprysings deduced against appearand Heirs, specially Charged to en∣ter Heir, are not redeemable by the Heir of the Party Charged to enter Heir who was never Infeft, but by the Heir of the Defunct, for whose debt the ap∣prysiing was deduced, who died last vest before the apprysing, February 6. 1668. January 19. 1669. Mr. John Johnstoun contra Sir Charles Ers∣kine.

42. Minors have a special priviledge, that the legal Reversions of ap∣prysings, run not against them during their Minority; and how far this is extended to Majors succeeding to Minors, Vide Tit. 6. amongst Priviledge of Minors, Vide, what hath been said of apprysing, Tit. 13. Section 29. and 30.

43. Apprysing while it is redeemable, is but a legal diligence for security; and the appryser may relinquish the same, though he be in Possession, and may do any other diligence for recovering his debt; but if he continue to Pos∣sess after the apprysing becomes irredeemable, the debt is thereby satisfied and extinct, which was so found, albeit the apprysing proved ineffectual as to a part of the Lands apprysed, the remnant being equivalent to the debt apprysed for, and it was not found, that a proportional part of the sums ap∣prysed for, correspondent to the Lands that were evicted, should remain due to the appryser, June 18. 1675. Laird of Leys contra Forbess of Black∣toun.

The form and manner of Procedure in apprysings will come in amongst legal executions of which hereafter.

44. Adjudication is remedium extraordinarium, introduced by Custom, where apprysing could have no place, as when the debt to be satisfied is not a liquidat sum or goods ordinarly liquidable, but is a disposition of Lands, containing expresly or virtually, an Obligation to Infeft the acquirer, or some other: Or an Obligation consisting in some fact to be performed: Or other∣ways, where the debitors heir renunces to be heir, whereby there is no Party from whom the Lands can be apprysed; therefore, Haereditas Jacens is adjudg∣ed. This remeid is introduced by the Lords, who having ample power to administrate Justice in all cases, and to make orders for that effect, do supplie the defect of the Law, or ancient Customs, by such new remeids, as such new occurring cases do require, amongst which adjudication is a prime one, which Craig testifieth to have been unknown to our Predicessours, and being but recent in his time, and few decisions thereupon, the nature and effect of it was little known, but is now by course of time further illustrate.

Adjudication hath place in two cases; the first and most ordinary is, when the heir recounces to be heir, in which case adjudication is competent, whe∣ther the debt to be satisfied be liquidate or not. The other is, when the ob∣liegement to be satisfied consisteth in facto, and relateth to the Disposition of particular things; which Disposition or Obliegement, not being fulfilled by the debitor or disponer, though all ordinary diligence be done, then adjudi∣cation taketh place to make the same effectual.

As to the first case, adjudication upon the appearand Heirs renuncing to be heir, proceedeth upon these ways, if he be pursued as lawfully Charged to en∣ter heir, for satisfying of his Predicessors debt or obliegement, he may renunce

to be heir (if he have not meddled) either in the Process against him, as Charged to enter heir in the first instance, or some time thereafter, by Suspen∣sion or Reduction, if he renunce in the first instance, when the debt is not yet instructed and established, as when it proceeds not upon a clear Bond or Write, but abides Probation by Witnesses, or otherways then before the Process of adjudication, there must be a Process and Sentence against the heir renunc∣ing cognitionis causa, for establishing and proving the debt; in which, because there is necessity in all Processes, to have a defender, the appearand heir re∣nuncing, is only called to supply that place, cognitionis causa, but without any effect against him, but only contra haereditatem jacentem. But if the appear∣and heir renunce in the second instance, after Decreet obtained against him; Or in the first instance, when the Ground and Title of the Pursuite instructs the debt, then there needs no other decreet, cognitionis causa; but the Pursuer Protesting for adjudication, the same will be admitted sum∣marly.

Adjudication it self is a most simple and summar Process, whereby the heir renuncing, and the debt being established, as said is, the whole heretage re∣nunced, orbenefite, whereto the heir might succeed, is adjudged by the Lords to the pursuer for satisfaction of the Defuncts obliegement, wherein the heir re∣nuncing is again called to sustain the part of a defender, which is only for forms sake, for he can propone nothing, and one single summonds is sufficient with∣out continuation; because it is accessory to a prior Decreet, as Dury observes, but expresseth not the Parties, Feb. 26. 1629. And all is adjudged, periculo potentis, whatsoever the Pursuer pleaseth to Lybel, alledging that it might have belonged to the heir entring: Yea, though any Party having Interest, should compear and instruct that he hath the only Right, and the Defunct was fully denuded; it would be incompetent, hoc loco, Spots. adjudication, Cairncorss contra Laird of Drumlanrig.

46. The reason is, because the Adjudication is but periculo petentis, and can give no Right, unless the Defuncts Right, competent to the heir renuncing be instructed. Neither can the adjudger, who is a stranger to the debitors right be put to dispute the same, in obtaining the adjudication; yet the Lords admitted a singular successor to propone upon his Infeftment, that the Defunct was denuded and adjudged, not the Property, but all Right of Reversion, or other Right competent to the appearand heir, July 22. 1669. Alexander Li∣vingstoun and Sornbeg contra heirs of Line of the Lord Forrester. In this case the matter was notour to many of the Lords, that the Lord Forrester hav∣ing no Sons, did contract his Estate with one of his Daughters, to Leiutenent General Baities Son, who was thereupon publickly Infeft. But the reason why appryzings and adjudications have past so much at Random is, because the appryzings have deboarded from their ancient form, by an Inquest, know∣ing the Lands, which therefore would never have appryzed Lands, but where the debitor was commonly repute Heretor, or Heretable Possessor: But when appryzings came to be deduced by Sheriffs in that part, constitute by the Lords by Dispensation at Edinburgh, where persons were made the Inquest, who knew nothing of the Lands, then all became to be appryzed which was claimed, and though the appryzer would not pay a years Rent for entering him in Lands, where he had no probability of Right in his debitor; the great∣est inconvenience was as to the Lands holden of the King, it was little ad∣dition of Expences, to passe one Infeftment for all; and other Superi∣ours,

getting a years Rent, salvo jure, they were not suffered to Contra∣vert.

But now Adjudications being in place of Apppryzings, and passing upon Citation before the Lords, it is not like they will adjudge Lands where the De∣bitors are not, at least repute heretable Possessors or Liferenters; for now the Lords are in place of the Inquest: And albeit as they suffer Decreets in ab∣sence, to pass periculo petentis; so they will suffer Adjudication to pass of all that is Lybelled; but if any other shall appear, and make it appear that they and their Predicessors have been holden and repute Heretable Possessors, and that there was no Right repute to be in the Debitor, the Lords might readily superceed to adjudge, till some evidence were given of the Interest of the de∣bitor, Seasines having been now Registrat, since the year 1617. And like∣wise Reversions, though adjudicationes, of these might more easily pass then, because no Infeftment would follow: But where Lands are adjudged, and Infeftments follow, there arises thence grounds of pleas and pursuits, especi∣ally for Reduction and Improbation, upon which all the Heretors of the Lands contained in the Infeftments, would be oblieged to produce their Rights, and open their Charter Chests, to parties having no pretence to their Estates. The adjudication was sustained of all Lands generally, without condescendence, Decemb. 14. 1638. Corser contra Dury. But where the Defender appeared not, or contraverted it not in the adjudication, Process for Mails and Duties of the Lands adjudged, was sustained in the same Libel, Ibidem. And in adjudication of a Reversion, the Declarator for redeeming the same, was sustained in the same Lybel, July 8. 1629. Dury contra Kinross.

47. In adjudication all is competent to be adjudged, Which should have be∣fallen the heir entering, as Lands, Annualrents, Reversions, Tacks, Liferents, and all Heretable Bonds; yea, not only these Rights themselves, but the by∣gone Rents and Duties thereof, preceeding the adjudication, and after the Defuncts death, may be adjudged and pursued against the Possessors and In∣trometters in that same Process, because these are competent to the Heir re∣nuncing, and there is no other way to attain them, as in the case of appryz∣ings, which are not extended to bygones, seing these may be arrested, and pur∣sued as Moveables belonging to the Debitor, as was found in the said case, Cor∣ser contra Dury. Decemb. 14. 1638. And likewise, heirship Moveables, for the same reason are competent in adjudications, but not against other Move∣ables of the Defunct, which may be confirmed, Spotswood Caption, Isobel Ha∣gie contra her Daughters. Novemb. 24. 1638. Campbel contra John Baxter: and so it is not competent against an Heritable Bond, made moveable by a Charge, Jan. 30. 1627. Couper contra Williamson and Bogmiln. Yet if an He∣ritable sum should become moveable after the Defuncts death, as by an order of Redemption, it would be competent by adjudication, seing it could be reach∣ed no other way. In adjudications it is only competent to Creditors to appear, having like Process of adjudication depending, for all will be brought in pari passu, who are ready before Sentence, with the first pursuer, Hope adjudicati∣ons, Stuart contra Sturt.

48. If the adjudication be of Lands or Annualrents, requiring Infeftment, the Superiour will be compelled to receive the adjudger, though a stranger his Vassal, though he do not instruct his Authors Right, salvo jure cujustibet &

suo, Feb. 9. 1667. Elizabeth Ramsay contra Ker. But as to the years Duty, payable by the adjudger to the Superiour, for their Entry, though the Lords thought it equitable, that it should take place, as well in adjudications as appryzings, the reason being alike in both, yet found not sufficient ground, whereupon to decern it, seing the said years Rent is exprest in the Act of Parliament, 1469. cap. 36. And the Composition of the Superiour, for receiving appryzers, Parliament 1621. cap. 6. Yet in the next Act of the same Parliament, anent adjudications, there is no mention of Compo∣sition to the Superiour, though the Act relateth to the former Act, anent appryzings; and therefore, they thought it not competent to them to ex∣tend the said composition, ad pares casus, where it did so much appear, that the Parliament of purpose had omitted it; yet in the said case, Greir∣son contra Closburn upon the 21. of July 1636. they did forbear to inti∣mate their Decision, and desired the parties to agree. And no Composi∣tion was found due by an Adjudger, having Charged before the late Act of Parliament, December 23. 1669. whereby, like Compositions are ap∣pointed for Adjudication, as for appryzing, July 10. 1671. Scot of Thirle∣stain contra Lord Drumlanrig. In which case, it was found, that the Su∣periour might refuse to enter the Adjudger, if he payed his debt; but that he was to have nothing for Composition, if he did so in the same way, as in appryzing, by the old Act of Par. 1469. cap. 36. by which that option is given to the Superiour.

49. Craig observeth, that it was doubtful in his time, whether there were a Legal Reversion competent to any renuncing, and afterward returning to Redeem Adjudications or Appryzings, wherein he favoureth the affirmative, but the said Statute, Par. 1621. cap. 7. determineth the case, and granteth a legal Reversion, in favours of these who have posterior Adjudications, with∣in the space of seven years, or ten years since the Act of Par. 1661 betwixt Debitor and Creditor, which is also competent to any Renuncing in their Minority, and being restored against the said Renunciation; but it is not competent to any other Heir renuncing; yet if the Heir, though Major, find that he hath prejudged himself, by renuncing a profitable Heritage, he may grant a Bond, and thereupon cause within the legal, adjudge and redeem the former Adjudications, which, though to his own behove, will be effectu∣al, there being so much equity and favour upon his part, being willing to sa∣tisfie the whole debts.

50. It is clear by the said Statute, the Lands or Heretage of a Defunct may be Adjudged, the heirs renuncing, not only for satisfaction of the Defuncts debt, but of the heirs own proper debt.

51. Adjudications are taken off and extinguished in the same manner as ap∣pryzings are, by intrometting with the Mails and Duties of the Lands adjudg∣ed, as is clear from the said Statute. And though cases be not so frequent in Adjudications, as in appryzings; to clear the other ways of their extinction: Yet the reason being the same in both, there is no doubt but the determination will also be the same.

52. The other manner of Adjudications, is for making effectual Dispositi∣ons or obliegements to Infeft, whereupon, when the acquirer hath used all diligence competent in Law, against the disponer to fulfil the same, by obtain∣ing

Decreets and Horning Registrat thereupon, either against the Disponer or his Heir, Law being there defective, and cannot make the Disposition or Obliegement effectual; the Lords have allowed Adjudications of the Lands disponed, whether in Fee or Liferent, July 19. 1611. Lord Johnstoun contra Lord Carmichael, Spots. hic, contra Bruce of Airth.

And thereupon the Superiour will be discerned to receive the Adjudger, as was found in the case of an Obliegement to Infeft a Woman in Liferent, holden of the Superiour, wherein she having used Horning, the Superiour was decerned to receive her, July 10. 1628. Harris and Cunningham contra Lindsay. Feb. 24. 1675. Marion Hamiltoun contra Mr: William Chiefly: The like in the case of an Heretable Disposition, whereupon the acquirer having obtained Decreeet against the disponers heir, for Infefting him, and used Horning thereupon: The Director of the Chancelary was decerned to Infeft the acquirer, Decemb: 16: 1657: Ross contra Laird of May. This manner of Adjudication is extended no further then to the thing disponed, and hath no Reversion: It requires no Charge to enter heir, or renunciation; but the ad∣judger must instruct his Authors right, June 24. 1669. Mr. Dowgal contra Glen∣urchie.

These Adjudications do not come in pari passu, with other Adjudications within the year, nor any other with them, July 16. 1675. Campbel of Riddoch contra Stuart of Ardvorlick. Decemb. 2. 1676. Lady Frazer contra Creditors of the Lord Frazer and Lady Marr.

53. By the late Act of Pavliament, anent adjudications, there are introduced two new forms of Adjudications; the one special of Lands effeirand to the sum, and a fifth part more, in case the debitor produce his Rights, and put the adjudger in his Possession, of his particular Lands adjudged: But if he do not, adjudications are to proceed as appryzings did generally of all the debi∣tors Lands, or real rights, periculo petentis, redeemable within ten years: These Adjudications are come in place of appryzings, especially the general adjudi∣cations, which are declared to be in the same condition in all points as appryz∣ings were by the Act of Par. 1661. cap. 62. Except as to the lengthening of a Reversion from seven to ten years: So that what hath been said of Appryz∣ings, will have the same effect as to general Adjudications; but special Adju∣dications being equitable and favourable, will not meet with such strictness: This Statute hath taken away the greatest Reproach upon our Law, which for every debt indefinitely appryzed every Estate great or smal, which had no excuse, but that the debitor might redeem in seven years: But all debitors being necessitat to appryze within a year, or to have no more then the legal Reversion, paying the whole debts, the power of Redemption came to be of little effect, few being able to pay all their debt in one day: But now if any debitor complain, that his whole Estate is adjudged, and no proportion keep∣ed betwixt the debt and his Estate, it is altogether his own fault, seing he might offer a proportional part, and liberat all the rest of his Estate; which part is Redeemable also in five years: And though a fifth part be added, it is no more then the ordinary penalty, being an 100. Pounds for a 1000, Merks, and 50. Merks for the Sheriff-fee; makes 200. Merks, being the fifth part of a 1000. Merks, and which was sustained in the most favourable cases of Appryzings from the beginning, and the Reversion was for seven years.

Adjudications being executive Decreet, the Lords allow them the greatest dispatch; and to prevent Collusion, whereby some debitors might be post∣poned by debate and probation till the year pass, which would excludethem; Therefore the Lords do not suffer Co-creditors to stop Adjudications, that they might see for their entress, and put the pursuer to abide the course of the Roll, unless they produce an Entress, upon which the Ordinar will hear them immediatly without going to the Roll, Jan. 22. 1681. Earl of Dundonald contra Dunlop and his Creditors. Neither is the Superiour suffered to propone de∣fences, Jan. 13. 1675. Kinloch of Gourdie contra Mr. James Blair and James Strachan. Yea, the Lords sustained the establishment of the debt in the same Lybel with the Adjudication, July 26. 1676. Alexander Boyd contra Boyd of Pinkill. But if the debitor himself appear, the Cause goes to the Roll; and if there be prior adjudgers, defences proponed against the debt, or adjudica∣tion, which are not like to be verified within a year of the first adjudication; the Lords adjudge and reserve these defences contra executionem, by Suspensi∣on; In which terms will be granted, because of the reservation; but there is this advantage, that how long soever the Suspension be of expeding, the first decreet being within the year, brings the adjudger in pari passu.

TITLE XXV. Confiscation, Where, of single Escheat, Liferent-Escheat, Shipwrack, Waith-goods, Treasure, Forefaulture, Bastardy, and Last-heir.

• 1. The Tenor of Letters of Horning.
• 2. The executions of Horning must bear the party Charged personal∣ly, or at his dwelling-house de∣signed.
• 3. The Execution at the dwelling∣house, must bear six knocks at the most patent Gate, because the Messenger could get no En∣try.
• 4. The knocks must be audible, that these within may hear.
• 5: If the Messenger get entry, the deli∣very of a Copy to any of the Fami∣ly is sufficient without knocks, and must be so exprest.
• 6 The days requisite for the Charge be∣yond the Water of Dee.
• 7. The denunciation must be against the party, and at the Mercat Cross of the Jurisdiction where he dwells.
• ...

• 8. The denunciations must bear three Oyesses, or the equivalent.
• 9. The execution must bear three blasts of the Horn.
• 10. The execution must be stamped.
• 11. The Horning must be Registrate, and how.
• 12. Denunciation after satisfaction hath no effect.
• 13. The effect of general Letters of Horn∣ing.
• 14. The order and effect of Relaxation from the Horn.
• 15. The single Escheat and extent there∣of
• 16. How far the denunceds debts, or deeds affect his Escheat-goods.
• 17. Gists of Escheat, and preference thereof.
• 18. Gifts of Escheat not expressing the particular Horning whereon they proceed.
• 19. Gifts of escheat, though bearing goods to be acquired, extend but to these acquired within a year after the gift.
• 20. Escheats within Regality.
• 21. In what cases gifts ofescheat are held simulat.
• 22. Who must be called in the general declarator.
• 23. The Titles and Tenors of general declarators.
• 24. Exceptions against general decla∣rators.
• 25. Special declarators of escheat.
• 26. Liferent-escheat.
• 27. Confiscation of Treasures, Waith, or Shipwrack-goods.
• 28. Forefaulture.
• 29. Several kinds of Treason by Sta∣tute.
• 30. Forefaulture Confiscats without the burden of the debts or infeft∣ments not confirmed by the King.
• 31. How far fews are effectual against Forefaulture.
• 32. How far Tacks of forefault Lands are effectual.
• 33. Forefaulture by arescinded Act, was burdened with the debts and deeds of the Rebel.
• 34. Forefaulture, when, and how it may proceed in absence.
• 35. How far the person of the Rebel gives Right to the Fisk.
• 36 The effect offorefaulture of appearand heirs.
• 37. In what cases forefaulture dishabi∣litats.
• 38 How far the forefaulture of appearand heirs may be extended.
• 39 Explanation of the Act of Parlia∣ment 1594. cap. 202. import∣ing burdening of forfaultures with the debts and deeds of the Rebel.
• 40 Forefaulture is reducible upon any nullity, but only by way of grace.
• 41 How far forefaulture takes effect with∣out declarator.
• 42 What Children are lawful and what bastards.
• 43 Declarator of Bastardy.
• ...

• 44 The effects of Bastardy, as to Suc∣cession.
• 45 Legitimation and effects thereof.
• 46 How the debts and deeds of the Ba∣stard affect his Estate.
• 47 Ultimus haeres, and the difference thereof from Bastardy.

THE Conveyance and Transmission of all kinds of Rights from private parties to the Fisk, are here comprehended under one common Term and Title of Confisca∣tion: It is not proper in this place to treat of the Fisk, or priviledges thereof, or upon the several Causes, upon which Confiscation followeth; these being pub∣lick Rights; but we shall only consider the several kinds of Rights, or things that befal to the Fisk from private parties, and how they return to private parties again, by Gifts and Processes thereupon; and this is either in reference to Move∣ables, Liferents, or the Property and Stock of Heretable Rights and others

Moveables fall to the Fisk, either wholly and intire, and that is chiefly by Denunciation and Rebellion, or by some special Statute, the penalty whereof is Confiscation of Moveables; such are breach of Arrestment, or Deforcement wherein, though the private party injured have an interest; yet in effect the whole is Confiscat, and a part belongs to that party, by vertue of the Statute thereanent, whereby they are constitute Donatars: Or otherways some particular Moveables befalleth to the Fisk; either by Custome, as Waith∣goods, Ship-wrack, &c. or by Statute. Liferents befal to the Fisk by the Denunciation of the Owner, and remaining unrelaxed year and day, or by such Statutes, whose penalty is the loss of the Liferent.

The Stock or Property of Heretable Rights, fall to the Fisk by forefaulture, or becoming caduciary; the Confiscation of the whole Moveables is called the single-escheat; and of the Liferent, is called the Liferent-escheat. We shall only speak of the Single-escheat of Moveables by Denunciation; having spo∣ken of breach of Arrestment and Deforcement, Title Reparation. Second∣ly, Of Liferent-escheat. Thirdly, Of Escheat of particular Goods, as Shipwrack, &c. Fourthly, of Forefaulture. And lastly, of things Ca∣duciary, especially by Bastardy, and last Heir, and of Gifts and Processes thereupon.

Escheat, though it be a common Term, signifying any Confiscation, yet it is restricted to Moveables and Liferents, and most properly to Moveables, so that when it is simply exprest, it is ordinarly taken for single-escheat, or Escheat of Moveables; but before we descend thereto, it is fit to con∣sider of the ordinary Cause thereof, and of Liferent-escheat, viz: Horn∣ing.

Horning proceedeth thus, by Letters Executorial, giving warrand to Messengers at Arms, to charge any partie in the Kings name, to obey what is contained in the Letters, under the pain of Rebellion; And if he obey not within the dayes of the charge, giving power to Denounce him Rebel by publick Proclamation, at the Mercat Crosse of the Head Bargh of the Shire, Stewartry, Bailliarie of Royalty or Regalitie within the which the Denunced dwells; and that by publickreading of the Letters of Horning, and giving three blasts of a Horn, for the clear manifestation and notice thereof, from whence it is called Horning: And because of the Certification, the partie Denunced is called Rebel, by a term too rough, such Persons not being in Hostilitie against the King, nor being publick enemies, but only De∣nunced upon Causes Civill, which they lye under frequently, not through contempt, but inability to satisfie. The English do more properly call this Execu∣tion Out-lawerie, whereby the partie becumes Out-law, and hath not a per∣son to stand in Judgement Active or Passive: And if such should be called by us, the Denunced, it were smoother, and more suitable then the odious term of Rebell. Seeing Horning is the ground both of single Escheat, and Liferent Escheat: It would be fit to go through the several Requisites there∣of in order, and the nullities arrysing thereupon.

First, the Letters of Horning must be Signet: And therefore though the Bill was past, and the matter small, and the parties Indigent, a Horning not Signet was found null 1. of June 1610. John Megill contra.

Secondly, the Executions, or Indorsations thereof must bear, that the partie was charged personally, or at his dwelling house, designing the house. And therefore a Horning was found null by Exception, for not designing thereof, though the partie was designed to be Burgess of such a Burgh, which might have presumed his dwelling place to be there, July 14. 1626 Adam contra Baillies of Air, yet a Horning was sustained, though not designing the dwelling house nominatim; but by discription of it. Thus, the Messen∣gers Execution did bear, that he charged the partie designed by such Lands, at his Dwelling House, it being proven, that he then dwelt there, November 9. 1632. Montgomerie contra Fergushall.

3. If the Charge be in absence, at the parties Dwelling House, the Execu∣tion must bear the Messenger to have craved entrie to give the Charge to the Partie, or his Wife and Familie and not getting Entrie, six Knocks to have been given by the Messenger, at the most patent Gate, or Door thereof, yet this being wanting in the Extract, the same was sustained, It being pro∣ven by the Keeper of the Register, and his Servant, That when the Horning was offered to the Register, these words were in it, and by the Messenger, and Witnesses insert in the Execution, that the Knocks were used, the intent of the Cause being Alimentarie and Favourable, March 28. 1637. Scot contra Scot. But this is not to be drawn in Example: For the Register of Horning is that upon which the People ought to rest, and nothing ommitted to be exprest in the Register should be supplied by the principal Hornings, Messenger, or Witnesses: For Executions of Hornings cannot be proven by Witnesses, and consequently no matterial point thereof,

4. Knocking at the Door audiblie is necessary, without which, Execu∣tions might be Clandestine, and never come to the parties know∣ledge. And therefore the Messenger must express this as truely done, where∣in he runs the hazard of being a Forger, if the Executions be improven, that either the Knocks were not given or were given fraudulently, that these within might not hear, as if the Gate had been but Struck with ones hand, a piece of Earth, or Stick, which could not reach theirEars that were within, for the affixing of a Coppie may be more easily evaded: Seeing the partie may send of purpose to take the Coppie off, being none of the Witnesses in in the Execution, albeit sometimes, even the Witnesses carrie away the Cop∣pie, and the Messenger may imagine that his Executions were true, when he said he left a Coppie affixed, because it was affixed when he began to move from the Gate; Yet if he saw it carried away, his Executions would be found false, and he would not escape punishment. A Horning was also sustained, though it bore neither Personally, nor at the parties Dwelling House, seeing it bore a Coppie to have been given, which necessarily imported to have been personally apprehended, July 22. 1626. Stewart contra Hannai.

5. Thirdly, the Executions must bear, that the Messenger gave a Coppie of the Letters to the partie charged personally, or in his absence, affixed it upon the most patent Door of his Dwelling House: And therefore a Horning was found null, because it bore not delivery of a Coppie, but only of a ticket bearing the tenor of the Letters, Hope Horning Monteith contra Kirkland. But if the Messenger get enterance into the house of the partie Charged, and deliver a Coppie to the parties Wife, or some of his Family, There the Exe∣cution will be sustained though it bear not Knocks at the Door, or affixing of Coppies thereupon, these being only required where entry is not gotten, December 11. 1679. James Somervail contra William Staines.

6. The Charge must also be upon 15. days being beyond the water of Die, and six upon this side. Par. 1600: cap. 25. Yea, though fewer dayes be in the Claus of Registration it was not found valid, February 14. 1625. Stewart con∣tra Bruce. The contrary was found, December 16. 1664. Philorth contra Forbes of Asloun, and the Lord Frazer, Jannuary 20. 1675. Laird of Meldrum contra Tolwhoun. And it was found, that the Act 1600. Was not to be Ex∣tended to Hornings upon Clauses of Registration of consent: And that the meaning of the Statute was both interpret by the Narrative, and Subsequent Consuetude. Nam Consuetudo optima legnm interpres. And that the Decisi∣on Anno 1625. hath been upon this Consideration, that the Charger lived in Fyfe, and the Debitor in Orknay, who could not possible, either come to the Creditor and pay, or to the Lords and Suspend on six days, and so was not con∣tumacious, but free by the Act of Parliament 1592. cap. 138. Annulling im∣possible Conditions in Contracts, whereby their is sufficient ground of recon∣ciliation of these Decisions, for it is only Contumacy that makes the Escheat fall which gave the rise to the Act of Parliament, to allow 15 days for all beyond the water of Die. And though parties consent to lesse time, yet Contumacie can∣not be inferred, but where the partie could by exact diligence come in time, either to satisfie the partie, or to Suspend, which some beyond Die might do, if the Charger were near, that they might offer him just satisfaction, and if he refused, they might have time to reach Edinburgh, and Suspend: But in other cases that cannot be, as was evident in the Case, in Anno 1625. And therefore, consent, in that Case, can no more inferr Contumacie, then the ex∣press

Consent of parties, that Charges and Denunciations at the Mercat Cross of Edinburgh, shall be sufficient, which is declared null, Par. 1532. cap. 138.

7. Fourthlie, The Executions must bear, that the partie was Denunced, conform to the Charge, for not Obedience thereof: And that either at the Mercat Cross of the Head Burgh of the Shire where the partie charged dwells, or at the Head Burgh of the Stewartrie, or Regalitie, or Balliary of Royalty, if he dwel within these, Par. 1597. cap. 264. Yea, though the write bear, that Letters of Horning execute at Edinburgh, should be sufficient against parties out of the Shire, the same is declared null by the said Act. When there was no Head Burgh of the Regalitie known, the Ex∣ecution at the Head Burgh of the Shire was sustained, Spots. Horning, Stirling contra Auchinleck, And the Head Burgh of the Shire, where the De∣nunceds dwelling lyes Locally, is sustained by the Act of Par. Though his dwelling be upon Lands by annexation, in another Jurisdiction, unless that be commonly known, and in use: Therefore, Horning was not found null, not being Execute at the Head Burgh of Renfrew, the dwelling being upon Lands annexed to the Principalitie, January 11. 1677. Scot conra Dalmahoy. Neither, because the Denunced dwelt in Temple Lands within the Regalitie of Torphichen, unless there were a known Head Burgh and Re∣gister there, January 12. 1672. Mr. James Scot contra Boyd of Temple.

8. Fifthly, The Execution should bear, that the Messenger, at the De∣nunciation did make three Oyesses, before he read the Letters of Horning, that the People might thereby take notice of the Intimation, which therefore ought to be with audible voice; Which, though it be not by any particular Statute, yet is requisite by antient Custom, and should be exprest in the Exe∣cution of all Letters, which require to be published at the Mercat Crosses: The intent thereof being, that the Publication thereof may come to the Ears of the Countrey, and be carried by common Fame, that all parties concerned may look to their Interest: And therefore, such Publications at Mercat Crosses, and at the Peir of Lieth, have by Law and Custom, as expedients to make them commonly known. 3. Oysses before reading of the Letters, and affixing the Coppie of the Letters upon these Publick Places: And Horning hath this supper-added, that there must be three blasts of the Horn after reading of the Letters; But because Executions do not always bear 3. Oysses, But generally lawfull Publication. The Lords did declare upon the February 15. 1681. That they would sustain no Executions of Messengers, done in time coming, not bearing three Oysses & publick readingof theLetters, in a Reduction at the instance of Gordon of Park contra Arthur Forbes, upon the want of 3. Oysses, which came not to be decyded, because the Executions were Improven: And an Inhibition bearing only, that the Messenger did lawfully inhibite, and not bearing three Oysses, or the reading of the Letters. the Lords found the same null, and would not Supplient by Witnesses, that these were truely done, July 11. 1676. William Stevinson contra James Jn∣nes: But where the Executions did bear that the Messengers did lawfully publish, and read Letters of Inhibition, which by inspection of the Registers was found to be afrequent Style, and not the former Style, which was meerly generall, The Lords sustained that the three Oysses were truly given, Junne 21. 1681. Lundie contra Trotter.

9. The Execution must also bear, that the Messenger did give three blasts with his Horn: And yet a Horning was not found null, because it bore not ex∣presly the partie to have been Denunced, or three blasts to be given, but only generally, that the Rebell was Denunced by open Proclamation, and put to the Horn, January 19. 1611. Sr. Robert Hepburn contra Laird of Nidderie, and an Execution was sustained, though it bore not three blasts, it being proven by the Witnesses insert that these blasts were truely given, and the Execution bore orderly Denunced, March 4. 1624. Drysdale contra Sornbeg, and Lamingloun.

10. Sixthly, The Execution must bear, that the Messenger, for more Ve∣rification, hath affixed his Signet, or Stamp, and the Stamp must appear, if the Executions be recent, else it will be null, March, 6. 1624. Comissar of 〈◊〉〈◊〉 contra So the Execution of a Horning was found null, because it mentioned not the Stamping thereof, Hope Horning Home contra Pringle of Whitebank; Yet the Executions weresustained, though they bore not these Words, seing they were all written with the Messengers own hand, and were Subscribed and Stamped, as Hadingtoun observeth, but expresseth not the partie, February 19. 1611.

11. Seventhly, Horning must not only be Execute at the Head Burgh of the Shire where the partie dwells, but must be Registrat in the Sheriff∣Clerks Register of that Shire within 15. days after Denunciation thereupon, Otherwayes the same is null, Par. 1579. cap. 75. Where the Clerk is or∣dained to give an Extract, and Registrat it within 24. hours after recept of the Letters: And if he refuse it, the Charger may Registrat it in the next Sheriff Books, or in the Clerk of Register his Books, which upon Instruments taken of his refusall, is declared sufficient, Par. 1579. cap. 75. Wherein the Registration is ordained to be Judicially, or before a Notar, and four fa∣mous Witnesses, besides the ordainry Clerk: But this part of the Act is re∣scinded, and it is declared, that the Registration in the Sheriffs, Baillies, or Stewarts Books by the Clerk thereof, or by the Clerk Register, and his De∣puts in the Books of Council and Session shall be sufficient in it self, Par. 1600. cap. 13. And for this effect, there is a general Register of Hornings, Re∣laxations, Inhibition & Interdictions keeped at Edinburgh, and a particular Clerk Deput having the Charge thereof: But if the partie live within Stewartrie, or Bailliery of Royaltie or Regalitie, the horning must be Registrate there, in the same manner as other Hornings must be Registrate in the Sheriff Books, else it is declared null, Par. 1597. cap. 265. But Denunciation against parties who have found securetie to underly the Law, and compears not at the day appointed, is declored sufficient, being at the Crosse of Edinburgh, within six days, though not at the Head Burgh of the Shire, Par. 1592. cap. 126. And likewise, Denunciations against parties entring in the place of the Criminal Court, with more persons then there Domestick Servants, and Procurators are declared valid, though Execute only at the Mercat Crosse of the Burgh where the Justice Court sits for the time, and Registrat in the Books of Ad∣jurnall, Par. 1584. cap. 140. Executions of Horning was also found null, because Execute upon the Sabbath day, Spots Charge, Ribbald Frenchman con∣tra Sr Lewes Lauder, but were not found null, Because Registrat after the Rebells death, being Denunced before December 20. 1626. Laird of Lie con∣tra Executors of Blair.

12. Though the Horning be orderly used, yet if the Ground, or 〈◊〉〈◊〉 whereupon it proceeded be not due, or taken away before the Denunciation, the Horning is thereby null, and reduceable, though no Suspension of the Horning was raised before. but in this the Officers of State must be called to prevent Collusion, Spots Escheat, James Dowglas contra Creditors of Ward∣law. So a Horning upon Lawborrows was found null by exception, because Caution in obedience was found before Denunciation, November 29. 1626. Smeitoun contra Spear; Yea Horning was reduced, because before Denunci∣ation, the Charger had accepted a Band in Satisfaction of the ground of the Horning, which was found probable by the oath of the Charger against the Donatar, Hope Horning Mushet contra Forrester. The like where the Charge was Suspended before the Denunciation, though the reason of Suspension militated only against a part of the Charge; Hope Horning Buckie contra Earl of Erroll: But the Rebells Oath, or holograph discharges before De∣nunciation, were not respected as presumed Collusive, February 10. 1663. Montgomery contra Montgomery and Lauder. In this case it was found, that Reduction of the Decreet upon Informality, not being upon material Justice, did not annul the Horning; Neither was Horning taken away by compen∣sation, by the like Sum due to the partie Denunced, equall to that in the Horning, not having been actually applyed, by Process or Contract before the Denunciation; Nor was any warrand required for using the Execution, though for a partie living in England, and done against a Daughter and her Husband: But the having the principal Band, was found sufficient warrand for Registration of it, and Execution thereupon; And the Denunciation a∣gainst the Husband was not taken off, by dissolution of the Marriage before Declarator, December 23. 1673. Thomas Dalmachoy contra Lord Al∣mond.

13. Horning though orderily used, proceeding only upon generall Let∣ters, by Supplication against all and Sundry, unlesse it be against a Burgh, Colledge or Communitie, proceeding not upon a Citation, and for a spe∣cial and certain Dutie, the Denunciation thereupon hath no effect, as to Escheat, or Liferent, though Caption usually follow thereupon, Par. 1592: cap. 140. Which Act doth declare such Executions null: And therefore, such a Horning was not found sufficient to debarr a partie, as not having per∣sonam standi in judicio January 24. 1674. Blair of Glascun contra Blair of Baleid, much lesse can these general Letters make Escheat to fall, or Annu∣alrent be due, yet Caption proceedeth upon it, and useth not to be quarrelled.

14. Horning is taken off, and ceaseth by Relaxation, which requireth the same Solemnities of Publication, and Registration as Hornings do; As is clear by the forcited Acts of Parliament thereanent: But it doth only ope∣rat to free the Rebel relaxed, as to his goods and others, acquired after Re∣laxation, February 14. 1635. Lochart contra Mosman, December 23. 1673. Thomas Dalmachoy contra Lord Almond.

It is also ordained, that all Copies of Summonds, and Letters delivered by the Executer thereof, shall be subscribed by him Par. 1592. cap. 139. I have not observed any Exception founded upon this, Act, which though it expresseth not a nullitie, yet ought to be a rule to Messengers, especially in Hornings, and Inhibitions, which may prefer any other more orderly diligence.

15. The effect of Horning dulie used, and Registrat in manner foresaid, is that thereby the whole moveable Goods, and Debts of the parties Denunced are Escheat, and Confiscat, and all that he shal acquire thereafter, till he be re∣laxed; Whereupon the Thesaurer used to cause raise Letters of Intromission, for uptaking of the Escheat Goods, direct to Sheriffs and Messengers: And in case they be deforced, or the Sheriff not able, or willing to Execute the same, Lettes will be direct to Noblemen, and Barrons within the Shire, to Convocat the Leidges in Arms, and to make effectuall the former Letters Immediately, Par. 1579. cap. 75. But this is long in Desuetude: This is also an effect of Horning, that the partie Denunced, hath not personam standi in Judicio; either as Pursuer or as Defender, yet the Lords would not hold him as Confest, if he appeared, and were hindred by the other partie, July 12. 1676. Sr. William Purves contra Sharp of Gospetrie. The same will hold in any thing requiring the personal presence of the Denunced, as byding by a write, quarrelled of Falshood.

For clearing the matter of Escheats, it will be necessary to show, First, what falls under single Escheat. 2. How farr the same is burdened, or affected with the Denunceds Debts or deeds, for the first single Escheat extends to no Heritable Right, whether of Land Annualrent, or Heritable Band, but itcarries the by∣gones of all these, preceeding the Denunciation: And there after till year and day, July 1. 1626. Halyburton contra Stewart, Hope Horning, Sr. Hendrie Wardlaw contra William Dick. What Rights are Heritable, and what moveable, hathbeen shown before Title Real Rights. So thatall which is there Moveable, except Mov∣eable Bands bearing annualrents, falls in the single Escheat, and somethings are Moveable, in Relation to Escheats, which are not Moveable in Relation to the Succession of Airs or Executors: As Tacks not being Lyfrent Tacks, Par. 1617. chap. 15. It carries also the Office of a Clerk-ship, Hope Horning, Mr. Hendrie Kinross contra James Drummond: And likewise the Jus mariti of a Husband, and therewith per consequentiam, the Lyfrent right, or other right of the Wife, belonging to the Husband, Jure mariti. Spots Escheat Violet Dawling contra William Cochran. It carrieth also all casualities befalling to a Re∣bel Denunced before the Denunciation: As the Lifrent Escheat of his Vas∣sals, Felrury 13. 1611. Symson contra the Laird of Moncur But if the casu∣ality had fallen to the Superior, after the Superiours own Liferent had fallen by his Rebellion, year and day, it would be carried with the Superiors Life∣rent Escheat, February 26. 1623. Clunie contra Bishop of Dunkell. And if the Liferent Escheat, or any other casualitie be gifted, the gift makes it Moveable, and so to fall under the Donatars single Escheat, March 10. 1631 Francis Setwart contra the Ladie Samuelstoun: And the single Escheat of Husband carrieth their Jus mariti, and in consequence, the Liferent of their Wives, for though the Wifs right be a Liferent, which wouldnot fall under single Escheat, Yet the Husbands Right Jure mariti, is no Liferent, for if the Wife die before him, his Right ceaseth in his own Life. Tacks also fall under single Escheat, unlesse they be Life-rent Tacks: and Assignations to Life-rent Tacks, and other Life-rents have been found to fall under single Escheat, because the direct Right is incommunicahle; For no Life-renter can put another Life-ren∣ter in their place, but canonly assign the profits befalling to the Life-renter by the Life-rent Right: So that it is no Life-rent in the Assigney, but is as the jus mariti in a Husband, which is as a Legal assignation: Likewise, Clauses of Relief in Heritable Bands fall under single Escheat, because there is no He∣ritable Clause adjected to the Clause of Relief, but Assignations to Heritable

Bands makes them not fall to under single Escheat, because the Creditors right is directly Transmitted and Stated in the Assigneys Person. The single Escheat of Ministers carries the meliorations of their Manses, but the Escheat of an Ex∣ecutor carries no more then what is his own Interest, and not the Share of the Wifes, Bairns, Creditors, Legators, or nearest of Kin, which is Escheat by their own Rebellion only, even though the Testament were Execute by De∣creets, at the Executors instance against the Debitors, December 21. 1671. Mr. Arthur Gordon contra Laird of Drum.

16. As to the other Question, how farr the Denunceds Debts or Deeds affect his Moveables fallen in Escheat, it is clear, that the Debt contained in the Horning affects the Escheat, whether in the hands of the Thesaurer, or Donatare, Par. 1551. cap. 7. Par. 1579. cap. 75. And likewise all Intromet∣ters with Escheat, by Gift, Assignation, or otherways, upon a single Sum monds of Six days, Par. 1592. cap. 143.

Secondly, It is clear, that no Assignation, Disposition, or other Deed done by the Denunced, after Denunciation, not being for fulfilling an An∣terior Obleigment before Denunciation, for a Cause onerous to a lawful Cre∣ditor, can affect the Moveable Goods or Debts of the Denunced: But when the Denunciation is upon a Criminal Cause, the Escheat takes not only effect from the Denunciation, but from the committing of the Fact: Therefore a Donatar of Escheat recovered a Sum due to the Rebel, though Assigned before the Fact, and payed before process, Seing intimation was not before the Criminal fact, Hope, Chalmers and Gordoun contra Gordoun.

Thirdly, These Debts or Deeds of the Denunced, do not simplie affect the Escheat Goods, unlesse they be Consumat, or lawful Diligence done before the up-taking of the Escheat Goods, by the Thesaurer or Donatar; Yea, be∣fore general Declarator, for that being the Intimation of the Donatars Gift, it renders it to him to be a compleat valid Right, after which no Creditor not having a real Right, or Legal diligence before, can have any Access, unless the Donatar, by back-band to the Thesaurer, be otherwise obleiged: And therefore a Donatar having obtained general Declarator, was preferred to a Lawful Creditor arresting after Declarator, February 22. 1628. Anderson con∣tra Gordon.

But the Question remains, how far Lawful Creditors, whose Debt is before the Denunciation, or Criminal Fact, using diligence thereafter, but before Declarator, or obtaining Assignations intimat, or Dispositions cled with Possession before Declarator, may thereby effect the Escheat Goods? For an∣swer thereunto, though in rigore Juris, the goods and debts of the Denunced fall to the Fisk, as they are the time of the Denunciation, or Criminal Fact: And the Declarator, according to the nature of all Declarators, doth not constitute the Fisks Right, but declares the same to have been from the De∣nunciation, or Criminal Fact (albeit as an Assignation, it doth constitute the Donatars Right; Therefore the real Right passing to the Fisk without posses∣sion, or at least the priviledge of the Fisk might in the full Extent thereof, ex∣clude all posterior diligences or deeds: Yet such hath been the Royal benig∣nitie of our Kings, and there Favour to Lawful Creditors, that in this they accompted id solum nostrum quod debitis deductis est nostrum. For which the Thesaurer hath been accustomed to prefer Creditors, giving Gifts of Escheat

to them before others, and in taking Back-bands from them, in favors of o∣ther Creditors; Yea by long custom, Creditors, whose debts were anterior to the Denunciation, or Criminal Fact, doing diligence before Declarator, are preferable to the Donatar, Spots escheat, James Nisbit contra James Fullarton, February 24. 1637. Pilmure contra Geggie. In this case the escheat belonged to a Lord of Regality, and the Arrestment was laid on before the gift of escheat: But where the Donatars Gift was in payment of his own debt, he was preferred to an Arrester, arresting the Rebels goods after the gift, but before Declarator, February 27. 1623. Thomson contra Laird of Murckil, but voluntary deeds of the Rebel after Rebellion, as Assignations not in∣timat before Declarator, for satisfaction of Debt due before Denunciation, or Criminal Fact, are not preferred to the Donatar, Hope assig. Sr. James Stewart contra Alexander Wardlaw, John Clerk contra William Naper, and James Cramfoord contra John Mcaul. And though an Assignation not being inti∣mat before Rebellion was preferred to the Donatar, yet it was in conse∣quence of a Decret of Council decerning, that Assignation to be made, and so not voluntary: So a Donatar was preferred to an assigney, whose assig∣nation bore a cause Onerous, and was before Declarator, but after Rebellion, December 6. 1631. and February 26. 1633. Conheth contra Earlston. Decem. 18. 1629. Laird of Caprington contra Cuninghame, February 2. 1632. Lindsay contra Nisbit. Where the Assignation bore not a cause Onerous, Yet a Lawful Creditor obtaining Disposition from the partie denunced, cled with posses∣sion, was preferred, ibid. Johnston of Corhead contra Johnston. In like manner a disposition made by the Rebel for a Just debt, before the Giftor Declarator was preferred to the Donatar: Here it was not exprest, that the debt was before the Rebellion, February 10. 1635. Mosman contra Lockhart. Where there seems some difference in the Decisions, wherein these points seem clear∣est, 1. Dispositions and delivery of Goods, because moveables are more easily transmissible in favours of Commerce, and so have always a presumptive Title upon Possession: So that if the Goods be bought in a Mercat, there seems no Question, or if bought out of Mercat from a Rebel, getting the price which accresseth to the Fisk, unlesse the Buyer was in mala fide. And though getting the Goods in Satisfaction of a debt, before the Rebellion, be more questionable then a present Exchange of the Goods and Price, the former decisious favour that also. The Lords did lately find, that a Rebel selling part of his Corns, to provide necessaries for Sowing of the ground, the Crop whereof fell to the Fisk, the bargain was valid. 2. Legal Diligence upon Ar∣restment being compleat before Declarator, are valid, though after Rebellion; Yea the Decisions favour even the inheat diligence, if the Arrestment was before declarator upon a debt before Rebellion. And it was so found, Februa∣ry 19. 1667. Jsobel Glen contra John Hoome. But voluntary Assignations seem not effectnal, if they be not compleat by Intimation before Rebellion, and though they be, if Payment or Satisfaction, either in Money or renew∣ed Bands, innovating the Rebells Band, be not obtained before Rebellion, the Donatar was found preferable, but otherwise the Creditor, by Precept, As∣signation or otherwise, getting payment of his debt, prior to the Rebellion, and obtaining payment, before Declarator was found secure against the Do∣natar, February 11. 1675. William Veatch contra Executers of Ker. But though actual Payment were obtained by Assignation after Declarator, it will not Secure the Creditor December 20. 1676. inter eosdem.

17. The matter of Escheat being thus cleared, we come to the gift there∣of, and Declarator thereupon. A gift first Sealed, was preferred to an other, first signed in Exchequer, albeit so near in diligence, as coming that same day to the Seals, December 6. 1662. Stewart contra Nasmith.

Gifts of Escheat are in effect, the Assignations thereof by the Fisk, where∣of the Intimation is the Declarator. So that a Posterior gift, with a Prior general Declarator is preferable to a prior gift, with a posterior Declarator: But where there is yet no Declarator, Preference is by the first Citation, if the same was followed with Lawful Diligence: And therefore a Posterior Gift, whereupon Citation was prior, but three days was preferred to a pri∣or Gift, Jan. 31. 1635. Laird of Renton contra Laird of Lambertoun. If there be no Citation, or Declarator, the Donatars possession is sufficient alone, and will, preferr a posterior Gift though granted to the Rebel himself, being be∣fore any Diligence upon the Prior Gift. And if two gifts be produced as ente∣resses, without any Diligence on either, the first gift is preferable.

18. Gifts of Escheat, as all other gifts by the King are null, if granted be∣fore the Casuality fall, as an erection of Kirk-lands, in a temporal Lordship was found null, because a commendatar stood then in the right, and did not Resign or Consent: And therefore a posterior Erection to that Commenda∣tar, upon his own Dimission was preferred, February 24. 1666. Sr. Robert Sinclair contra Laird of Waderburn. And so a gift of escheat before De∣nunciation was found null, by exception; Because it mentioned no particular Horning whereupon it proceeded, though done by the Kings own hand at Court: And though Anterior Hornings were produced in the Process, and no other Donatar, nor Officer of State quarrelled the same. November 20. 1628. Weston contra Stewart.

19. Gifts of escheat not bearing expresly goods to be acquired, extend no further then to the goods, the Denunced had the time of the gift, February 27. 1623. Bruce contra Buckie. And though the gift bore expresly, not only the goods the Rebel had, but which he should acquire thereafter, during his Rebellion: Yet the same was only extended to what he had the time of the Gift, and what superveened within year and day, June 27. 1622. John Jn∣glis contra Laird of Caprinton. It was so decyded, July 2. 1669. Barclay con∣tra Barclay. Yea the same was extended to no goods acquired after the gift, seing the Style thereof bore not what he should acquire, February 2. 1627. Lewis Somervail contra Mr. William Stirling.

20. Escheats of Persons living within Regality, belongs to the Lord or Baillie of Regality infeft with that priviledge: And therefore Gifts by the King, reach not these escheats, but gifts by the Lords, or Baillie of the Re∣gality, which was found to comprehend all Moveable goods, and sums belong∣ing to the partie Denunced, as well within the Regality as without the same, June 26. 1680. Young contra Laird of Raploch. But these gifts Differ from the Kings gifts, that they are effectual according to their Tenor, both as to goods before and after the gift, and are valid, though granted generally, or though before the Casuality fall, if a special gift, after the Casuality fell, be not in competition, for the Prior Limitations of the Kings gifts, are only in Fa∣vours of the King, that he be not prejudged by the default of his Officers; But private parties ought sibi invigilare: And albeit the diligence of Credi∣tors

be preferred to the Donatars, chiefly by the Kings benignity: Yet the same was sustained against a Donatar of Escheat, by a Lord of Regality February 24. 1637. Gilmore contra Hagie.

21. The main difficultie anent Gifts, is, when they are Simulat, and to the behove of the Denunced, which is much cleared by that excellent Statute, Par. 1592. cap. 145. Declaring it a sufficient evidence of Simulation, of any Assignation, or Gift of Escheat, if the Rebel himself, his Wife, Bairns, or near Friends, remain in Possession of his Tack, and Goods, to their own uses, and behove; yet it is not declared, how long their possession must be; Seing the Rebel ordinarily, for some time is in possession, till the Do∣natar use diligence: But where the Rebel retained possession till his death, a Gift though declared was found null by exception, July 12. 1628. Morison contra Frendraught, June 26. 1611. Gairdner contra Lord Gray: Yea, it was found Simulat, where the Rebel possessed, 9. years, June 27. 1622. John Inglis contra Laird of Capringtoun, and other Circumstances, concurring 4, or 5. years by the Rebel, was found sufficient, the Donatar having consented to several Tacks, and Wodsets granted by the Rebel: And yet the same Gift was found valid in part, in so far as concerned Heritable Rights, acquired by the Do∣natar from the Rebel, December 23. 1623. Ballantyn contra Murray, four or five years Possession of the Rebel, were found sufficient to infer Simula∣tion, though the Donatar was a Creditor, and the Rebels Lands apprysed, seing the appryser possessed not, but the Rebel, 6, and 9. of January 1666. Sr. Lawrance Oliphant contra Sir James Drummond, So that the time of Possession, sufficient to infer Simulation, remaineth in arbitrio Judicis.

The next ground of the Simulation of gifts of Escheat, and presuming the same to the Rebels behove is, when it is taken in the name of the Children in his Family, which was found Relevant, without mention of the Rebels Possession, June 25. 1622. Lord Borthwicks Bairns contra Dickson. But the presumption was not found sufficient, that the Gift was to the behove of the Rebels Son: Here it was not alleadged, that he was then in his Fathers Familie, March 20. 1623. Keith contra Benholme. The like where the Son was not in his Fathers Family, and was a Creditor, and made Faith, it was to his own behove at passing the Gift, though the partie Denunced, did remain in possession, sometime after Declarator, December 4. 1669. Jaffray contra Jaffray.

The third Presumption of the Simulation of Gifts is, when the same is pro∣cured, and past by the Rebels means which was sustained, though a part was by the Donatars means, and a part by the Rebels, though the Donatar was then a Creditor. June 26. 1622. John Inglis contra Laird of Capringtoun. The like found probable by Members of the Exchequer, as Witnesses, Nov. 28. 1626. Earl of Kinghorn contra Wood. Hope cessio bonorum, Laird of Clunie contra Laird of Blandine, Cant and Porterfield contra Sir James Stewart. The like against an assigney, constitute by the Donatar, Hope Horning, Sir Georg Hamilton contra Robert Ramsay. Simulation, of a Gift of Life-rent to the Rebels behove, was found probable by the Rebels Oath, and the Witnesses insert in the Gift, June 19. 1669. Scot contra Langtoun.

This ground of Simulation is found relevant, not only against the Donatar, but against a singular Succesor, not partaking of the Fraud, whose Assigna∣tion

was after the Creditors diligence, December 10. 1623. Dowglas contra Belshes. And though there was no diligence, the Gift being exped blank in the name, and filled up thereafter, in the Donatars name; It was found Simulat, even as to him, though obtaining it for his true debt December 17. 1670. Nicol Langton contra Robison. Simulation is not otherwise valid, against singular Successors: Yet it will not be relevant to exclude the Do∣natar, and prefer another Donatar, in so far as concerns the first Donatars debt, truly owing to him, though the gift was given at the Rebels request, and past at his own Charges: So that the Exclusiion, by this presumed Simulation, was only Inferred, as to the profit of the Gift, above the Dona∣tars own debt, in quantum Lucratus est. For that was found no Fault in the debitor Rebel, to concurr in desire, and moyen to get a gift to his Creditor, in so far as concerned that Creditors debt, March 11. 1624. William Dowglas contra Viscont of Air. The like where the Rebel concured, in procurring the gift, the Donatar having made Faith the gift was to his own behove, show∣ing his Debt and Back-band, December 12. 1673. Mr. Georg Dickson contra Sr. Alexander Mcculloch. All this must be understood, if the Rebel remain un∣relaxed, for if unrelaxed, a Gift though taken expresly in his name, re∣turneth and accresceth to the Fisk, and next donatar, July 6 1627. Earl of Annandale contra Laird of Cockpool: Yea, though he was after relaxed before any other gift November 28. 1626. Earl of Kinghorn contra Wood. June 2. 1610. Lenuox contra Turnbul. But if the Denunced were relaxed, the time of the Gift, as it would be sufficient in his own Person expresly, so it is valid in another person, though to his behove, yet it will exclude none of the Cre∣ditors.

These Nullities are not only competent to Posterior Donatars, but also the Rebels Creditors using diligence.

To come now to the Declarators of escheat, there are two, the First, ge∣neral, the next special.

22. In the Action of General Declarator, the Rebel or his Bairns, or 〈◊〉〈◊〉 of Kin (if he be dead) must be called, Hope, cessio bonorum, Frazer of Tillebodie contra Mopherson, but the Declarator hath no effect against moveable Airship, unless the Rebels Air were called: As to the other moveables though there uses seldom to be Executors, confirmed to defunct Rebels, and therefore the Wife, and nearest of Kin are ordinarily called; Yet where the Wife was only called, she being Executrix confirmed, it was sustained, Nicol, de Haereditariis actionibus. contra Relict of James Forrest. And though Summonds of general declarator bear all parties having Interest, who must be cited generally, at the Mercat Cross of the Head Burgh where the Rebels residence is, that is but Stilus Curiae, and the want of it hinders nothing, June 27. 1666. Massoun contra Black.

23. The Title in the general Declarator is the Gift, and the Horning where∣upon it proceeds, the extract whereof does as sufficiently prove, as the principal, Par. 1579. cap. 75.

The tenor of the general Declarator is, that the Rebel was duely, and orderly Denunced by the Horning Lybelled, and that thereby the whole moveable Goods and Gear, &c. Became escheat, and belongs to the pur∣suer,

by Vertue of his Gift: All which is instantly verified by the Titles: And therefore if no relevant exception be proponed, Decreet is instantly given.

24. No exception will be here competent against the Horning, not being instantly verified, for all others will be reserved to Reduction: So was it found, it being alleadged, that the Rebel dwelt in another Shire then where he was Denunced, June 12. 1611. Mr. of Ocheltrie contra Laird of Symonton. Yet if the Reduction be Depending, it may be sustained as prejudicial, and be first discust, December 12. 1622. Dalmahoy contra Scot. Neither will any Exception be sustained against the ground of the Horning, as not due, or satisfied, as that it proceeded upon a null Band, Subscribed only by one Notar, January 12. 1610. Durham contra Clelland. Or that payment was made before Denunciation, November 30. 1630. Dowglas contra Ward∣law, Hope Horning escheat, Lord Dowglas contra Lord Carmichael. The rea∣son is not only, because the alleagence is not instantly Verified, but specially because the Kings Officers are not called, that they may defend the Kings in∣terest, and obviat Collusions, upon Forged discharges, or otherwise; For oft-times the Donatar hath but a smal Interest, in respect of his Back-band, and so may readily collude: And therefore, though the defence be instant∣ly verified, it is not received by exception, though it might justly be with∣out Multiplication of Processes, Intimation being made to the Thesaurer, and Advocat, that they might appear for the Kings Interest, but if it be a visible nullitie in the Horning, or an exception wherein there can be no appearance of Collusion: It is sometimes admitted as this exception, that the Horning was Suspended before Denunciation, and was false, was sustained, Hope Horning Sheriff of Murray contra Exceptions of any partie compearing for their Interest, and alleadging Assignation, or Disposition of the goods, or diligence done, use not to be received in the general Declaratar, but reserved to the Special, because the general is but an Intimation, and so proceeds Summarily.

25. The Action of special Declarator, though it hath the name of Decla∣rator, yet hath little in it Declaratory, but it is Petitory of the goods specially Lybelled in it. There is no necessity to call the Rebel, or any representing him, but the haver or intrometter with the escheat goods. The Title in this Action, is the Decreet of general Declarator, and there is no necessity to pro∣duce the gift or Horning, Feb. 10. 1627. Creditors of John Stewart, of Coldin∣ghams, escheat contra a debetor to the Rebel, November 20. 1629. Lundie contra Lundie where another Donatar was admitted for his Interest, in the special Declarator though he had no general Declaratar: Nor is any exception com∣petent against the same, or ground thereof, but only by Reduction.

Yet in the competition of others, Donatars or Creditors having used dili∣gence, or having gotten Assignations Intimat, or Dispositions cled with pos∣session, before general Declarator upon debts Anterior to the Denunciation, or Criminal Fact, or otherways upon the Simulation of the gift, are here compe∣tent, as the Simulation is competent also against the general Declarator, and all exceptions generally or particularlie reserved in the general Declarator, are competent in the Special: All these exceptions being held forth before in the same Title, there is no necessity here, to repeat them. In aspecial De∣clarator of escheat, Payment before Denunciation was sustained, to be proven by the Creditors Oath, upon a Reduction of the Horning, and general De∣clarator

repeated by way of Defence, February 10. 1662. William Montgo∣merie contra Theodor Montgomerie and Mr. William Lander. In this cause a Creditor was not found to have Interest, to found upon the Donatars Back∣band given to the Thesaurer, without obtaining a second Gift.

Special Declarators may be persued any other way, as upon Arreistment or particular Lybel, for restitution and delivery of the escheat goods. It is also Consistaut in the same Lybel, with the general Declarator: But before the pursuer insist in the other member for the special Declarator, he must pursue that member for the general Declarator.

26. Liferent-escheat, though it be a penaltie of Contumacy and Rebellion, and so is properly a Confiscation: Yet seing it doth not befall only to the Fisk but is a common Casuality of Superiority, and hath been handled in the Title, Superiority. We shall not here repeat, but only touch some Differences, be∣tween Liferent-escheat, and Single-escheat.

First, Single-escheat is only a Legal Penaltie, and therefore belongs alone to the King, and his Ministers of Justice, who are comptable to him there∣fore as Sheriffs, &c. Or to there own behove by their infeftments, as Lords and Baillies of Regalitie: But Liferent-escheat is not only Penal, but is a Legal Consequence of the Condition of the Rebel, whereby he being out-lawed, and having no person in Judgement, is excluded from the Possession of all his Rights, and is esteemed as civiliter mortuus, whereby his Fies become open, and are in the hands of his Superior, whether the King, or any other Superior, by his continuing unrelaxed year and day: And therefore the diligences done against, or the deeds done by the Rebel, for satisfying of his lawful debts contracted before Rebellion, do not effect his Liferent-escheat, as they do his Single-escheat, though they be done before year and day ex∣pire, being after the Rebellion: And so Arrestments, or Assignations, even though before Rebellion, have no effect after year and day is run, because these being but Personal, and Liferent-escheat a reall Right flowing from the Superiority, whereby the Vassal is denuded of the Liferent: Therefore the effect of these Personal rights ceaseth; But all reall rights flowing from the Vassal before the Rebellion, as Fews, Annualrents, Tacks, Appryzings and Adjudications whereupon there was a Charge, are effectual, and not excluded by Liferent-escheat, though these are excluded by Ward, which is a Casuality following the nature of Fewdal Rights; Whereas Liferent-escheat ariseth not from the Nature of Fies, but is introduced by Law or Custom, and therefore the Fie falls in the hands of the Superior as it was in the hands of the Vassal, with all the Real burdens he had fixed upon it: Neither does Posterior voluntary Infeftments, though for debts prior to the Rebellion, and granted before Declarator, exclude the Liferent-escheat, Jannuary 18. 1611. Samuel Ord contra the Laird of Craigkeith. The like, where the In∣feftment was granted after Rebellion, but within year and day, January 23. 1627. James Wallace contra Thomas Porteous. Where there is an excepti∣on insinuat, unless there had been an prior obliegment before the Rebellion, to grant thelnfeftment, as if in that case (though in cursu Rebellionis) it would be sufficient to exclude the Liferent. The like was found, that Infeftments upon a voluntary Disposition, made in cursu Rebellionis, within the year, and for a debt due before Rebellion, excluded not the Liferent-escheat, March 19. 1628. Mr James Rae contra Buckie, Hope Horning, Laird of Fren∣draught

contra Meldrum, Gordon of 〈◊〉〈◊〉 contra Gordon of Haddo. But Infeftments in cursu Rebellionis upon special obliegments, to grant the same be∣fore Denuneiation, are valid. vide Tit. 14. § 53.

As to Legal Diligences of Creditors, whither Appryzing and Infeftment thereupon, being after Rebellion, will exclude the Liferent-escheat was declar∣ed the last Title in the second effect of Appryzings, the sum whereof is, that they are thus far preferablé to voluntary Dispositions, That being done in Cursu Rebellionis, for a debt before Rebellion; There being Infeftment, or Charge in cursu Rebellionis, they exclude the Liferent.

Secondly, Single-escheats require general and special Declarator: Life∣rent-escheats require but one Declarator for all, wherein the Title is the Horning, the Gift, and the Superiors Seasine, without farder instructing the Superiors Right, and without Continuation, July 2. 1622. Carmichael con∣tra Lermont, March 6. 1624. Dowglas contra Eastnesbit, June 23. 1625. Viscount of Stormont contra And there is no necessi∣ty to instruct the Lands holden of that Superior by the Defender. The rea∣son is, because that is presumed, unless the Defender disclame, or that the Superior be a Singlar Successor, never acknowledged by the Vassal, or his Predecessors.

27. Shipwrack, and Wath Goods, or Treasures in the ground, whose owner appeareth not, are Confiscat as Caduciarie, whereby the owners are presumed to Relinquish, or loose the same. And so a jure sup cadunt, and the things become nullius, and yet belong not to the first Possessor, as things re∣linquished do, by the Common Law, but do belong to the King, by his Royal Prerogative, or to others having Right from him. We have spoken of these before in the Title Real Rights. And shall only add this, that by that just and Noble Statute, Par. 1429. cap. 124. It is declared, that where Ships break in this Countrey, the Ship and Goods shall be escheat to the King, if they belong to such Countries as use the like Law anent Ship-wrack in there own Land, otherwayes they shall have the same favour, as they keep to Ships of this Land broken with them. It is also declared amongst the Statutes of King Alexander the Second, cap. 25. That if any Living Man or Beast, as Dog, Cat, &c. come quick out of the Vessel, the same shall not be accounted Ship-wrack, but shall be preserved to the Owner, claming and instructing his Right within year and day; Or otherwayes it shall belong to the King: So was it found, where an ox escaped alive out of the Ship, and the Admirals Decreet finding the same Escheatable, as Shipwrack was Sus∣pended Simpliciter December 12. 1622. Hamilton contra Cochran. In which case nothing was alleiged, but this old Statute, the genuine meaning whereof seems only to be where any person came to Land the Ship and Goods should not be confiscat as Wrack, but the posterior Act, Par. 1429. cap. 124. Repeats not that provision, but regulats the matter according to the custom of other Na∣tions, to do to them as they do to us, without any other Limitation. And therefore where some Persons came to Land, the Ship being broken, the same with the Goods dispersed were Confiscat, If Confiscation in the like case should be proven to be the Law, or Custom of that place, to which the Ship belonged, January 20. 1674. Jacobson contra Earl of Crawfoord.

28. Forefaulture is the great Confiscation, comprehending all other Penal Confiscations. It is extended to the taking away of Life, Lands and Goods, Par. 1424. cap. 3. For it is the Penaltie of the highest Crime, to wit Treason; which at first, and by its native Signification, it expresseth Crymes against the Life of any partie under Trust: So the Slaughter of any person under Trust, Credit, or power of the Slayer, is declared Treason, Par. 1587. cap. 51.

29. Thence it is also called Treachery, and the Committers thereof Trait∣ors. And because of that Trust betwixt the King and all the Leiges, as their Superiour and Soveraign: The chief point of Treason is against the Kings Person, as appeareth by the Act last Cited: These also, who without cause, wilfully raise a fray in the Kings Host commit Treason, Par. 1455. cap. 54. Upon the same ground, because of the Trust betwixt the Superiour and his Vassal, such Crimes against the Superiour, is also called Treason, and thereby the committer Looseth for ever, all Lands and Heritage he held of that Sùperiour, quoniam Atachiamenta, cap. 19. But this Treason infers not a Simple Forfaulture, but only is a ground of Recognition: But as now the Terms are take, Treason, and Forefalture of Life, Lands and Goods are adequat, and wherever the one is exprest in any Act of Parliament the other is understood for the Stryking or Slaying of any person, within the Parliament House, during the time of Parliament, within the Kings Inner∣Chamber, Cabinet or Chamber of Peace, the King being within his Palace, or within the Inner-tolbooth, the time of Session sitting, or within the Pri∣vy Council-House the time of the Council sitting, or in his Majesties Pre∣sence any where, is declared Treason, Par. 1593. cap. 173. Impugning the Dignity or Authority of the three Estates of Parliament, or procuring any In∣novation, or Diminution of there Power, is prohibit under pain of Treason, Par. 1584. cap. 139. And also declyning the King, and his Council, in any matter to be inquired before them, Par. 1564. cap. 129. Purchasers of be∣nifices at the Court of Rome, are ordained to be denunced as Traitors to the King, Par. 1471. cap. 43. Par. 1488. cap. 4. Par. 1540. cap. 119. So for∣gers of the Kings Coin, and home-bringers thereof, incurr the lose of Life, Lands and Goods, Par. 1563. cap. 70. Saying of Mass, resetting of Jesuits, Seminarie Priests, and traffiquing Papists: And these themselves are lyable to Treason, Par. 1592. cap. 120. Par. 1607. cap. 1. Raising of Fire wilfully, or burning of Houses, or corns, whither folk be therein or not, is declared Trea∣son, Par. 1592. cap. 146. Landed men committing or resetting Ryot or Robbery, incurr the pain of Treason. Par. 1587. cap. 50. And generally, Resetters, Maintainers, and Assisters of declared Traitors, commit Treason, Par. 1592. cap. 144. Accuser of others of Treason, if the accused be acquit commit Treason, Par. 1587. cap. 47.

30. Forefaulture confiscateth the forfaulted persons whole Estate, without any access to his Creditors; Yea without consideration of Dispositions In∣feftments, or other Real Rights granted by the Forfaulted Person, since or before the committing of the Cryme of Treason, for which he was forfaulted, which fall and became null, by Exception, Hope, Forfaultur Viscount of Ro∣chester contra Teuents of Callavrock, July 14. 1610. Campbel contra Lif∣nories, Spots Conjunctfie, Crawfoord contra Laird of Murdiestoun, unless these rights have been confirmed by the King as Superiour, or Consented to by him.

It only remains dubius, whether Feu Infeftments granted by Forefault Per∣sons, before committing of the Cryme be also annulted by the 〈◊〉〈◊〉. And the Act of Parliament anent Feus, Par. 155. cap. 72. Should not only de∣fend them against Recognition, and the Casualities of Superioritie, but even against Forfaultur it self, it being therein declared, that the King will Ratifie the saids Feus. The like is to be understood of other Superiors. So that though de facto they be not confirmed; Yet the Declaration, and Obleigment of the Statute standeth as a Confirmation thereof, or at least as an Obleigment upon all Superiors, against which, they nor their Donators cannot come. This is to be understood, while 〈◊〉〈◊〉 are allowed by Law, vide Title Infefints 34. Sect.

It was so decyded February 12. 1674. Marques of Huntlie contra Gordon Cairnlorrow, November 16. 1680. Campbel of Silver craigs contra Land of Auch∣inbreck, and the Earl of Argyl, not only because the Act of Payliament, 1587. Imports a Confirmation of Feus granted thereafter, but also because Forefaulture is by Penal Statute, and not by the Feudal Right, like unto Liferent es∣cheat, which returneth the Fie to the Superiours, but with the burdens put thereupon by the Vassal, whether Feu, blensh Ward, or by Annualrent or Tack. And therefore when any Person is Forefault, that is not the Kings im∣mediate Ward Vassal, his Estate, both Propertie and Superiority falls to the King, but with the burden of all Real Rights constitute by the Vassal; Yet Forefaultur of the Kings immediat Ward Vassal, proceedeth upon Crimes in∣ferring Recognition: And therefore returns his Ward Lands to the King, as they came from the King free of all burden. So that the Act of Parliament 1457. Which unquestionably secures against Ward, and Recognition must also secure Feus against the Forefaultur of the Vassal granter of the Feus, but will not secure any other Subalterne Right, without the Superiours consent, as a Blensh Infeftment, Jan. 13. 1677. Marques of Huntlie contra Laird of Grant.

32. Tacks also being Necessary and Profitable, are not excluded by For∣faultur, Maitland December 14. 1570. Home of Manderstoun contra Tenents of Oldhamstock, Leslie of Wachtcun contra The like as to Tacks for a competent Dutie, but not in Tacks for grassams, January 28. 1674. General Dalziel contra Tenents of Caldwall.

33. But by the Act of Par. 1644. Forfaultur was declared to be without prejudice to all Persons not accessary to the Cryme of the Superiour of the Rights of Property of any Lands, Wodset, or others holden by them, of the Forefault Person, or of the payment of their Just Debts, or relief of their Cau∣tionries our of the Forfaulted Estates, which is now rescinded by the general Act rescissary, Par. 1661. cap. 15.

34. Forefaultur could not be pronunced in absence of the Forefault Person, by the Justice Gerneral, but only by the Parliament. So that no Certificati∣on of the Justice could reach Lands, but only Moveables, So July 8. 1662. William Yeaman contra Mr. Patrick Oliphant. Neither could it extend to He∣ritable Bands, November 31. 1671. Anthonie Hag contra Moscrop and Ruther∣foord: But now the Justices may proceed to Forefault absents, in case of open Rebellion, and rysing in Arms, Par. 1669. cap. 11.

35. Because of the defficulty the King or his Donatar might have, in know∣ing the Rights of Foresaulted Persons, by Labouring the same with their own Goods, setting the same to Tenents, and up-lifting the Mails and Duties, as

their Heritage, and so being reput Heritable Possessors for the space of five years, immediately preceeding the process of Forefalture, the lands so labored, or pos∣sessed pertain to the King, and his Donatar, though they can produce no Herit∣able Right, or Title thereof in the Forefault Person: For tryal whereof Com∣mssion may be granted under the testimonial of the great Seal, to such persons as shal be thought fit by the advice of the Secret Council, to take cognition, by an Inquest, what Lands were brooked by the Forefault person, as Heritable possessor thereof, so commonly reput and esteemed by the said five years space, with power to call before them all parties pretending interest, which being retur∣ed to the Chancelarie ad perpetuam Remanentiam, shall be a sufficient Right, Par. 1584. cap. 2.

This right was sustained to a Donatar, though nearest of Kin to the Fore∣fault Person, and presumeable to have his Right July 11. 1623. Maxwel contra Westeraw. But here the Donatar was made to depone, that he had just reason to affirm, that the Rights were wanting, Hope possession inter eosdem. This right was not elided, though it was offered to be proven, that the forefault Persons Right was reduced in foro contradictorio upon Recognition be∣fore his Forefaulture, Feb. 20. 1611. Hairstons contra Ramebel. So the said 5. years possession being repute, Heritable possessor infers presumptionem juris & de Jure, of the forefaulted persons Right, which admits no contrary probation, As to the forefaulted persons Right, if the Quinquennial, Peaceable and Lawful Possession be proven: But the probation thereof by Inquest, will not exclude a contrary probation, by Reduction, of the possession of others, within the 5. years: And if the possession be not Lawful and Peaceable, but interrupted, or Vitious, the Statute takes no place, for by possession, Lawful peaceable possessi∣on of the forefaulted Persons must be understood: And if any person have moved Action within the 5. years, for taking away the Rebels right and possession, they will be heard after the forefaulture, as before; Yea, Citation be∣fore the 5. years, and Inhibition in the 5. years, with a subsequent Security, was found sufficient to take off the benifite of this Act, July 23. 1666. Earl of Southesk contra Marques of Huntlie. This priviledge is not competent by Exception, or Reply, offering to prove 5. years possession, but by a reture upon a Commission served by an Inquest, July 13. 1666. Sr. Henrie Hoom contra Sr. Alexander Hoom. In this Statute, it is also provided, that where there were Tacks, or possessions of Lands, or Teinds possessed by the forefault Person, in respect that the rights thereof might also be abstracted, that the King and his Donatar should continue in that same possession for sive years, without any accompt for the profits thereof, and longer, if a Right be instructed of the forefault person: And if a Fewer be forefault, the Land is not lyable for the Feu dutie, preceeding the Forefaulture, because the discharges thereof might have been abstracted, Possession for feuer then 5. years, by the Forefaulted person, was found sufficient to continue for 5 years, though no Tack was in∣structed, Jannuary 24. 1667. Sr. Henrie Hoom contra Sr. Alexander Hoom.

36. It is also declared in this Statute, that the Forefaultur of the appear∣and Heir, carries therewith the right of the Lands, to which he might succeed, though he were never entred Heir, nor Infeft, whereof Craig mentions a case, Lib. 2. Dieg. 8. That the Daughters of the Laird of Laisindrum were exclud∣ed from their Succession to their Goodsir, because their Father was forefault, though he was never received, nor infeft in these Lands.

37. Craig, in the forecited place moveth, but determineth not this questi∣on, whether the Forefaulture inserreth a Corruption of the Blood, of all the Descendents of the Forefault Persons, whereby, till they be restored, they are incapable of any Succession, though descending to them by the Mater∣nal Lyne. This Corruption of the Blood is frequently in Fngland, where persons are specially attainted and convict of Treason: And sometimes with us, it is called dishabilitation, and is a part of the Doom or Sentence, that the Successors of the Person convict, shall be incapable of Lands, Estate, Ho∣nour or Office; Yea, then Fame, and Memorie, is sometimes condemned, and their Surname abolished, as was done in the Forefalture of the Earl of Gourie: But it is not consonant to our Customs, that Forefaulture in other cases should infer this Corruption of Blood; First, because of the Multiplica∣tion of cases, to which Forefaulture is now extended, as to Thest on 〈◊〉〈◊〉 men, and false Coyn. 2. If none of the Descendents of 〈◊〉〈◊〉 persons were Capable of Succession to any person, that could not be, by reason of any speciality in the matter of Succession, but of something in their person, by reason of the Forefaulture, excluding them thence, which would not only take place in Heritage, but in Moveables; Yea, the Oye, or farther Off∣spring of the Forefaulted person could not succeed to their ownimmediat Pa∣rents, which would inferr, that they could be capable of no Goods, or Means, but the same would be instantly Confiscat. 3. Though Forefaul∣tures in Scotland have been very frequent, the off-pring of such have ordina∣rily acquired Lands, and Goods, and their Children Succeeded them therein, without obtaining Restitution of their Blood: So that this Corruption of the Blood is rather to be thought a Speciality, in some Attrocious Treasons by the tenor of the Doom of Forefaulture, then a general consequence thereof.

38. But whereas it hath been said, that the appearand Heir being Fore∣faulted, the King hath right to the Heritage, to which he might succeed; It may be Questioned, whether that my be extended to the appearand Heir, if he be Forefaulted, during his Predicessors Life: Or if it be only in the case, that the Heir apparent is forefaulted, after the death of his Predecessor. Where de presenti, he may be Heir, there is no doubt, if the person fore∣faulted should be fugitive, and survive his Predecessor: But the Heritage accresing to him, wherein he might de presenti infeft, would fall under forefaul∣ture, though he were not actually infeft; And it seems no less clear, that be∣ing forefaulted, if he should die before his Predecessor, that his brother, or Collaterals might succeed to their Father, or any other to whom the forefaul∣ted person, if he had survived them, would have succeeded. It is more doubt∣full, whether his descendents could, if any were, for these would Exclude the Collateralls: And there seems no reason to exclude them from their Grand∣fathers Heritage, not being dishabilitat: And seing I have not found it ex∣tended further, I conceive it more favourable, that the Heir appearand dieing before his Predecessor, should not hinder his Descendents to succeed to that predecessor: But unless the forefaulture did incapacitat the Predecessor, to dispose upon his own estate, the forefaulture in that case, would be improfi∣table; Yet seing we have no complaints of exhaeredatione in Scotland: But that Parents may freely dispose of their Estates at their pleasure, it would be hard, to bind up the Parent more in Relation to the Fisk, then tohis own Child, unless fraud to prevent the effect of the forefaulture without a ration∣all cause do appear.

39. For the further Security of the King and his Denatar, it is provyded, Par. 1594. cap. 202. That no Letter of Pension, Factory, Band or Assig∣nation, granted by any forefault person, shall be valid, unless it be confirmed by the King, or authorized by Decreet of an ordinary Judge, obtained be∣fore citation in the Process of Forefaulture, which seems to insinuate, that Creditors should be satisfied out of the forefault Estate, but it will reach no further then the Moveables fallen by forefaultnre, which seems to be affected in the same way, as falling by Single-escheat, the full Dominion in both be∣ing the Kings, but with the burden of admitting the diligence of Lawful Cre∣ditors before Declarator, but I have not observed this practiced, in moveables of forefault persons. The reason of this Statute appeareth by the Act imme∣diately preceeding, whereby a former Act of Parliament in favours of the Vassal of forefault persons is resoinded, and appointed to be delet out of the Books of Parliament, which rescinded Act, though it be not Extant, but delet as aforesaid hath affected forefault Estates, with the debts of the forefault per∣son, and with the subaltern Infeftments, granted by forefault persons not con∣firmed: And therefore such Rights being Constitute by a Law then standing, could not be derogat by a subsequent Law: And therefore it was 〈◊〉〈◊〉 to Caution, by the foresaid Act 202. That Simulat or antedated Rights, might not affect Estates Forefaulted, before the said rescissory Act.

40. Sentence of Forefaulture being pronunced, is declared Irreducible, upon any nullitie in the process, upon which it proceeded, till the 〈◊〉〈◊〉 be remitted by the King, or the partie tryed and acquite thereof: But restituti∣on shall only be granted by way of Grace, to the parties forefaulted, or their Posteritie, Par. 1584. cap. 135. Which was not found to extend to Dis∣habilitation of the Son of the Forefaulted person, but that it might by Act of Parliament be taken off, without Citation of any partie, who had acquired Right upon the Dishabilitation from the Donatar, which fell in consequence, February 24. 1665. Dam Elizabeth Douglas, and Sr. Robert Sinclair contra Laird of Wedderburn.

41. The Doom or Decreet of Forefaulture, when past in Parliament, gives immediat access to the Mails, and Duties of the Estate possest by the Forefault person, and needs no Declaratar, because it is a Decreet of Parliament, and hath the like effect as Ward, which requireth no Declarator, Jan. 6. 1681. George Hoom contra Mr. Patrick Hoom. The like though the Doom of Fore∣faulture was by the Justices in absence. seing it was ratified in Parliament, not by a Ratification passing of Course, but by a publick Law, ratifieing that Forefaultnre by the Justices, as if it had been done in Parliament: And all such Forefaultures by the Justices, being for open Rebellion, and rysing in Arms against the King, December 15. 1680. Gordon of Troquhen contra a Wodsetter of Barscow.

42. Bastardrie and last Heir makes things befall to the Fisk, as caduciary, because such things can be Lawfully Claimed by none. And therefore are ap∣plyed to the Fisk.

Ere we can conceive the effects of Bastardrie, we must understand the efficient that makes a Bastard, which being Relative and Defective, is best taken up by the opposite, viz. A lawful Child begotten of persons lawfully Married: So then a Bastard is a Child, whose Parents werenot lawfully Married; And therefore such are Bastards, First, Whose Parents were not

at all Married. 2. These whose parents were Married, yet were not in de∣grees capable of Marriage, 3. These who were Married, and in capable de∣grees, yet the Marriage was inconsistent, because of some impediment, as if either party were Married before, and the other Spouse on life, whether that were Solemnly, or Privately, by promise of Marriage, and Copulation following, in which last case, if the impediment be Secret, and not known to both parties, Craig observeth as his own opinion, and the opinion of the 〈◊〉〈◊〉, that the said impediment, though it be sufficient to anull the Mar∣riage, yet not to take away the Legitimation of the Children, procreat bona fide by any of the parties, before knowledge of that impediment.

But, because, who are the Parents, is sometimes dubious, procreation be∣ing Secret both in the Act and Effect: For clearing thereof, it is the common rule in the Civil Law. And with us, Pater est quem justae Nuptiae demonstrant L. 5. F. de in jus vocando. So he is presumed to be the Father, who the time that the Conception might be, was Married to the Mother; But in this case, Lawful Marriage is not opposed to Clandestine, or Irregular Marriage, as not being after Proclamation in the Church, or by a person having power to Marry by the Canons of the Church, or Statutes of the Countrie: But that is only understood, as unlawful Marriage in this case, which materially is unjust and inconsistent, where Marriage could not have subsisted, albeit it had been orderly performed, as being by persons in degrees prohibited, by Divine Law, or where either partie had another lawful Spouse then living, and un∣divorced: Yea, Marriage betwixt the adulterer and the adulteress, after dis solution of the former Marriage doth not inferr Bastardrie of the Children of the subsequent Marriage, though it may debarr them from Succession. The presumption, that the Children born in Marriage are the Husbands, requires such time as they might have been lawfully procreat, when both parties were free, and unmarried, which if it was 9 moneths before the birth, it is sufficient, but if less, the presumption will not suffice; Unless it appear the Child was unrype, and born before the time, otherwise the Child will be presumed to be the former Husbands. This is presumptio juris, and admits contrary pro∣bation. As first, if the Father were absent, or impotent, the time that the conception could be, which absence is not necessarily beyond Sea, as the En∣glish require the fathers absence: And therefore, if he be within the four Seas during the time the birth is in the Womb, this presumption prevaileth against his absence with them: But with us it will be sufficient, that his absence be special, and circumstantiat, that there remaineth no doubt, that he could not have been present. As if the Father were in prison, or at very great dist∣ance: So that a short time might not suffice him to be present. This pre∣sumption will also be taken off, by the Testimony of both Parents agreeing, that the Child belongs to another Father, and so is a Bastard: But the Testi∣monie of either of them will not suffice, as Craig relates, of a Lady, that hav∣ing controversie with her Son, she was accustomed to consesse that he was a Bastard: And of a Queen, related by the Doctors, whose name they for∣bear, Who, at the time of her death, declared to her Son, that he was not the Kings Son, yet he was received as King, in his Fathers place. It hath been more frequently seen, that the Father hath disowned the Child born of his Wife, which though it might inferr suspicion and reproach, yet not Bast∣ardrie, unless the Mother also of consent, or by process were made to acknow∣ledge it. It will not be sufficient to eleid the foresaid presumption, though the Wifes adulterie should be proven; Yea, though at a time answering to

the time of conception, though it hath an ordinary course of 9 moneths, yet hath had such variations, that the Child hath been accompted belonging to the Father, by reason of the Marriag, though it preceeded the Birth of the Child, only by the space of 8, 7, or the beginning of 6. moneths; Especially if by the judgement of Phisicians immaturity of the Child concurred; Yea, this presumption will atribute the Child to the Father, though the Child be born 9 10, or 11. moneths after the Fathers Death: But in these cases, the Proba∣bility of the circumstances may make the Mothers Testimony alone sufficient to instruct the Bastardie of the Child: Neither is Marriage here accompted, by the Solemnization thereof in the Church, which in some places is ordinari∣ly without that, and though with us, it be a requisit solemnity, yet it is not of the being of Marriage. And therefore, Cohabitation, as Man and Wife sup∣plyeth the Solemnity of publick Marriage, which being a 〈◊〉〈◊〉 Act, and having no record, could seldom be proven; Yea, though it could be proven by the Oath of both parties, or otherwise that there was never a formal Marriage, if the parties were capable of Marriage, Cohabitation would supplie, for after Contract, or Promises of Marriage, or Sponsalia, if copulation follow there is thence presumed a Matrimonial Consent de presenti, which therefore, cannot be past from by either, or both parties, as having the essential requi∣sits of Marriage If diligence be used for performing that Solemnity, though it take no effect, the Contract of Marriage will make the Child lawful, as when, in the time of the Proclamation thereof, the one partie died, where∣of Craig relateth a case: Yea, in the case of Edward Younger there mentioned, who having begotten Children under promise of Marriage, but refusing to ac∣knowledge, or perform it, the Woman having obtained Sentence of the Commissars (who are Judges of Matrimony and Legitimation) against the said Edward, for Solemnizing the Marriage, which though he obeyed not, the Children were accompted Lawful, and capable of Succession.

Marriage, as is before shown, Title conjugal Obligations, is proven by Co∣habitation of the Father and Mother as married persons, which was sustained upon 10. years Cohabitation, as Man and Wife, though it was offered to be proven the Child was reput Bastard, July 7. 1626. Somervail contra Hal∣tro. And there being a mutual probation, whether a Defunct was lawful, or a Bastard, and six Witnesses being examined on either side, though several of the Witnesses on the one side proved, that the Defunct was reput Bastard, and that his Mother gave signes of Repentance publickly in the Church, for Fornication with his Father: But others proving that they were in there house, and saw them Cohabit, as Man and Wife, but did not mention how long, the Defunct was found to be no Bastard, but a lawful Child, Jan. 15. 1676. Mr. Robert Swinton contra Marion Kaills; Yet this was eleided by contrary probation, that the Father had then another Wife, and a lawful Child thereby, and that the person in Question was reput Bastard, Hope Bastardrie, Archbald Chirnside contra Isobel Grieve, and Christian Williamson.

Bastardry is also eleided, by proving the person in Question, to be holden and reput Lawful, unless the pursuer condescend, and instruct the contrary, by particular circumstances, Hope Bastardry, Hog contra Hog. Ninian Chirn∣side contra William Hoom. The like where the person in question was 50. years old, James Hope contra Scot: The like being 80. years after the Bastards death, who died an old man. The Lords would not grant pro∣cess

de statu defunctorum post tantum tempus, Feb. 25. 1642. Malcom Craw∣foord contra Hellen and Bessie Russels.

43. Bastardrie hath no effect till Declarator, which proceeds upon a ge∣neral Citation against all and sundrie, at the Mercat Cross of the Shire where the Bastard dwelt, at the instance of the Kings Advocat, or Donatar, because the Bastard can have none to represent him, but if the Bastards debitors be called specially, there will not only follow a general Declarator, that the person was Bastard, but a decernitur against the debitors, which is a special Declarator, though these may be disjoyned in several processes, but if any partie appear, as nearest agnat, he would be admitted to defend, Decem. 11. 1679. James Somervail contra William Stains.

It was found that a Declarator of Bastardry was not relevantly Lybelled, that the Father and Mother were not Married, unless it were added, that the Defunct in his life, was holden and reput Bastard, which was found and in∣structed, by his taking Legitimation from the King, Feb. 19. 1669. Kings Advocat contra Craw, June 15. 1672. Livingstoun contra Burns, Jan. 6. 1680. Somervail contra Stains.

44. As to the effects of Bastardrie, from the former principile, Pater esi quem justa matrimonia monstrant; Children not begotten of parents lawfully Married, are called vulgo quaesiti, And are compted in Law, to have no Fa∣ther agnats, nor Kinsmen on the Fathers side, and therefore they cannot suc∣ceed to their Father, or any of their Agnats: Neither can any of these Agnats, succeed to them, either in Heritable or Moveable Rights, but only their own Succession, by Lawful Marriage. So then Bastards dieing without Lawful issue, their goods become caduciarie and void, and so fall to the Fisk: Yea, if the Lawful Issue of the Bastard at any time fail for the same reason, their goods become caduciarie, and return to the King, either by reason of the Bastardrie, or as ultimus Haeres, July 13. 1626. Haltro contra Somer∣vail.

Though Bastards can have no Ascendent or Collateral Heirs of Lyne, yet they may have Heirs of Tailzie, in Lands which did exclude the Fisk, when the same was provided to the Bastard, and the Heir of his bodie. Which failzing, to any other person and his Heirs, Spots Bastardrie, Weir contra Kings Donatar. They may also be Heirs of Tailzie specially nominat, as Craig observeth, in the case of the Earl of Errol contra Hay of Cockstoun, who, and the Heirs of his Body made a member of Tailzie, which was sust∣ained, though he was Bastard.

Bastardrie hath only effect against Succession to the Bastard, but doth not incapacitat the Bastard, to dispose of his own Estate, Heritable or Moveable in his leige paustie: And likewise the Bastards Wife hath her share of his, Moveables as other Relicts have: But if the Bastard have no Issue, he hath no power of Testing, and can neither nominat Executors nor leave Legacies unlesse he obtain Legitimation from the King.

45. Legitimation, though it have many ample Clauses, yet the main effect of it is that the Bastard having no Lawfull Children, hath thereby power to Test, June 18. 1678 Commissioners of the Shire of Berwick contra John Craw. But it hath no effect, as to his Heritable Rights, which his Testament cannot reach: It will have the like effect, if the Bastard obtain from the King, the power of Testing: And therefore a Bastards Legatar was preferred to the Donatar of Bastardry, July 7. 1629. Wallace contra Mure. In which case it was found, the Relict had her half: And if the Bastard had Lawfull Chil∣dren surviving, he may Test without any gift, none being concerned, but his Children, to whom also he may name Tutors, as was found, March 8 1628. Mare contra Kincaid, and these will succeed him as Heirs, or Executors.

The effects of Bastardry, in hindring there Succession to others, falleth to be considered in the subsequent Titles, concerning Succession.

46. It remains to be cleared, whether the Bastards Debts follow his Estate, and that diligence of Lawfull Creditors will exclude, the Donatar or Fisk: It was so found, that the Bastards Creditor, arresting before his death, had access, notwithstanding the Bastardry, Feb. 26. 1611. Clerk contra Earl of Perth. The difficulty will be, of the diligences competent after the Bastards death seing he hath none to represent him, yet Bastardry is but a species of ultimus Haeres, the ground in both being the same, that the King is Heir, be∣cause there can be no other Heir, and so is last Heir. And therefore in both cases, the Estate is lyable to the Debt, which may affect it, contra Haeredita∣tem jacentem by Adjudication, calling the Officers of State, and Donatar, Craig is of the same opinion, lib. 2. Dieg. 17. It was so found, July 25. 1560. Kings Donatar contra

It was also found, that the Donatar of Bastardry pursuing for payment of a band due to the Bastard, was lyable to fulfill the Bastards back-band, June 20. 1671. Alexander Alexander contra Lord Saltoun.

47. Ultimus Haeres may seem to be a Succession from the dead, and to come in amongst other Heirs, yet though it hath the resemblance of an Heir, because it hath effect, when there is no other Heir, and makes the Heritage∣lyable to pay the Defuncts debts, it is only a caduciarie Confiscation of the Defuncts-Estate, with the burden of his Debt, but no proper Succession to him therein, which appeareth, thus; The Heir is one person in Law, and is therefore personally obleiged for all the Defuncts debts, so is not the Fisk, against whom, or the Donatar, there lyeth no Personal Action for payment, but for Restitution, if he have intrometted, and of Real Action, contra Haere∣ditatem jacentem, which is most proper by Adjudication, being the Supple∣ment of ordinary Actions, or Executions competent by Law. For there be∣ing no partie to represent the Defunct debitor, there can be no Decreet, but cognitionis causa, and Adjudication following thereupon, in which the Fisk, or Donatar is to be called passive, as the party having Interest, to see that the Debt be due, which will affect the Defuncts caduciarie Heritage, to the detre∣ment of the Fisk, or Donatar. So then ultimus Haeres, and Bastardrie, are of the like Nature, which being caduciarie Confiscations, fall to the Fisk, because no other can have right, there may be this difference betwixt them; That in the case of the last Heir, Creditors, for their satisfaction, may confirm the Defuncts Moveables, and so recover the same, for their own Satisfaction, in

which case, they would be lyable, as other Executors, to the remanent Cre∣ditors of the Defunct, and to the Fisk, or Donatar, for the superplus: As in the place of nearest of Kin, & to the Relict also for her part, but this being only for obtaining their own Satisfaction, and for shunning a more extraordinary way, by Adjudication (which also they may use at their option) they ought not in prejudice of the Fisk, to have the third part of the Defuncts part, as other Executors, but in the cases of Bastardry, Confirmation of Executors is not competent, because the Bastard, being excluded from the power of ma∣king Testament, can have no Executor.

Concerning last Heir, the greatest doubt is, who they are, and in what Cases they take place? As to the first, Craig, lib. 2. Dieg. 17. is not posi∣tive, whether Superiours be last Heirs of the Defunct, in the Fies held of them, or if the King be the last Heir for all: And according to the anti∣ent Feudal Customs, there is no doubt, the Feus return to the several Superi∣ours, for thereby none could succeed (without Express provision in the con∣trary) but the lawful Issue of the Descendent of the first Vassal, whose Person and Race was peculiarly chosen, and confided in by the Superiour.

But now Fies not being gratuitous, as at first, but for onerous causes, besides the reddendo & service, and ordinarly granted to the Vassal, and his Heirs what∣somever: Which failzing, the King, by his Prerogative Royal, excludeth all other Superiours, who are presumed to retain no right, nor expectation of Succession, unless by express provision of the Investiture, the Fies be pro∣vided to Heirs Male, or of Tailzie, which failzing, to return to the Superior: In which he is proper Heir of Provision.

As to the other Doubt, in what case the King is last Heir, Craig, in the forenamed place relateth, that some were of opinion, That if the Defunct had no Heirs within the 7th degree, the King taketh place as last Heir. And that others thought it to hold in Collateral Successions, but his own opinion is in the contrary: That any Heir, of what degree soever hath Right, which suit∣eth with the ground now laid, that the King hath right, as last Heir to the Heritage become caduciarie; Because no other partie can be instructed law∣ful Heir. So he reporteth, it was found in the case of the Earl of Marr, who was served Heir to Lady Elizabeth Dowglas Countess of Marr, beyond the tenth degree. And that the Lord Seatoun, that he might have a Title to the Re∣demption of the Lands of Longnidrie, against Forrester, served himself Heir to the granter of the Wodsett, beyond the 7th degree, whereof several degrees were Collateral. And the French King Henrie the 4th Succeeded to Henrie the 3. though not within the 15. degree.

The gift, or right of ultimus haeres hath no effect, till Decreet of Declarator be obtained thereupon, in the same way as in Bastardry, July 20. 1662. Laird of Balnagoun contra Dingwal. July 31. 1666. Thomas Crawford contra Town of Edinburgh.

TITLE XXVI. Succession.

• 1. Whether in equity there be a Rule in Succession.
• 2. That Rule is the expresse will, or pre∣sumed will of the Defunct.
• 3. The first degree of Succession by the presumed will of Defuncts.
• 4. Whether in equity, there be right of representation.
• 5. Failing descendents, ascendents succeed in equity.
• 6. Failing both brothers and sisters succed.
• 7. Failing these the nearest Agnat suc∣ceeds.
• 8. The succession of Cognats.
• 9. The Jewish succession, whereby all the sons succeed, and exclude the daughters, and the eldest son hath a double portion.
• 10. Fathers could not prejudge the pri∣mogenitur of their eldest Sons.
• 11. By the Jewish succession, failing de∣scendents the inheritance passeth to Brethren, and these failing, to Fa∣thers Brethren, and failing these to the nearest Kinsman.
• 12. Whether in the Jewish Succession, there be right of representation.
• 13. Why no Femals but daughters suc∣ceed among the Jews.
• 14. Why Parents Succeed not amongst the Jews.
• 15. Succession amongst the Romans was first by Testament.
• 16. If there was no Heirs institute by Testament, the antient Roman Law called all the Children of the Family unforisfamiliat male & female, not excepting adopted Children to Succeed.
• 17. These failing, the nearest Agnats, but no Parents thereby Succeed.
• 18. The Romans Succession be the pre∣torian Law.
• 19. Their Succession, by Justinians no∣vel constitution.
• 20. In Feudal Succession, the first Rule is the expresse will of the partie by the investitur.
• 21. The nixt Rule is, the conjectured will, according to the nature of the Fee.
• ...

• 22. Primo-geniture now established, by common custom in Feudal Rights.
• 23. Succession in Scotland, is wholly different. in moveables and im∣moveables.
• 24. The several degrees of Succession in moveables,
• 25. Succession in Heritable Rights.
• 26. The difference betwixt the two suc∣cessions.
• 27. The priviledge of Heirs, not to be prejudged by their predicessors deedes on Death-bed.
• 28. What is estimate Death-bed.
• 29. Against what rights Death-bed is extended.
• 30. Death-bed annulls no deeds for causes onerous.
• 31. Dispositions in Testaments, are as on Death-bed.
• 32. Annus deliberandi.
• 33. Kinds if Heirs in Scotland.
• 34. No place for Adopted, or Cognats in succession with us.
• 35. Parents Succeed to their Children, & exclude the Parents Collaterals, or these representing the Colaterals

SUCCESSION to Defuncts, is the most Im∣portant Title in Law, for thereby the Rights of all persons, do necessarily passe once, and fre∣quently often, in every generation, and there∣fore the Rule and Course of Succssion ought to be accurately searched out, and followed; and be∣cause the Channel of Succession is with us divid∣ed in two currents, by the one whereof, all He∣ritable Rights; and by the other all Moveable Rights are conveyed from the dead to the living. The first passing unto Heirs, the second unto Ex∣cutors: We shall in this Title consider, that which is common to Succession, and in the subsequent Titles, that which is proper to the several kinds thereof.

As to the common Consideration of Succession, we must severally inquire. First, what Natural Equity holdeth forth of Succession, 2. What the Judi∣cial Law. 3. What the Civil Roman Law. 4. What the Feudal Customs. last, What our own Law, and consuetude, provideth concerning Suc∣cesion.

1. For the first, it may seem, that Succession hath little Foundation, far lesse a competent Regulation, in Equity, or by the Law of Nature; Be∣cause the matter of Succession is so variable, That every Nation, Yea, al∣most every Province, and many Cities, have their several Constitutions and Customs for Succession, arguing it to be wholly in the Arbitriment of People, and Authority over them.

Yet this will not follow, that Succession hath no Rise, nor Rule in Equity; For, as hath been ofttimes showen before, most of the Rights of men, are ordered in Equity; Yet so, as they are put in the owners power, who may

alter the same by there will. So it will be found in the matter of Succession, which appeareth thus.

First, Succession was before Constitutions or Customs, of Constitution there will be no doubt, these are but Rare to this day, Succession being yet ordinarily by Custom, and Custom necessarily implyeth Antecedent Acts of Succession, Inductive thereof, which therefore, behoved to have some other Rule, then the Custom thereby introduced. 2. Where there is nei∣ther Law nor Custom, concerning Succession: As when People from divers Countries do gather into new Plantations, in America, and live not severally, as parts of their Mother Countries, but joyntly: Such have goods, which by their death, become not caduciarie or nullius, to be appropriat by the first Occupant. If therefore, they remain in the Property of some persons, which needs must be by some Law, it can be by no other, then Natural Equity, or the Law of rational Nature. 3. It is not to be thought, that GOD, who hath allowed Propertie, would leave Man distitute of a Natural Rule, where∣by to Regulate it after the Owners Death, though there were no Law, nor Custom about it.

2. But it is not so dubious, that there is a Rule of Equity in Successions, as what it is, for clearing thereof, we shall parcel it out thus: First, every Right, being a Faculty, or Power of Exaction, or Disposal; It is a chief interest and effect of it, that the Owner may dispose thereof, not only to take effect presently, but if he please to take effect after his Death, and by the Law of Nature, the sol will of the Owner is sufficient to passe, or transmit his Right, if communicable, both in his life, and after his Death.

So then, the first Rule of Succession in Equity, is the expresse will of the Owner, willing such persons to Succeed him in whole, or in part. It may be objected, that the will of the owner is not the Rule of Succession, because there lyeth upon the Owner a Natural Obligation, to provide for his Relations, not only during his Life, but after his Death; As it is said, 1 Tim. 5. v. 8. He that provideth not for his own, especially these of his own Familie, hath denyed the Faith, and is worse then an infidel. Which importeth that infidels have naturally that Principle: And therefore, the first member of Succession, in Equity, must be those of the Defuncts Family, and not those of his Instituti∣on, or Choice. This doth indeed well conclude a Natural Obligation on all men, to provide their own; But first, it will not extend so far, as to inca∣pacitat the Owner, to dispose of his own, either in his Life, or after his Death: So that there remains a competent provision for his own, otherwise, he might not even gift in his Life, but he may gift, both to take effect in his Life, and after his Death: And is not necessitat, to institute his own as Heirs, but to provide them. 2. The dutie of Provision, is a Personal Obli∣gation, but the power of Disposal, and Succession thereby, is a Real Right, which are toto genere different Rights; Now Real Rights are not hindred, nor altered by Personal Obligations, though the Disponer hath failed, and re∣mains Debitor, as an obliegment to dispone, is no Disposition: But the pre∣sent dispositive Act of the will doth only Constitute, or convey the Right: Which, though it be posterior to an obliegment, in favours of any other, that doth not annull the Disposition, though it oblidge the Disponer. If there be no express will of the Defunct, the main difficulty is, what is the second Member of Natural Succession: wherein the presumed will of the De∣funct

takes place, which hath this Rule, quod naturaliter inesse debet, pre∣sumitur.

And therefore the Defuncts will is presumed to institute his own, whom he is naturally oblieged to, provid in the first place: So that it is not the oblig∣ment to provide, but the Defuncts will presumed thence, which disposeth up∣on his Succession, for the oblidgment to dispon, and the actual dispositon, are different toto genere: And if the oblidgement to provide, were the Rule, the express will of the ownèr could not over rule it; Where there is a custom of Succession, the Defuncts will is presumed, to be according to that custom; But that hath its efficacie, rather from the Custom, as it is a positive Law then from Equity.

The presumed will of the Defunct, to provide his own, is not indefinit of all his own; But it hath a natural order, or substitution, standing in the nearest degree of Consanguinity: For natural reason sheweth, that as there is not an equal Relation, so there cannot be an equal Devision to all, and there being no Natural Rule of proportion, the nearest Degree must exclude the farther Degrees in Succession, which is clearly held forth in the foresaid Text; Having an Explicatorie, and Applicatory Term, especially these of his own Family: And as the proportion is unknown, so the benefite, being ex∣tended to all 〈◊〉〈◊〉, would evanish. Therefore, what ever Natural Affecti∣on, or Charity, may obleige the Defunct to have done expresly, his pre∣sumed will hath no Rule beyond the first Degree.

3. Fourthly, Therefore the first Degree of Succession, by the conjectur∣ed will of the intestat, is of Children, according to that, Rom. 8. 17. If children, then Heirs: Which consequence doth necessarily import, That all Children are Heirs: Neither can this be an allusion from the Judicial Law, by which all Children were 〈◊〉〈◊〉 Heirs; But the Male excluded the Female: Therefore it must needs be a consequence form the Law of Nature, and se∣ing there is no different proportion, held forth by this Text, or by the Light of Nature; The Succession of all Children must be in Equal shares, whether Male or Female, for in all Communions, and Partnerships, an Equal Division takes place, except an Unequal be expressed.

4. It is more dark, whether by the Law of Nature, there be competent, the Right of Representation, whereby the Issue of the Defunct Children re∣present them, and come in with the surviving Children, to get that Share, which their Defunct Parent would have got, if alive; whereby they would not succeed in capita, the whole Successors getting Equal Share, but in stir∣pes: Whereby the Issue of the Defunct Children, though they succeed equally among themselves, yet unequally with the surviving Children, be∣cause the whole Issue of the Defunct, get but an equal share with each of the surviving Children: As if a Father having three Children, the eldest dying before him, leaves one Child, and two Oyes by another Child, if there be place for representation, the Heritage would divide in three, the two surviv∣ing Children will have two third parts, the other third will divide in two, whereof the Child of the Defuncts will get one half, and the other half will divide equally betwixt the two Oyes: So then the question is, whether the Descendents will thus succeed, or if the Survivers will wholly exclude the Issue of the Deceasing.

This Right of Representation, taketh place with us, and most other Nati∣ons, in the Right of Immoveables; Which we call Heritable Rights, whether it be of Descendents, or Collaterals: But doubtless in that the Course of the Law of Nature is altered, for the preservation of the Stock or Stem of the Familie: So that it is clear, that there is no Right of Representation, in Collaterals, by the Law of Nature, as that the Child, or Grand-child of a Brother should come in with a Brother, because the Propinquitie of Blood, Natural Affection, and so the Presumed Will of the Defunct is diminished: But it is not so clear in Descendents, neither shall we be positive in it, but it seems most suitable to Reason, and the Text adduced; That if the Issue of Defunct Children remain in the Familie, that they should come in by Representation, in the place of their Defunct Parent, for, these that are in the Fami∣ly, extendeth to all that are not Forisfamiliat, whether Children or Grand∣children, to whom there remaineth like affection, in the common Parent: but when the Defunct Child was forisfamiliat, and so presumed to have been provided, and to have gotten a Share, and therewith put out of the Familie, to live in a distinct Familie; In that case, there seems no ground for Re∣presentation, which doth agree to our Custom, in the Succession of Move∣ables, wherein there is no Right of Representation, but the nearest of Kin ex∣clude the Issue of the Defuncts, which were of the same degree, which Suc∣eession is certainly more near unto the Natural Succession.

What hath been said, may sufficiently clear the Natural Succession, of the Defuncts descendents, whether Children, or Grand-children, and while there are any Descendents, there is place for no other.

5. The third Branch of Natural Succession, failing the express will of Defuncts, and their Descendents, or the Issue of their Bodies, is of Parents, among whom, these in the nearest degree are preferable, as Father and Mother: And if the Father be dead, there seems to be place for Represen∣tation to his Father, to come in with the surviving Mother Equally; But other Parents of, or by the Female Line, who are in another Family, from the ground laid in the Text, of providing these in the Family, seem not to come in to exclude Brothers, and Sisters, and other Collaterals in that Fa∣mily, as the Grand-father, and Grand-mother, on the Mother side: It will not be opposite to this, which is said, Children are not to lay up for Parents, but Parents for Children; which is not to be understood absolutely, but compa∣ratively, and according to the ordinar course of Nature.

6. The fourth Link of Natural Succession, is Brethren and Sisters, among whom Brethren and Sisters German, being related by both Bloods, exclude these who are only of one Blood, by the Fathers side: the reason is, because the presumed will of the Defunct, being from their Interest and Relation, these of double Relation, by both Bloods, are preferable to these of single Relation.

7. The last degree of Natural Succession is, of Uncles, Aunts, Nepheus, Neices, all which being in equal propinquity to the Defunct, come in together, And failling these, the Succession would befall equally, to the nearest degree of Cousines, among whom the nearest degree excludeth the father, without Right of Representation: And these conjoyned by both Bloods, exclude these onjoyned by one. Husband and Wife, doth not succeed properly, either to

other, but having a communion of goods, there is a Division by the Death of either.

8. The main question is here, whether there be Naturally, any difference in Succession, betwixt the Collaterals on the Fathers side, who are called Agnats, and the Collaterals on the Mothers side, who are called Cognats. Justinian in his novel Constitutions, cap. 4. 127. took off all distinction of Ag∣nats, and Cognats in Succession: For which he is generally reprehended by Interpreters, Who behold such a difference, even in equity, Cognats be∣ing conjoyned by Women, who ordainarily, are under the power of others, even naturally by Marriage. And so being of another Family, they are not of the Defuncts own Family, as the Agnats are (amongst these, the Mother, Fathers Mother, or other Ascendents, on the Fathers side in his Family, are not hereby excluded) and so neither these or other, by their express, nor pre∣sumed will, can transmit any Goods, or Estates. Yet this point remaineth more dark: And I conceive, what hath come by the Mothers side, or by the Grand-mother, &c. therein the Cognats of her Blood would naturally suc∣ceed, because there are two grounds of Presumption joyned, Propinquity of Blood, and Gratitude, or Remuneration to that Linage, by whom, such things by Succession came. So that Paterna Paternis, Materna Maternis, ought to take place in equity, as the presumed will of the Defunct, unless the express will, or the Law, or Custom of the place be to the contrare.

So much for the Natural course of Succession, which hath been the more insisted in, not only to shew the goodness and righteousness of GOD, instru∣cting man, with an in-bred Law, written in his heart; though he were desti∣tute of any humane constitution or custom, so that he might walk justly, in this important matter of Succession: Albeit all the Lines of this Divine im∣pression, be no clear, to our Sin-dimmed eyes; But also that, where positive Law, or Custom is dubious, in the matter of Succession, or is defective therein, Emendation, and Extention may be fetched thereto, from the Law of Nature, we shall now proceed to the positive Law of God, given to Is∣rael, concerning Succession.

9. The Judicial Law, in the case of the Daughters of Zelophehad, Num. 6. 27. Determineth the order of Succession, in Lands or Immoveables, to stand as a perpetual Statute to the Children of Israel. Thus the first degree of Succession is, of all the Sons, whereby the Daughters, and their Descendents are excluded, but the Sons do not Succeed equally: For the first born had a double Portion, of all that the Father had, Deut. 21. 17. By which the eldest Son had twice as much as the other Sons: So that the Heritage being divided in one Portion more then there were Sons, of these the eldest had two, and each of the rest one; As if there be two Sons, it divides in three, whereof the elder hath two third parts, and the younger one third part; If there be three, the Heritage divides in four parts, whereof the el∣dest hath two fourth parts, which is the half, and each of the rest hath one fourth part.

10. This Right of primogeniture, was so secured, that the Father could not preser any other Son thereto, Deut. 24. v. 16. Failling Sons, the inheri∣tance passes to the Daughters equally; For though the Text expresseth it to

passe to the Daughter, in the singular number; Yet it is cleared by the con∣text, that all the Daughters are therein included, for the Daughters of Ze∣lophehad, though more in number, are found to have the said Right, and to get an Inheritance among their Fathers Brethren, by which it appeareth that the Right of Representation had place there, for all the Daughters of Zelophe∣had were but to have that share which their Father would have had, if he had been alive among his Brethren, for they claiming the Right of their Father, whom they show not to have been in the company of Corah, thereby fore∣faulting his right: So then, right of Representation must take place amongst all descendents: So that the Children of the Sons, though these Sons survive not their Father, would exclude the surviving Daughters, or would come in with the surviving Sons, not equally, and in capita, but in stirpes, whereby they would succeed to the shares of their pre-deceased Fathers, by Right of Representation.

11. The third degree of Jewish Succession, is failing Descendents, the in∣heritance passeth to the Defuncts Brethren, and these failing, to his Fathers Brethren, and these failing, to the nearest Kinsman of his Familie, that is, the nearest Agnats on his Fathers side, where all the male Agnats, of the same degree are understood. It doth not appear whether in this Collateral 〈◊〉〈◊〉, there be place for Representation; and though there be no mention of the Succession of Women, or their Issue, but only of Daughters, Some have thought, from the paritie of Reason, in everie degree, failing the Males, the Females are to Succeed, and to exclude further degrees of Males, as if there be no Brothers, but Sisters, these should exclude the Fathers Brother: It may be also thought strange, that in all this course of Succession, there is no mention of the Succession of Parents.

12. In answer to these doubts, as to the first, I conceive, that in Collateral Succession, there is also place for Representation, so that the Brothers Sons as representing the Defunct Brother, their Father would exclude the Fathers Brethren. And so of the rest, because it is said, if there be no Brethren, the Inheritance shall passe unto the Fathers Brethren, which 〈◊〉〈◊〉, unto the nearest Kins-man, and if there be no Right of Representation, the Cousin-ger∣man, or Father Brothers Son would exclude the Nephew, or Brothers Son, for Uncle and Nephew are never understood by the name of Cousins or Kins∣men, but have that special nominate relation of Uncle and Nephew, or Fa∣ther, and Brother Son, and therefore the Brothers Son, as representing the Brother, must succeed, and exclude the Fathers Brother. 2. Cateris paribus, Succession will certainly descend to the Brothers Son, and not ascend to the Fathers Brother.

13. As to the second doubt, Ihold, that only Daughters and their Issue do succeed, and no other Females, or their Issue; the reason is, First, from the Text, where failling Sons, Daughters are exprest, but failling Brothers Sisters are not substitute, but Uncles. 2. The Division and Succession, and the Land of Canaan was Typical, and was not to passe from Tribe to Tribe, and therefore, Daughters succeeding, are appointed to Marry in their own Tribe; because ordinarily they were to be Married, when their Fathers suc∣cession did probably appear; but this could not have been, if Fathers Sist∣ers, and these of further degree had succeeded.

14. As to the third, concerning Succession of Parents, it is sure, Mothers, and all Cognats, by the Mother side, being ordinarily of other Tribes, and Families, were for the reason now adduced, excluded from the Succession. The Text is clear, that only Kins-men in the Family, that is on the Fathers side succeed; But the reason why there is no mention of Fathers, &c. May be, because the Land of Canaan, being Typical, is fixed to Tribes and Fami∣lies, it uses not to passe by Testament, or provision, or to be acquired fur∣ther then by Wodset, to return at the Jubile; Therefore among the Jewes, Lands passed by the ordinar course of Legittime Succession, and so came from the Fathers to the Children, which presupposes the Father to have been pre-deceased, and could not succeed.

By this Tract of the Jewish Succession, it is clear, that GOD, by his Po∣sitive Law, altered the effect of Equitie, and of his Moral Law, in suc∣cession: For, it hath been now shown from that place (if Children, then Heirs,) That all Children must needs be Heirs, not by the Judicial Law, but by Equity; And yet by the Judicial Law, not all Children are Heirs, but Sons exclude Daughters, and Females are excluded by Males of a far distant degree, which necessarily infers, that for expedience, the course of Successi∣on may be altered. The like must also be in other effects of Equity, which are in our power.

15. The order of Succession in the Civil Law, did exceedingly varie, be∣ing in many points different, in the Ancient Law of the twelve Tables, in Honorarie Law, introduced by the Edicts and Customs of the Pretors, who had Authority to Supply, and Correct the Ancient Law; and in the Impe∣rial Constitutions, especially in the Novel Constitutions of Justinian, they did all agree in this, that the chief mean of Succession, is the Will, or Testa∣ment of the Defunct, which they held so Sacred, That all Pactions, or Provisio s, which might any way hinder the Free Liberty of Testing, or any Act, whereby Defuncts might be Restrained, or Constrained in the free Disposal of their Estates, were not only null, but exclusive of such Per∣sons, from having any interest in the Defuncts Inheritance; Yet were the Romans so sensible of the Natural Obligation of Parents to provide their Children, that their midle Laws, necessitat Fathers either to institute ther Children, or expresly to exhaeridat, or disherish them, expressing their de∣linquencie of Ingratitude, the kinds and measures whereof, the Law did determine: So that if the Children were past by in silence, and neither In∣stitute nor exhaeridat, the Law declared the Testament void, and if they were exhaeridat without a due and true offence, it did allow the Children querelam inofficiosi Testamenti, that is, complaint against the Testament made contra officium, which is the Natural Obligation, or duty of Parents to pro∣vide their Children; For the like Reason, the same Complaint was compe∣tent to the Fathers, against the Testament of their Children, but because that remeid might have been eleided, by exhausting the Heritage by Legacies, whereby the institution of the Children might prove ineffectual, for their provision: Therefore, the Law allowed Children a Legittime Portion, be∣ing the sourth part of the Heritage; which that, it might extend to all Heirs. Falcidius was the Author of that Noble Law, restraining Legacies, so that there might remain a Portion to the Defuncts Heirs, which Law and Porti∣on, in Honour of his Name, was called the Falcidian Law, and Portio Fal∣cidia, whereby the fourth part of the free Goods of the Testator, remained

always Secure against Legacies, and when a new Subtilty was invented, to frus∣trat the Falcidian Law: By taking away the Heritage, not Directly by Legacies; but Indirectly by Trust or Fidei-comisses. Trebellianus procured that Ordinance of the Senate, called Senatus-Consultum Trebellianum, where∣by that Portion called also Trebelliarica, should remain safe against Fidei∣Commissarie Trusts: And though it be the Common Opinion of the Doctors: That if the Defunct Expressly Prohibit the Heir, to take the benefit of his Falcidia or Trebellianica, they will be thereby excluded, yet the Common opinion, is that it cannot be extended to Children, as to their Legittime, whom the Law hath fullie secured, either by Ordaining them to be in∣stitute Heirs in Whole, or at least in a fourth Part; which is their Natural, or Legittime Portion: And if they be Institute in less, they have Right to the Supplement of their Legittime Portion, or otherwise they must be Express∣ly, and Justly Exheredat, and they have the Common benefit of other Heirs, of their Falcidia, or Trebellian, which the Testator cannot Frustrate, with out express Prohibition.

16. If there be no lawfull Testament by theLaw of the twelve Tables (which is the Ancient Roman Law, and in comparison of the Pretorian, or Imperial Law, is only called the Law, or the Civil Law) the Succession of Defunct, falleth in the first place to the defuncts Children, or nearest descendents with∣out Distinction of any lawful Children, though Adopted, or Posthumus, or though of diverse lawful Marriages; whether Male or Female: So that they re∣main in the Defuncts familie, and in his Paternall power, for these who are emancipat, and demitted from the familie, and from under the Paternall pow∣er, they are either really or presumptively provided, and so have no share of the Succession (of this Paternal Power, and Emancipation, see before, Tit. Obligations of Parents) These in the familie were called Haredes Sui & ne∣cessarij; because they were ipso facto Heirs without solemnity or entrie; Among these, the Right of Representation had place, so that for example, the Grand Children succeeded with theChildren but not equally, et per capita; but per stir∣pes: For theGrand Children had but the share of their defunct Parent equally among them, and so of all other descendents being in the Familie. The Pretors did in a part alter this, and brought in the Children or Issue emancipat with those in the family, without distinction, providing the emancipat brought in their goods, and adjected the same to the Inheritance, per collationem bonorum; yet because only the Law, that is, the Ancient Law, could make Heirs: The Emancipat were not called Heirs, but bonorum possessores. The Pretorian Law did also take off the necessitie, and dammage of the Succession, that none might be necessitate to be Heirs, yea all Heirs had the benefite of an Inventar, being timeouslyand duelie, made beyond which they were not lyable for the defuncts Debts.

17. The next degree of Succession, by the ancient Roman Law, was failing Descendents in the Familie, the nearest Agnats of the same degree succeeded; But there was no Succession ofParents, nor of Cognats related by the Mothers side (here Mother comprehends Grand-mother and all other Ascendentsof that kind) So the next Degree was of Brethren and Sisters, &c.

18. The Pretorian Law did also emendat this, and first brought in the Fa∣thers, with the Brothers and SistersGerman, or of both Bloods: And thereafter

the Tertullian Senatus-consult, failling the Fathers, brought in the Mother with the Sisters in their share, but not with the Brothers German, who if there were no Sisters German, excluded their Mothers totally, and, if for example there were a Brother German, and a Sister German, the Father being dead, the Brother had the half, and the Sisters half, was devided equally betwixt her and her Mother, and so the Mother is preferred to the Fathers Father, and to the Defuncts Brethren, and Sisters of one blood. Failling those of this de∣gree, the Brothers, and Sisters by the Fathers side, and these failling the nearest Degree of Agnats, in which the paritie of reason inferreth, that as in Brothers and Sisters, so in other Collateralls, these of both blood make a nearer Degree, then these of one blood. Failling all these, the Pretorian Law ad∣mitts Spouses to be Heirs, each to other, the Husband to the Wife, and the Wife to the Husband, and last, the Fisk takes place as last Heir.

19. But the. Emperor Justinian, by the Novel Constitution, 118. cap. 4. Took off all de∣stinction of Agnats, and Cognats, and brought in the Mother, equally with the Father: with what reason or approbation, we have touched before.

This is the sum of Succession, by the Roman Law, wherein there is no 〈◊◊◊〉〈◊◊◊〉, oveables, or Immoveables, and which takes up no small part of the bodie of the Law, and writings of the Lawyers; wherein to insist particu∣larlie, would raise a great bulk, unnecessar for our purpose: Whereunto, we conceive this Summarie may suffice. But while the Roman Empire, and Laws were trampled down, by the Northern Nations, the Feudal Law arose, and doth yet continue with the Civil Law of the Romans, and other Na∣tions, by which there is a great distinction introduced, in the Succession in Moveables, and in Lands, or Immoveables; which are now of a feudal nature: We shall therefore go on to the Common Feudal Customes.

20. The Feudal Customs are locall, and it is hard to find a common rule therein, for Succession, which is variable, according to the diversity of place only, if we call to mind what was formerly said, Title, Infeftments of the Distinction of Ancient and Proper Fees and of Declining, and Improper Fees: The nature of Proper Fees, wil hold forth the matter of succession therein for a Proper Fee being freely granted by the Superior to his Vassall for Military ser∣vice, the Vassalls person being chosen by the Superior, and a speciall trust re∣posed in him, and the like hope of his Issue; Patrene sequitur sua proles: It was at first so simplie done, that the entering of the Vassall in Possession, in 〈◊〉〈◊〉 of his Peers, was a sufficient Constitution of his Right, and the Investiture signified, then not so much the Act constituting, as the Write evidencing the Fee, in the which case from the nature of the right, it is consequent, first that none should succeed in the Fee, but such as were fit for the Militarie Services, and so Women, and their Issue were utterlie excluded; and all the Males Suc∣ceeded equally. 2. In Proper Fees, none could Succeed but the Lawful Issue of the first Vassall, whose Person and Issue was specially chosen, among which, first the Male Issue of the Vassall who dyed last infeft, according to their near∣ness, do succeed with the right of Representation, and so not per capita, but per 〈◊〉〈◊〉; next unto the Descendents among the Collateralls, Brothers and their Male Issue: and among these, the Brothers German, and their Issue, exclude the Brothers by one blood; and after Brothers, Father Brothers and their Male Issue; And so other Agnats of the last deceased being, alwayes of the Male Issue of the first Vassall, which being extinct the Fee ceaseth, and return∣eth

to the Superior not as the Vassalls, but by vertue of that Directum Dominium, which still remained in the Superior, In this course of Feudall Suc∣cession, there could be no place to the Vassalls Father, or other Ascendents, be∣cause if the Fee were a new Fee, or Conquest by the Son, his Father nor his Bre∣thren could not Succeed, as not being of the Issue of the first Vassall: and if it were an old Fee, not purchased by the Son, but whereunto he did succeed, it doth necessarly presuppose the Death of the Father, and other Ascendents, to whom the Son could not be Heir, nor succeed, till they were Dead.

But when by the course of time, Fees declined from the proper nature of Ancient Fees, and the Investiture did express the Tenor, and speciall nature thereof, the Tenor of the Investiture became the first rule of Succession in such Fees, and came in place of the Testament or Will of the Defunct; for seing the Vassall could not alter the Succession, without consent of the Superior, he could not effectually Test thereupon.

21. In the next place, what is not the Express Will of the Vassall, and Superior by the Tenor of the Investiture, is regulate by their Conjectured Will, from the nature of the Fee, and Propinquity of Blood: So if the Fee be Originally granted to a Woman, her Issue 〈◊〉〈◊〉 succeed, as well as the Male: or if the Redden∣do be not Militarie Service, but Money, Grain, or Services competent to a Woman, or Manual Services, wherein there is no choise of Persons, as Tilling, &c. And so generallie Fees holden Blench or Feu: In all these Woman may Succeed, because they are not excluded by the Nature of the Service. 2. If the Fee be Granted to Heirs whatsomever, not only doth the Issue of the first Vassall, but all other his Lawfull Heirs, or the Lawfull Heirs of the last Deceassing, Vassall, whether of the Issue of the first Vassall, or not, do succeed: And now Fees being ordinarily acquired by Sale, Excambion, or the like Onerous Title, Feuda ad instar 〈◊〉〈◊〉 sunt reducta; Heirs whatsomever are com∣monly exprest, and if they were not, they would be understood, for that which is Ordinar is Presumed.

22. But now Custome hath altered the Course of Feudall Succession, and given the Prerogative of Primogeniture, to the eldest Male of the nearest De∣gree to the Defunct Vassall; who excludes not only the Females of that De∣gree, but the Males also, and their Issue; not only among us, but in England, France and most other Nations, and therefore before we descend to our own Customes, it will be fit to consider the Justice, and Expediency of this common Custome in Feudall Succession.

The Lawfulness of Primogeniture, will be easily evinced from what hath been said already upon Succession, wherein the will of the Proprietar is the Rule even in Equity: and though he be Naturally oblidged to provide for his own, that Personal Obligation reatcheth him, but not the Inheritance, nor doth it Oblidge him to make these to Succeed, but to give them Competent Provisions, and therefore the Judicial Law which is the Positive Law of God; evidenceth sufficiently, the Lawfulness, and in some Cases the Expedien∣cy of altering the Natural Course of Succession, and therefore not only the Male Issue, is thereby preferred to the Female; All the Females are utterly excluded, but only Daughters, that the Inheritance may remain within the Tribe, and the Preference of Males, is because Femoles are less fitted for

Management of Lands, and therefore are to have a Portion, which the Judi∣ciall Law calleth the Dowry of Virgins.

The Expediency of Primogeniture, is partly Publick, and partly Private: The Publick Expediency, is that the Estate of Great Familyes, remaining in∣tire and undivided; They with their Vassals and followers may be able to defend their Country, especially against Sudden invasions, for with us in France Polland, and many other Places, the Great Families are the Bullwarks of their Countrey: Having 〈◊〉〈◊〉 to Maintain them selves, and their Followers, for some time without Standing Armies, Constant Pay, and Subsidies.

The Private Expediency, is for the Preservation of the Memorie, and Dig∣nitie of Families, which by frequent Division of the Inheritance, would be∣come despicable, or forgotten. Primogeniture taketh Place in Germanie, and France, in proper Fees like unto Our Ward-holdings, but not in Allodialls and Lands holden Freely, or for Cane or Rent, Gudelinus, de Jure novissimo, lib. 2: cap. 13. relateth, that in many of the German and French Provinces; the Male gets two third parts, and the Females one, in the other Provinces the Children of the first Marriage, succeed in all the Lands the Parents had, during that Marriage, and so in order, the Children of after Marriages; And in other Provinces and Cities, the Youngest Son Succeedeth in all, Exclud∣ing the rest, and Generally, Bastards are not admitted, even to the Successi∣on of their Mothers, and in England, though Primogeniture, have the Prero∣gative by the Common Law, yet it hath an Exception of the Custom of Kent, where Primogeniture hath no Prerogative; And therefore that Custom is call∣ed the Gaball kind of Kent, which is as much as to give to all the kind.

The Customs of England, and Germany, are contrary in this; That in Germany, Parents come in the next place after Descendents, and exclude Brothers, and Sisters, and all other Collateralls; but in England, Parents do never Succeed; so if the Defunct have no Issue, Brothers nor Sisters, nor their Issue, the Fathers Brother Succeeds, and excluds the Father, though his Rela∣tion be by the Father, and much further distant then the Father: And it sometimes falls out, that the Uncle Succeeding, dying without Issue, the Fa∣ther Succeeds his Brother, and so Accidentally, and Mediatly to his own Son.

23. To return to our Customs in Succession, in respect of the Matter, it is divided in two Branches, the one is of Moveables, the other of Immoveables, which do as much differ, astheCustomes of diverseNations; The Successor in Im∣moveables doth only retain the Name of Heir, and therefore Immoveables are called Heritable Rights, and that part of the Moveables, which belongs to the Heir, is called Heirship-moveable.

The Successor in Moveables, from the Office of executing the Defuncts Will, express, or presumed, is called Executor.

We shall here Summarily, at one view, set forth the whole matter of Suc∣cession with us, which we shall more fully, and distinctly follow, in the ensuing Titles.

Heirs in Law are called Universal Successors, quia succedunt in universum

jus, quod Defunctus habuit, they do wholly represent the Defunct, and are as one Person with him, and so they do both Succeed to him active, in all the Rights belonging to him, and passive, in all the Obligations and Debts due by him; and when they do not orderly enter, they become Successors passive, lyable to the Defuncts Debt, but not Heirs active, having power to claim his Right, till they be entered according to Law: Other Successors are called singular Successors, as Assigneys, Purchasers, but Heirs only are universal Successors: And now, when Heirs are of divers kinds, as some in Moveables, some in Lands, and other Heritable Rights, and of these ac cording to the Investiture, some succeed to Lands provided to Heirs of Line, some to Lands provided to Heirs Male, some to Lands otherways Tailzied, in all which some Heirs Succeed alone, and in solidum, some Succeed in parte & pro rata, yet all may be said to Succeed in universum jus quod De∣functus habuit, by universum jus, the whole Right, not simply, & in solidunt, but the whole Rights of such a kind, either in solidum, or at least pro rata parte, as he who Succeeds in a half, or third part of all the Defuncts Rights active & passive, Succeedeth in universa & singula jura, in all and every right, thought not in totum & solidum, the whole or every part of every Right.

As to Moveables, we shall not repeat, what hath been said, Title Real Rights, of the distinction of Heritable, and Moveable Rights, whether Goods, or Moveable Debts; but shall only hold forth, what becometh of Moveable Rights, after the Owners decease. And first, if the Defunct be Married, there was thereby acommunion of Goods, betwixt the Defunct and the other Spouse, which being disolved by Death, the surviver may withdraw their share, which share is estimate by the condition of the Fa∣milie at that time; for if in the Family there were a Husband, a Wife and Children, not forisfamiliat, the Wife her share is the third; but if there were no Children unforisfamiliat, the Wifes share is the half, which is not properly a Succession but a Division.

24. The first degree of Succession, in Moveables with us, is by the will of the Defunct, by his Testament, or Codicil, whereby the Defunct may name Executors, and dispose of his Moveables, either in part by particular Legacies, or in whole, by an universal Legacie, whereby, in effect the universal Legatar is institute Heir in the Moveables, and if the Executor nominat, be not also universal Legatar, he hath but one office, and is not Heir for himself, but in name, and to the behove of the Legatar, and hath but fidei-comissum of the Moveables.

These Legacies, whether Particular or Universal, doth immediately trans∣mit the Right to the Legatars, and their Successors: The Solemnities of Testaments, or Legacies are very plain with us, but we shall leave them to the Title Executrie.

The will of the Defunct is restrained with us, in three cases, the First is, Bastards cannot at all Test, or leave Legacies, unless they be Legittimat or have power from the King of making Testament, or have lawful Children. 2. A Father is bound up in respect of his Children in his Family, which are not forisfamiliat, and provided for, these have necessarily their Portion Na∣tural, and Bairns part of Gear, wherefrom their Father cannot exclude 〈◊〉〈◊〉 by 〈◊〉〈◊〉 or otherways, as by Donations, in contemplation of 〈1 line〉〈1 line〉

tion to a Moveable Band granted on Death-bed, was found null, as to the relict, and Bairns part, Spots. Assignations, Margaret Pyrie contra Ramsay. Yea, it was found, that the Gift of Money by the Defunct, out of his own hand, on Death-bed was null as to them. ibid, Mr. Andrew Moncrieff con∣tra Mr. Archibald Moncrieff. The like of an Assignation, to a confident Per∣son, to the behove of the Defuncts Bairns, which was found not to prejudge the Relicts third, Durie, July, 10. 1628. Cant contra Edgar. And there∣fore, a Father hath only power to dispose upon such a part of his Goods, which are thence called Deads part, which if he have a Relict, and Bairns in the Family, the Bairns part is the third, the Relicts part is also a third, and so the Defuncts part is only a third, but if there be no Relict, then the Bairns part is the half, and the Deads part is the other half; But if there be nei∣ther Wife nor Bairns, the Defunct may dispose of the whole, as Persons never married, or Wives upon whom there is no Restriction, though they have Husband or Children, for they may dispose of their share of the Hus∣bands moveables, or if they acquired, or succeed to any moveables, in Vidui∣ty they may iniurley Dispose thereof, though they have Children.

If his Legacies exceed his own part, then they abate proportionally, un∣les there be a preference granted by the Testator, or a priviledge, whereof I know none with us, for even a Legacie, ob pias causas, viz. A mortifica∣tion to a Kirk, was found to have no priviledge, but it, and other Legacies suffered proportional deduction, seing they exceeded Deads part, Durie, July 6. 1630. Doctor Monro contra Scots Executors: The reason of this Restriction is, that Natural Obliegment for provision of Children, of which before, it is extended only to the immediate Children, and not to Grand-children, neither doth it Restrict the Mother, but only the Father.

3. The third Restriction of the Defuncts will, is in favours of their Heirs of Line, for Heirs having the sole interest in Heritable Rights, are by our custome justly excluded, from coming in with other Children, in moveables, except that which is called Heirship-moveable, which is the best of every kind of moveable, wherein the Defuncts will cannot prejudge the Heir.

The second member os Succession in moveables is, from the Intestat; So that failing the Defuncts will, with the Restrictions aforesaid, the nearest of Kin have interest, both in the Defuncts moveables, and office of Executrie, and though they claim not the office, yet have they 〈◊〉〈◊〉 Right to the Goods, leaving a third of Deads part to the Executors, 〈◊〉〈◊〉 administration of the office.

These nearest of Kin, take place all in 〈◊〉〈◊〉 all the nearest degree, Male or Female, come in equally, and there is no Right of Representation in moveables. The first Degree is Children, Male or Female, with whom Grand-children come not in by Right of Representation, in place of their De∣funct Parents: So Children have an interest in their Fathers Moveables, viz. their Bairns part, wherein their Father cannot prejudge them, and their interest, as nearest of Kin; Whereby they succeed to the deads part, in so far as intestat, next unto Children, are Grand-children, or any De∣scendents of the nearest degree. Next unto these, are Brethren and Sisters, wherein, Brethren and Sisters German, or by both Bloods, exclude these by one Blood. Next unto Brethren and Sisters, are there Descendents, in the nearest degree, without Representation. And last, are the nearest degree of

Agnats, Male and Female joyntly, without Representation: If there be no Descendents, or Agnats, in the case of Bastards, who can have none, or others, who happen de facto, to have no Children, or Agnats, their goods become caduciary, and are Confiscat to the King, as last Heir or by reason of Bastardry, of which before, Title Confiscation.

In the Succession of Moveables, the same Goods, or Debts, are not in all cases accompted Moveable, since the Act of Parliament 1641. cap. 32. Whereby Bands, bearing Annualrent, which before in all respects, were Heritable, by the Destination of the Annualrent, (Which, being perfected by Infeftment, is an Immoveable, and Heritable Right) are declared to fall under Executrie, and so to be Moveable. And yet by the said Statute, the Relict, and Fisk, are Excluded. The Reason exprest in the Statute, is, because the Obliegment upon the Debitor, to pay Annualrent, is, for the Profit of the Creditor; and not a Destination of Infeftment of Annualrent, in Favours of the Heir, to exclude the Bairns: And therefore such Clauses make not such Sums Heritable, as to the Bairns, and nearest of Kin: un∣lesse they bear an Obliegment to Infeft the Creditor in Land, or Annual∣rent: In which case, they are properly Heritable, and belong only to the Heir; but if not, the same belongs to the Bairns, and nearest of Kin, Excludendo Fiscum & Relictam: Whereby there 〈◊〉〈◊〉 a Different Division of Moveable Sums, falling under Executrie: One of such as were Moveable before the said Act, which, if there be a Wife and Children, are divided in three: Whereof the Bairns, is a third part, and the Deads part a third. Another in the Testament, of Bands bearing Annualrent, which if their be Bairns, is Devisible in two parts whereof the one half is the Bairns part, and the other half the Deads part, and the Relict hath no part, being Excluded. So that in case of Escheat, such Sums are not Moveable, nor fall not under Escheat.

Yet, if such Debts become Simply Moveable, by a Requisition or Charge, or by the Death of the Debitor, or Creditor, before the Term of Payment of Annualrent: Or, otherways they remain in the Ancient Condition. And the Statute doth not Exclude the Fisk and Relict. But where a Charge could not be given through the Debitor, or Creditors Death, and there was no Requisition provided, and Decreet for Payment, was not found to make the samine Meveable, as it would have been, if the Band had been He∣ritable, by a Clause of Infeftment. And that because, by a Posterior Band of Corroboration, for the same Sum, Executors were Excluded, which no Charge nor Requisition doth alter; but it is still presumed, that the De∣bitor would re-imploy the Sum, in the same way, to his Heirs, Excluding Executors. And therefore, a Process and Decreet for payment, was not found to make it Moveable, though these would make it Moveable, as well as a Requisition or Charge, if it had been Heritable, by a Clause of Infeft∣ment, July 12. 1676. Crystie contra Crystie.

It is also consequent from the said Statute, 1. That such Bands, bearing Clauses of Annualrent, may be Exhausted by the Debts, due by the De∣funct, bearing Clause of Annualrent. 2. It is Consequent, that the Exe∣cutor, will get no Relief against the Heir, of Debts, bearing Clause of An∣nualrent, without Clause of Infeftment; in so far, as there are such Debts in the Executry, but the Heir will have relief thereof, against the

Executor. 3. It followeth, that Debts, bearing Clause of Annualrent, and no Clause of Infeftment, will not Exhaust the Relicts part; Because, as she is Excluded from any Share of such Debts, due to her Husband; So she must be free of any such Debts due by him, as was found, December 23. 1668. Magaret Mckenzie contra Robertsons.

25. Succession, in Immoveable, and Heritables Rights, proceed wholly in a different manner. For Succession, in Moveables, is more near to the Course of Natural Succession, and to the Civil Law of the Romans, especi∣ally their Ancient and Midle Law; but the Sccession in Heritable Rights, ag∣greeth more to the Recent Feudal Customs, of most Nations, whereby Pri∣mogeniture is established, for the Honour and Preservation of Noble Families, and in them, for the good and safetie of their Kings and Countryes.

26. Succession, in Immoveables and Heritables, do mainly differ, First, that in Moveables, the expresse will of the Defunct, by his Testament and Legacies, and Donations, in Contemplation of Death, have the first place, but in Heritable Rights, they have no place at all; Yea, no Personal Con∣tract, or Obliegment of the Fiar, can have any effect in prejudice of his Heir, to take from him any part of the Heritage, directly or indirectly, by Legal Pursuits thereupon, if the foresaid Personal Right, or Contract was done in lecto aegretudinis upon the Fiars Death-bed: And though the same Disposi∣tion, or Contract, were made in the Fiars Health, or Liege pouste, it doth not alter the Succession, unless it be in the investiture, though, as being of it self, or having in it virtuallie, a Personal Obligation, it may by Process com∣pell the Fiar or his Heir, to denude themselves, and to obtain new Infeft∣ments, conform thereto, as if by Contract, any partie may be provided, to be the Contracters Heir, in whole, or in part; his provision doth not make that partie Heir, in any Right, whereupon Infeftment hath followed, which only properly are Heritable Rights: Neither can that partie be served Heir of provision, to the Contracter thereupon, yet the Contracter may be compelled to take his Right accordingly to himself: And these Heirs of Pro∣vision, which if he have not done, his other Heirs may be compelled to en∣ter, and to denude themselves, in favours of that partie provided to be Heir, conform to the Contract; but Dispositions, Obligations, or Contracts of any Heritable Right, on Death-bed, are null, and reduceable, in so far as may prejudge the Heir.

27. The priviledge of Heirs, not being prejudged, by their Predicessors Deeds, done on Death-bed, is, as most of our Laws, by Ancient Custom, time out of mind, and not by statute, or written Law, for, though the Books, called Regiam Majestatem, treat thereof, yet these are no part of our Law, but have been compylled by some Stranger, who hath not fully known our Law, but by mistake, hath resolved most Cases, by the Customs of other Nations, especially of England. The reason of this Custom, may be conjectured not only from the Nature of Feudal Rights not disposable by Testament, but only by investiture, but also for publick utility, because persons on Death-bed are weak, the mind being easily affected with the trouble of the bodie, and so is easie to be wrought upon by insinuations, or importunities, to do deeds contrary their Interest, and former Resolutions, Especially by the Popish Clergie, who, having, for their own corrupt ends, Forged Puragatory, and Prayers for the Dead, their power of Indulgence,

and Prayers for the Dead, their power of Indulgence and Pardon of Sins, did thereby deceive the Christian World, and obtained upon Death-bed so large Donations to their Clergie, to the prejudice of the Donators lawfull Heirs which therefore Our Ancient Custom hath wisely provided against.

28. The main Difficulty is, in what cases the Law accounteth Parties to be on Death-Bed, or when they are in Health, and Liege poustie, for these are the two opposite Terms of Law, Liege poustie or Death-bed; for clearing whereof, these Points must be considered. First whether it be ne∣cessar to Prove that the Defunct before the Deed in question, had contracted disease, or become sick, and whether it be necessar to condescend and in∣struct the speciall kind of Sickness, or that it was Morbus Sonticus, or a disease affecting the whole Bodie and Brain, or if the keeping the House, and the Parties Dying before he went abroad, be sufficient to infer Presumptive, that he had Contracted the disease whereof he Dyed, so soon as he keeped the house. 2. Whether a contrair Probation of the Parties being in health, be sufficient, in that he was of a sound Judgement, and Memorie, and kept the Ordinar time of putting off, and on his cloaths, and of eating and drinking, as when he was in health, or Writing Securityes, that require clearness and distinctness of Mind, be sufficient, or if doing his ordinar Affairs, mak∣ing Bargains, and Accoumpts, Trysting for others, or himself, playing at Cards, or other Games within Doors, giving Evidence of being Merrie, be sufficient to instruct Health, and Liedge Poustie. 3. If Sickness contracted, be pre∣sumed or proven, whether there be necessity to prove the Continuance of the Sickness till Death, or that the Defunct died of that Sickness, or if the Sickness once contracted be presumed to continue, unless Convalescence, and Recoverie of Health be proven. 4. Whether Liedge poustie, by Convale∣scence, be sufficiently proven by the Defuncts going to Kirk and Marcat freely, without help: And whether it be sufficient to go to the Marcat place, or to the Kirk, though there be no Convention, nor Congregation there; or whether it be requisite, that going to Kirk and Marcat, be when the Congregation is conveened, or in Mercat time. 5. Whether in that case Supportation being proven, it is more pregnant and preferable to the Pro∣bation of walking freely, and be what Acts Supportation is inferred; whe∣ther by helping the Defunct by his Oxter, by his Elbow, or by his Hand, be sufficient, or if helping him up Stairs, or down Stairs, to and from his Horse, or upon a Ragged way, or whether being helped by a Staffe, will inferr Supportation. 6. Whether going freely to Kirk and Marcat unsupported, may be taken off by any probation, that notwithstanding thereof the Sickness did continue, whereof the Defunct dyed. 7. Whether Convalescence and Liege poustie, may be proven by any other Acts, then going unsupported to Kirk and Mercat, or if equivalent Acts may be sufficient, and if going abroad about the House unsupported be sufficient.

Death-bed is of so great Importance with us, as reaching the Estate, and Heritage of Parties, that the Lords have been very careful for clearing and fixing the same, that it may not be under uncertain conjecture or pro∣bation, and whereas by an ordinar Act of Litiscontestation, the Pursuer might prove his reason of Death-bed, by any two Habile Witnesses, or the Defender might in the same manner prove, the going Abroad to Kirk and Mercat, or Acts equivalent in Defence, or the Persuer might prove Suppor∣tation, by way of reply, and all by any two Habile witnesses: The Lords have

taken a farr more secure sway, to allow probation to be Adduced for either Party, concerning the condition of the Defunct, as to Sickness or Health, and concerning his going abroad thereafter, and the manner thereof, whereby neither Partie hath the choise of the Witnesses, to be in a Capacity to influence them, but either Partie adducing Witnesses, there is scarce any one un∣examined, who knew any thing of the Matter, and so the Truth comes to clear and evident Light, and which probation stands in place of Litiscontesta∣tion; for albeit it bear to be before Answer to the Relevancie, and that after the probation is closed, they are permitted to resume the Debate, as to the Relevancie, as to such Points as they desire chiefly to be noticed, and wherein they do believe, that sufficient Probation is adduced; which probation is closed, and may not particularly be debated upon, how farr any point is pro∣ven, which is only proper to the Lords, to consider with closs Doors yet, no new Litiscontestation can be made, or any new Fact admitted to be proven, after the Probation, before Answer is concluded and advised, or renounced, unless the Lords, ex officio & proprio motu, for clearing of any part of the probation that remains Dubrous, require further, as they may do at the advising of any cause, even upon Litiscontestation; as was found upon Decem. 5, and 6. 1672. Clellands contra Clelland, of Falskin.

To come then to the Points proposed to be cleared, for the first Point, whe∣ther keeping the House presumeth Sickness contracted, or if Sickness must be proven, and what kind of Sickness. Albeit, the ordinar Stile of the reason of Reduction bear, thatbefore the Deed in question, the Defunct contracted the Mortall Disease, whereof he Died; yet it is not necessar to alledge or instruct, that it was Morbus sonticus, January 7. 1624. Schaw contra Gray. Neither that the Defunct was Bed-fast when the Deed was done, Feb. 1. 1622. Robertson contra Fleeming. And albeit, the Pre∣sumption of the contracting of Sickness, from his keeping ofthe House, be not alwayes sufficient alone, yet it is of great Importance, and a small probation of Sickness with it, will suffice; otherways, it were easie to keep all access from the Defunct of indifferent Persons, that might prove his Condition, and none be admitted, but Contrivers, and Concurrers in the Deed: And therefore a Deed done be a Man inclosed for the Plague, was found reduceable as done on Death-bed, as being done after the Defunct was inclosed on suspition of the Plague; and Dying before he came out, without necessity to prove he was Sick or Infected when, theDeed was done, seing there was no further ac∣cess for fuller Probation, February 23. 1665. Jack contra Pollock and Ruther∣foord. This Presumption doth withstand a far stranger opposite probation of Health, when the Defunct went not abroad as was found in the said ease, Robertson contra Fleeming. That it was not Relevant to eleid Death∣bed, that the Defunct was in Strength and Ability, to have come to Kirk and Marcat, nor that the Defunct put on his Cloaths daily, and that any Disease he had was but Lent, and not Impedimentum rebus agendis; as was found in the said case, Schaw contra Gray. Neither that the Defunct lived a year and a half after the Deed in question, and was only hindered to come abroad by a Palsie, which troubled his walking, and made him not come abroad; al∣beit he did all his Affairs within Doors, as formerly, July 1. 1637. Cranston Riddell contra Richardson. And albeit, there be remembered a case of a Dispo∣sition made be David Graham Merchant in Edinburgh for a Pious use to the 〈◊〉〈◊〉 that his having on his Cloath the Contriving and Writing the whole Disposition himself, was sufficient to eleid Death-bed and to in∣struct Health; yet the Circumstances of that case are not fully known, not

being observed by any of the Lords, and the Decision hath ever been decryed since. But in the case of the creditors of the Lord Balmerino, against the Lady Couper, for reducing of the Disposition of his Estate to her, which was Decyded June 25. 1671. It was not found Relevant to instruct Liege poustie, that after the Disposition, my Lord made Bargains and Counts, seemed to be Merry and Laughed, keeped on his Cloaths, kept the Table, came from his Chamber to the Hall, Whisled to himself, and Danced, Albeit, no particular Disease, but only Sickness was proven. And in the foresaid case, Clelland contra Clelland, Health was not found proven, albeit, soundness of Judgement and Memory was proven: And that the Defunct did not only all his own affairs, but Trysted for others, and that he lived two years and a half, after the Disposition, and was in like condition, as he had been seven year before; so that it seems, that if the contracting of Sickness be proven, no contrary pro∣bation of any Acts within doors, will be sufficient to eleid the Reason of Death-bed; By all with decisions, the second Point proposed is sufficiently cleared.

As to the third Point proposed, whether Sickness being proven once Con∣tracted, the Countinance thereof till Death must be proven. It is commonly held that if it be proven Sickness was contracted, and that Death follow∣ed, probatis extremis presumuntur media; And Sickness once being proven is pre∣sumed to continue, otherways it were scarce possible by a positive Probation to instruct the Continuance of the Sickness till Death, and this is only Presumptio juris: Laying the Burden of probation upon the Party that alledges Conva∣lescence.

The fourth Point for proving Liege poustie, either that there was no Dis∣ease, or by Convalescence, if there had been a Desease; by going freely to Kirk and Mercat unsupported, is the ordinar and unquestion∣able defence against Death-bed, upon which Law and Custom hath pitched, as the most publick, and sure evidence of Health andConvalescence: So that albeit, the going to Kirk and Mercat, were but of design to Validat theDeed, yet if the attempt, be perfectly made out, it would be sufficient; and much more will be allowed, when the going abroad is Principally to hear Sermon or for Devotion, or about affairs to the Mercat: In which case, taking the Party by the Hand, or helping him at a ragged Ground, would not inferr Supportation, there being no design of Cautiousness in the Partie, but useing his ordinar way; as if a Gentlewoman accustomed to by led be the hand, should go so led to the Kirk or Mercat: By reiterated Acts it might be suffici∣ent for inferring Health or Convalescence, but if it did appear to be upon design, she behoved to forbear the prerogatives of herQuality, and go free∣ly alone without being led, or if an old man, infirm by age, or any defect in his Legs or Feet, not arising from inward Sickness, should be helped in difficult places, in reiterated Acts in going to Kirk and Mercat: without design. And as to that qualification, whether it be sufficient to go the Kirk or Mercat Place, or at the Congregation orGathering at the Mercat, I have not observed it per∣ticularly debated or decided, but that Parties when they went to the Kirk, ordi∣narly went to the Prayers, and certainly it is the most secure way, that the going be to the Congregation, or Meeting at the Mercat, otherwayes pick't out wit∣nesses, may be Chosen to wait upon the Party to the Kirk or Mercat-place, which in many cases will be very private, and will not expose the Party to publick View.

The fifth point concerning Supportation, is the ordinary reply against go∣ing abroad, and as hath been said, it is ever to be considered, whether the Act appear to be of design or not, and that if the Acts be reiterat, and of course nothing that was ordinar for the Defunct in taking of help, when he was in unquestionable Health, will import Supportation; and therefore in the case, Pargilleis contra Pargilleis, decided Febr. 26. 1669. It having been proven that the Defunct was a very old Man, and that after the Disposition quarelled, he had severall times come to Calder, and done Affaires there: And that he went up from the Merca-place, in the Mercat time, to the place of Calder, being a Steep way, borrowed Money from the Lord Torphichen, told and receiv∣ed the same, which was found sufficient; Albeit, he was helped up Stairs, and down Stairs: and was helped to his Horse, and from his Horse, and his Man led his Bridle, and that he had a Staffe in his hand.

But when the going to Kirk and Mercat, is upon design, the least defect in the exact Performance will render it Inefectuall, and so in the case of the Disposition made by the Lord Couper, it having been evident that it was, of design to Validat the Disposition, that the next day after the Disposition, my Lord went to the Mercat at Couper, the laying hisHand upon Thomas Ogil∣bies Hand, who walked by him, and that only at someimes, and in Ragged places where he was accustomed to take any walking by him, by the Hand before: Yet seeing he put nature to the outmost reach, to manifest Health by that Act, and could not fully perform it, it was not found Sufficient; but he was found to be Supported, and in the case, Clellands contra Clelland of Faskin, the Defunct finding that his Disposition was quarrelld and stopped at the Exchequer: As being done in Lecto; Immediatly after he caused make a Chair, with a Fixed 〈◊〉〈◊〉 to bear his Feet, in which he was carried with Men till he came within two pair or thereby to the Kirk, and thence he walked to the Kirk, but there was no Congregation: And returned back to the Chair, and so was carried Home, and the Witnesses that were about him, being examined, whether he Walked freely, or with help, many deponed that severall Persons having walked close about him, they could not Distinctly know; and severall Witnesses having Deponed, that he Walked Freely with∣out Help, and two having Deponed that he was Helped by themselves, his so going Abroad was not found Sufficient, neither was his being carried in the Chair found equivalent, as if he had Ridden upon his Horse; because a Sick-man might have required help even upon Horse-back, and would not have been able to have Ridden Freely without Help, and yet might have been Able to sit in a Chair: In this case a lso it was found that Sup∣portation was more positively Proven; Albeit, be fewer Witnesses: The Witnesses themselves being Supporters.

As to the sixth point proposed, whether going to Kirk and Mercat un∣supported, inferreth Health, or Convalescence, presumptione juris, & de jure, So that a contrary Probation, that even then he was Sick, and so continued tiil IDeath, hath not yet been destinctly decided: Albeit, in Pargilleis case, it was not regarded, that the Witnesses deponed, that Pargilleis, when he came to the Mercat, appeared Sick, and continued Sick thereafter; Neither can any Conjectural Probation, in such case be Respected; Because Squa∣lor morbi, doth ordainarily remain, afterConvalescence, which, if it were 〈◊〉〈◊〉, would render that Defence uncertain, and conjectural; So that there can be no question, unlesse the Probation of the being then Sick, were posi∣tive,

and pregnant, as if a Person in a hot Fever, wherein there is ordinarily strength enough, should come abroad to a Mercat, the Foam, and Furie of the Fever continuing in his Face, or if the Partie did Groan, and Bemoan himself, as Sick Persons use to do.

For the last point offered to consideration, whether Convalescence, can be proven otherways, then by going un-supported to Kirk and Mercat. I have seen no decision, whereby Death-bed hath been elided, upon such equiva∣lent Acts; But on the contrare, it was found, in the Case of the Lord Sal∣ton, that his coming to a Green, near his House un-supported, and stand∣ing there, till he saw men play at Foot-ball, was not sufficient: And in Coupers case, his coming frequently with Strangers to their Horse, and some∣times going up and down Stairs un-supported, and oftimes going out, and walking in his Garden, and once to a House, a quarter of a myle off, and all un-supported, were not found equivalent, to going un∣supported to Kirk and Mercat. And in Clellands Case, his going several times to his Barn, and to some Trees, a pair from his Gate un-supported, were not found equivalent to going to Kirk and Mercat. Yet it cannot be doubt∣ed, but there may be Acts equivalent: As if any Person should go a far Journey, but the equivalence must not stand in this, that the Defunct did Acts, requiring as much strengh, as going to Kirk and Mercat. In respect of this Difference, that going to Kirk and Mercat, exposes the Partie to pu∣blick view: Whereas other private Acts about his House, may be proven by a few Persons, prompted for that purpose: Which probation cannot be ballanced with any other; for clearing, that there was support, or help, as in the Case of going to Kirk or Mercat, or going a long Journey, where they may be had many un-prepossessed Witnesses.

Death-bed was not found elided, by ryding on Horse-back, a Journey, of about sixteen myles, Seing the party had a man, who rode behind him, and for some part of the way, was tyed to the man, which was found to be Sup∣portation. Nor was it respected, that long before his Sicknesse, he had in his Testament left the same things in Legacie: And therefore was not prevail∣led upon, with Importunity; Seing his purpose might have altered, after that Testament, December 11. 1677. William Lockhart contra Cromuel Lock∣hart of Lie.

29. As to the extent ofDeath-bed, it doth not only annul Dispositions ofLands, but Assignations to Heritable Bands, Feb. 24. 1624. Donaldson contra Donaldson. Or to a Band, Moveable in it self, becoming Heritable, by a Posterior obliegment, to imploy it for Annualrent, Spots, Juramentum calumniae, Margaret Arthur contra James Watson. Yea, it will annull any Band, though Moveable, in so far, as thereupon the Heritage may be Appryzed, or Ad∣judged, Jan. 7. 1624. Schaw contra Gray. But an Heritable Sum being payed to the Defunct, on Death-bed, his discharge thereof was not Reduc∣ed, ex capite lecti, though the money was instantly given away, after it was received, which was found valid, as a Legacie, out of the Deads part, March 15. 1634. Margaret Broun contra Thomson; but such Deeds on Death∣bed, will not prejudge the Relict, or Bairns part, but is null as to them, as well as to the Heir; As hath been now shown.

Death-bed was extended aganist Bands, though granted by a Father to a Son, having no other Provision, which were not sustained, though ossered to be restricted to a competent Portion, due Naturally by Parents, to Chil∣dren, July 1. 1637. Cranston Riddel contra Richardson; Yea, Death∣bed was found relevant, to Reduce a Disposition, in Favours of the Disponers only Daughter, in prejudice of the Brother, and Heir Male: Though the Disposition contained a power, to alter the Tailzie, or dispone at any time in his Life, but bore not etiam in articulo mortis, Feb. 25. 1663. Adam Hepburn of Humbie contra Hellen Hepburn. But where the Disposition was neither to an Heir Male, nor of Line; That clause was sufficient, to 〈◊〉〈◊〉 the Disponer, on these Terms, to burden, though it mentioned not Death∣bed, or in articulo mortis, June 22. 1670. Douglas of 〈◊〉〈◊〉 contra Douglas. And Death-bed was not sustained, to Reduce a Disposition, by a Father to his Son; Seing the Father reserved such a Sum, to be at his disposal in his Disposition to his appearand Heir, though it mentioned not, at any time in his Life, June 28. 1662. George Seaton of Barns contra Charles Seaton. And now, since the Lords have frequently decerned Aliment to Bairns, against the Fathers Heirs, having competent Estates, it is like the Lords will allow, all provisions on Death-bed, in so far as they may be competentAliments.

Holograph writs without Witnesses, prove not their own dates to have been Prior to the Subseribers Death-bed, and therefore, they are presumed to be on Death-bed, withoutwhich, that priviledge would be evacuat; it be∣ing as easie to induce a Sick Person to Antidate a writ, as to Prejudge his Heir: But if it be proven by Witnesses, that the writ was seen, and deli∣vered, before the granter contracted the Sickness, whereof he died; Or if it was Subscribed before his Sickness, though not delivered; if it was in fa∣vours of his Children, or had a Clause dispensing with delivery, or did re∣serve his Liferent: The presumption to have been done on Death-bed, will be thereby elided. But a Disposition to Neices, having been proven, to be Subscribed, before the Subscribers Sickness; but blank in the Name, was re∣duced, as upon Death-bed, because the name was not filled up: 〈◊〉〈◊〉 the Writter did depone, that it was delivered to him to fill it up, with the Neices name, seing he filled it not up, till the granters Sicknesse, July 22. 1678. Birnies contra Polmais and Brouns. But Death-bed, was not found to hinder the recalling of a Disposition, made by a Grand-father to his Oye, and de∣livered to a third Party in Leige poustie; if it should appear, that the delivery was not Simply, to the behove of the Oye, whereby it became Irrevocable; but Conditionally, that the Disponer might recal it; for eviden ce whereof, it was proven, by that third Parties Oath, That the Defunct, on Death-bed, called for it, and he delivered it; and that the Defunct, on Death-bed, de∣livered two Blanks, for dividing the Right, in the first Disposition, which he delivered, with his said first Disposition, to a Nottar: And ordered the filling up of the one half to the Heir, the other half to a second Son, but for further clearing the Partie, to whom the first Disposition was first delive∣red, was appointed to be examined, what the Defunct exprest, when he de∣livered the first Disposition to him, Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter, the third Partie not being found to be examined, The Lords found, that there being nothing proven, exprest at the delivery, The recalling, and the re-delivery did import, that the delivery was not Simple, to the behove of the Oye, making it Irrevocable; But that it was

Conditional, to be delivered to the Oye, if the Disponer did not recall it, and that his recalling of it for a special effect, to divide the same betwixt his Heir and the second Son, was effectual, both against his Oye, to whom he first Disponed; and as effectual against his Heir, as to the one half, albeit the Revocation was onDeath-bed: Seing thereby, the Heir had no prejudice, but benefit, being formerly Excluded, by the Disposition to the Oye, deliver∣ed in Liege Poustie, January 25. 1677. inter eosdem.

30. But onlyFree deeds onDeath-bed, are thusReduceable, for if there were an equivalent Cause Onerous, which was truly Imploy'd upon the Defunct, or might affect the Heir, it is not to the Heirs Prejudice, and so not Re∣duceable; thus the Reason of Death-bed was eleided, because the Band quarel∣ed, was offered to be proven for Furnishing, truly Delivered to the Defunct, July 13. 1632. Pollock contra Fairholme.

The like of a Discharge, granted by a Bastard, after he was Infected of the Plague, against the Donatar of the Bastardry, November 23. 1609. Marr contra Auchinleck. In all these Witnesses are Sustained to prove the Cause Onerous in the write. And likewise a Band granted on Death-bed, being proven for a Cause Onerous in part, viz. Droggs, and Service to the Defunct on his Death-bed, was sustained pro tanto, and Reduced for the rest, January 7. 1624. Schaw contra Gray. But a Liferent grant∣ed to a Wife on Death-bed, and a Liferent-Tack of Teinds, of the Lands Liferented, were not reduced, Hope Teinds Lady Dunlap contra Laird Dunlap. The reason whereof is observed to have been, because the Husband before Sickness, was bound to Infeft his Wife in Lands, or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem.

31. AsDeeds on Death-bed, prejudge not the Heir: So deeds in Testa∣ments, though done in Leige Poustie, have no more Effect, then on Death-bed And it is not habilis modus, by Testament to dispone any Heritable Right, December 14. 1664. Colvin contra Colvin: Death-bed is not competent by Exception, but by Reduction, January 11. 1666. Grizell Seatown contra Dundas; But in Declaratorie or Petitory Actions, as Recognition, it is receivable by Exception, July 20. 1669. Barcley contra Barcley; Or in a Reduction it is competent by Exception or Reply, February 3. 1672. Barbara Hoom contra Bryson.

A third difference is, that Successors in Moveables, or Executors are not lyable Passive, for the Defuncts Debts, in Solidum, but Heirs are; Though they farr exceed the Value of the Inheritance, without the benefit of an Inventar. And though Craigs Opinion is, that Heirs may Renounce, even after their Entry, if the Heritage appear overburdened. The course of De∣cision since his time hath cleared the Contrary.

32. Because Heirs entring cannot Renounce, there is Annus deliberandi, allowed to them by Law, in which they may abstain from entering, and Immixing themselves with the Heritage, and then they are not conveenable for the Defuncts debt, upon charges to enter Heir or otherwise, but if they enter, or meddle sooner, they are lyable: This Annus deliberandi, is or∣dinarily accounted, a year from the Defuncts Death, which was so account∣ed though during a great part thereof, the Heir remained unborn; February 7. 1610. Knows contra Menzies. But the Contrary was found thereafter, that the year was accounted from the Birth of the Posthumus Heir

that the benefit of Deliberation, might be profitable to his Tutor in his Name, Spots, Heirs, Livingstown contra Fullertown; If the Day of Compearance be after the Charge to enter Heir, and after the year, it will be Susrained, June 27. 1667. Dewar contra Paterson: In which case it was found, that even Actions Real, as Reductions, 〈◊〉〈◊〉, &c. which require no Charge to enter Heir, are not Competent within the year of Deliberation, because in these the Heir cannot Defend, without the Hazard of behaving as Heir.

33. Succession in Heritable Rights in Scotland, are either by the will of the Fiar, or by Law, Provistone Hominis or Legis. Heirs by the 〈◊〉〈◊〉 of Law, are called Heirs of Line, as befalling by the Line of Succession ap∣pointed, and known in Law, all other Heirs do Cross or Cut that Line: and therefore are called Heirs of Tailzie, from the French word 〈◊〉〈◊〉, to Cut; whence Craig conceiveth this Tailzied Succession, hath been first de∣nominat amongst the French and Normands, and thence being brought into England, by the Normand Conquest, both in Custom and Name, hath been Derived to Us; Yet it is liker to have come to us Immediatly from France, with which we keeped greater Intercourse, then with England of Old; And our Tailzies, at least to Heirs Male, are Ancienter than the English, which begun but from the Famous Law, called the Second Statute of Westminster, in the Reign of Edward the First, of that Name of the Normand Line.

Heirs of Tailzie are also called Heirs of Provision, which terms are Equi∣parat, both comprehending all Heirs, which are not according to the Line or Course of Law; and among others, Heirs Male, and Heirs of Marriage: Yet our Stile doth ordinarily distinguish them so, that where there is no alteration from the Lineall Heirs Male, and where there are severall Substitutions of certain Persons, or Lines, failling others by the tenor of the Infeftment, they are Specially called Heirs of Tailzie; but when there is an Alteration of the Lineal Succession, yet not Simply to Heirs Male, nor to divers Members of Tailzie they retain the common Name of Heirs, of Provision, as is most ordinar by Contracts of Marriage, providing Lands to the Heirs of the Marriage, where∣by the Heirs Lawfully Procreat betwixt the Married Persons whether Male or Female do succeed; So that Daughters of that Marriage will exclude Sons of another Marriage, or Heirs of the Bodie of the Members of the Tailzie, whereby there Collateralls, or Ascendants are excluded: And in proper Tailzies, there are always divers Lines and Persons, Male and Female, substi∣tute as Members of the Tailzie, as when Infeftment beareth Lands to be granted to the Fiar, and to the Heirs of his Body, or to the Heirs Male of his Body, or to his Heirs of such a Marriage, which Failling to such an other Person Named, and to the Heirs of his Body, or to the Heirs Male of his Body, &c. And so to a Third or Fourth, which all Failling to the first Fiar, and his Heirs whatsomever; or to return to the Superior, or to any other Person, and to their Heirs whatsomever: And where such Persons and Lines are not Substitute, it is not properly called a Tailzie, but if it be simply to Heirs Male, it is so specially Denominate; all other Heirs which are not Heirs of Line, or Heirs whatsomever, retain the Name of Heirs of Provision, the Chief whereof, are Heirs of a Marriage, which Failling the Husbands, or Wifes Heirs whatsomever, in which there is but one Blood or Line, and not divers Persons, and different Lines Substitute in these Tailzies, the Person No∣minat may Succeed, and be served Heir of Tailzie, though otherwise Inca∣pable

of Succession as Bastards, as hath been shown in the former Title; But the Persons Nominate are never the Immediat and fast Heirs in Lands, but always the Fiars Heirs of his Body, which Failling, the Persons Nominate; for if the Heritage should be granted for example to John, and after his De∣cease to William and his Heirs: John would be thereby Naked Liferenter, and William Fiar, who could not be served as Heir to John: But if it were Gran∣ted to John, and the Heirs of his Body, which failing, to William; These fail∣ing, William would be served Heir of Tailzie to John: But this holds not in Bands, or Securityes for Sums of Money, for Parents do srequently take thier Bands and Infeftments for Security thereof, to themselves, they being on Life, and after their Decease, to such Children Nominat, yet the Parents are Fiars, and the Children are but Heirs Substitute. So then, all Succession with Us, is either of Heirs of Line, Male, Tailzie or Provision, Heirs of Line are also called Heirs General, so also are Heirs Male, and of Conquest, and these may be served Heirs by a generall Service: But other Heirs of Tailzie or Provision, by Investiture, cannot be served Heirs, but by a Speciall Service, serving them to such Particulars, whereunto they Succeed, by Infeftment or Provision; Heirs of Line are also Called Heirs whatsomever, because they are absolute without Limitation, and in all cases where Heirs whatsomever, is not specially altered by the Infeftment rights follow the Lineall Succession, as among Heirs Male, the same course taketh Preference, except that Female Heirs are excluded, as that first Descendents, then Brothers, &c. do Suc∣ceed, and Amongst Heirs of Marriages, the Eldest Son doth exclude the rest, and so in the Members of Tailzies.

We shall not need here to debate the Lawfulness, or Expediency of con∣stituting Heirs Male, or of Tailzie, or of Provision; having now cleared, that the first Ground and Rule in Equity, is the Will of the Propriatar, though he be Personally Oblieged to provide Competently for his own, especially those of his Family; And therefore, though severall of our KINGS, in their generall Revocations, have Revocked Tailzies, it can inferr no more, but a Scruple in them, and a Preserving of their Power, against the course of Pre∣scription: But doth not infringe such Rights being Lawful in themselves. The Expediency of Tailzies, is the same with Primo. geniture, to preserve the memory, and Dignitie of Families: But as Primo-geniture, for that end, excludeth Females of nearest Degree, Heirs Male excludeth them Simply and Heirs of Tailzie, have had their Rise from Dissatisfaction, with some of the Fiars Race, or preference of them, otherwayes then by the Propinqui∣ty of Blood; Some have also Tailzied their Lands, so as by Infeftments, to Introduce a Primo-geniture among Familyes, as the Law hath done among Males; as if the Land were granted to the Fiar, and the Heirs Male of his Bodie, which Failling, to the Eldest Heir Female of the Bodie, without di∣vision, and their Heirs carrying the Arms, and Name of the Family: The intent of these Heirs of Provision, is also to preserve the Unity and memorie of the Family.

To come now to the Heirs of Line, the Law hath ordred them thus; first the Eldest lawfull Son, and his Descendents in order, by Right of Primo-gene∣ture, excludeth all other Descendents, Male or Female; Failling Sons, the Daughters, and their Descendents do all succeed Equally, except in Rights Indivisible, which fall to the Eldest; Failling Desendents, the next Degree is of the next immediat Brother German, and his Descendents, and among Middle Bre∣thern, the immediat Elder Brother succeedeth in Conquest, whereunto the De∣funct

did not, nor could not succeed as Heir, but in all others, the immedi∣ate Younger Brother succeedeth, and therefore is called the Heir of Line; and the other the Heir of Conquest: If the Fiar be a Woman, her Brother German excludeth Sisters German, and of her Brothers, the immediate Elder Brother succeedeth inConquest, and the immediat Younger in heritage; Failing, Brothers German, Sisters German, and their Descendents exclude both Brethren and Sisters, by the Fathers side only, June ult. 1629. Mr. Robert Cuningham contra Multray. Failling Brothers, or Sisters German, Brothers by the Fathers side, succeed to the Defunct, whether Male or Female, the immediat Elder in Conquest, and the immediat Younger in Heritage. Failing all Brothers and Sisters, the Father or other Masculine Ascendent of his Line, succeed to the Defunct, whether Male or Female, and exclude the Brothers, or Sisters of that Ascendent, as a Grand-grandfather excludes his Brethren: Fa∣thers Brethren to the Defunct: Failling Ascendents, the Fathers Brothers, and Fa∣thers Sisters, and their Descendents, succeed in all points as Brothers and Sisters, the double Blood excluding the single Blood, and the immediat Elder Brother succeeding in Conquest, and the immediat Younger in heritage, and all Failling the Grandfather; and Failling him, his Brothers and Sisters the same way: And so upward, till there can be any Propinquity of Blood proven, which all Failling, the King taketh place as Last Heir.

34. In this Line of Succession, observe, First, that there is no place for Adopted Children, or their Issue, but only for the Naturall Issue of the Vassal; Which cannot be changed by a Voluntar Act of Adoption, without consent of the Superior, in the Investiture, neither is Adoption in use with us in any case. 2. These Naturall Heirs, must also be Lawfull, whereby Bastards are excluded; who are such, appeareth by the former Title. 3. There is no place for Cognats, as to the Mother, Grandmother, or other Feminine Ascendent, or these of their side, but only to Agnats conjoined by the Father, Grandfather, &c. Which holdeth, even though the heritage descended from the Mother, or these of her side, for in the service of Heirs, the nearest lawfull Heirs are only inquired, and retoured either by the Lineall Succession aforesaid, or by express Tailzie, or provision in the Infeft∣ment, without respect from whence the Inheritance flowed; for which we have no Satute nor Custom; But in England, it is otherwayes for Paterna paternis, and Materna Maternis takes place, but with us the contrare was found in the case of John Gilbert, as Craig observeth, Lib. 2. Dieg 17. And he there re∣lateth that many afterward changed their opinion therein, and though there be equity in it, yet no Law nor Practique since, hath favoured the Maternal Line, but the Father was found Heir to his Son, even in the Lands where the Son was Infeft, as Heir to his Mother, and did exclude his Brother Uterin, by that Mother, February 5. 1663. Lenox contra Lintoun. 4. In all this Line of Succession, there is place for Representation of Descendents, in place of their Defunct Parents: So that Females of a further degree, by the Right ofrepre∣sentation, exclude Males of a nearer degree, as the eldest Sons Daughter will be preferred in theGrandfathers Inheritance, to his other Sons in private Rights, though that be contraverse, by the more comon Feudall Customs, as is largely and learnedly dispute by Tiraquellus.

35. In this Lineall Succession, the Father, Grandfather, or other Ascendents of the Paternall Line, succeed in heritable Right, next unto Brothers and Sisters, and before all other Collateralls, or Agnats. We have shown before, why, there is no mention of Ascendents in the Jewish Succession, because such a case could hardly occurr among them. Craig, Lib. 2. Deig. 13. affirmeth that it was doubtfull in his time, whether Ascendants could succeed in heritable Rights, and that he heard the opinion of some learned men in the contrary, and that he had not found the Lords decide in it, and that it is contrare to the Feudal Law, and also to his own opinion; yet he brings both evident reason and example in the contrary, the reason is, that no Inquest can justly Retoure, that the Father Brother, is nearer then the Father: He bringeth also the Example of the Earl of Angus, served Heir in the Earldom of Angus, to his ownSon, whom he had infeft therein: And the Lord Colvill in likemanner, having infeft his Son in all his estate, though sum affirmed that this was by provision, in the infeftment; yet that the Service was, is sure, but that provisi∣on is uncertain, and though some also were doubtful, whether the Earl of An∣gus was served, and infeft as Heir to that same Son, which well inferreth that the Father was not infeft as Heir to his Son, but not that he was not served Heir to him therein, for he might have been served, and not infeft; Whereby, the service as incompleat, became void, and the next Earl behoved to serve of new to the Son, who died last vest, and seased as of Fee: The Custom. and common opinion since, is for the Ascendants, and so the Earl of Roxburgh was served as Heir Male to his Son; The Lord Ker, and many o∣thers which ought to be the more favoured, as more conform to equity, and the Law of nature, which in Dubio ought to take place, where there is no Law, nor custom to the contrary, as with us there is none; Neither did I ever hear of one who attempted to exclude a father, by the Fathers Colla∣terails: And though there had been no Decision upon it, neither have there been upon many other uncontroverted Customs, especially in Succession, but the acquiescence of all Parties, having interest in matters of so great mo∣ment, is a strong Evidence of the Nationall consent by Custom: But it hath aho been so decided by the Lords, Hope, Succession, Mr. Robert Burnet contra Mauld; Yea a Son, being infeft as Heir to hisMother dying without Issue, his Brother uterin by the Mother was not found Heir to him, but his Father, February 5. 1663. Lenox contra Lintoun.

As to the alledged opposition of the Feudall Law, as hath been oft times said, it is Local; And therefore, as in England, all Ascendents are excluded, so in Germany they succeed in the next place after descendents, and are prefer∣red to Brothers and sisters, according to theNaturall course ofSuccession. The reason why Brothers and Sisters of the Defunct, are preferred to the Fa∣thers with us, may be, because such Fees do commonly proceed from the Father: And therefore by the continuance of that sameFatherly affection, are derived to the Brothers and Sisters, and because they are in more need of Provision then the Father.

TITLE XXVII. Heirs.

• 1. Appearand Heirs may pursue exhi∣bition, ad deliberandum.
• 2. They may defend their predecessors Rights and Possessions, being cal∣led, or compearing for their in∣terest; and their executors have right to the Rents of these years, they were appear and Heirs.
• 3. The Aliment of Heirs from the Do∣natars, and Life-rentars.
• 4. Heirs not entred, have the benefit of Clauses, which by Nature import, they should not be actual Heir.
• 5. Heirs have interest in all Rights granted to their Predecessors, though not mentioning Heirs, who are not exclusive of Heirs, by their Te∣nor and Nature.
• 6. Heirs have the benefit of all Rights heritable, by Destination, or hav∣ing a future Tract of time, after the Defuncts Death.
• 7. Heirs have Right to Moveable heir∣ship, or obleigment for Sums wherein Executors are excluded.
• 8. Heirs of Lyne, are heirs generally; their interest.
• 9. Hirship Moveables.
• 10. Heirs of Conquest their interest.
• 11. Heirs Portioners their Interest.
• 12. Heirs Male, Tailzie, and Provisi∣on, their interest.
• 13. All Heirs are lyable pasivè for the Defuncts debt, but not in the same way.
• 14. Heirs Portioners how far lyable.
• 15. The effects of different Provisions, or Obligations by Defuncts, in Favours of Divers heirs Porti∣oners.
• 16. Heirs not being Portioners, no sub∣stitute in Bands are lyable in soli∣dum.
• 17. The order, by which heris are ly∣able passivè, and may be discust.
• ...

• 18. Heirs of Tailzie ripresent not the Defunct, in obligations contra∣ry to the Terms of the Tailzie.
• 19. Heirs of Marriage, may quarrel their Predecessors Deeds, being meerlygratouitus in their prejudice, but not such as are onerous, or rational Deeds.
• 20. Heirs having the benefit of dis∣cussing, may propone the Exception, that all parties having interest, are not called, without instructiug the Right whereto they may suc∣ceed.
• 21. The exception of the order of dis∣cusing, is not sustained without condescending on the heritage, whereunto the anterior heir may sueceed, and what is discusing.
• 22. The order and effect of a Genral Charge to enter heir.
• 23. The order, and effect of a special charge to enter heir.
• 24. Renounciation to be heir, its order and effect.
• 25. The entrie of heirs general, and effects thereof.
• 26. The entrie of heirs upon precept of Clare Constat.
• 27. The entrie of heirs by hesp and steeple within Burgh.
• 28. Entrie of heirs by Brievcs out of the Chancellarie.
• 29. To whom these Brieves are direct∣ed.
• 30. The manner of citting the Inquist, and Proclaming the Brieve.
• 31. Exceptions competent against mem∣bers of Inquist.
• 32. The appearand heirs claim.
• 33. Exceptions against the Claim.
• 34. First head of the Brieve.
• 35. The 2. head of the Brieve.
• 36. 3. head of the Brieve.
• 37. The 4. head 〈◊〉〈◊〉 of Brieve.
• 38. The 5. head of the Brieve.
• 39. The 6. head of the Brieve.
• 40. The 7. head of the Brieve.
• 41. The Service.
• 42. The Reture.
• 43. Reduction of Retures by a great in∣quist.
• 44. Reduction thereof otherways.
• 45. Reduction of Retures how compe∣tent.
• 46. Precepts out of the Chancellarie, to Superiours to Infeft.
• 47. Suspensions of the precepts, and the reasons competent therein.
• 48. The certification of the loss of the Superiority, during the life of the Superiors disobeying.
• 49. Further reasons of Suspension of these precepts.
• 50. Whether the Persons nearest at the Defuncts decease, may be entred where a nearer is in spe.
• 51. Who are Fiars of Conjuct-fees, or Provisions substitute.
• 52. The entreast of heirs of Pro∣vision, and import of Clauses of Conquiest, in Contracts of Mar∣riage.

BY the former Title, it appeareth who are Heirs; let us now Consider what their In∣terests are by being Heirs: And that is either Active by the benefit, or Passive by the Burden whereunto they do succeed; For Heirs being successors in Universum jus quod Defunctus Habuit, they do fully represent the Defunct both in the Rights, belongiug to him, and in the Debts due by him. First, then of the Interest, common to all Heirs; And next of the interest, speciall to the severall Heirs.

1. The interest of Heirs are most properly Competent, when they are en∣tered Heirs, according to the due Course of Law, of which afterward; Yet some∣things are competent, not only to heirs entred, but to appear and Heirs, as first, they have interest to prusue Exhibition of all writs made by their Predecessors to their Wives, Children, and others in Familia, but not of writes made by them extra Familiam, December 6. 1661. Margaret Forrester, and Schaw of Sor nebeg her Spouse, Contra Tailzefere. Or to their Predecessors Simply, to the effect, they may know the condition of the heritage: And may de∣siberat whether they would Enter Heirs, or not; Seing if they do Enter, they are lyable for all the Defuncts Debts, though they farr exceed his Estate, and have no benefit of Inventary, as in moveables: And therefore they are al∣lowed to pursue for inspection of all Writes, Importing a debt of the Defunct; Yet not so as to open the Charter Chists of Strangers, who have purchased Lands from the Defunct, on pretence of the Burden, by the Warrandice; for in that case the Strangers Infeftment will exclude them, and only dispositions made to these in the Family, hinder not inspection of the Heirs whole Rights Flowing from the Defunct, or his Predecessors: But I doubt not, but all will be oblieged to produce Bands, or Personal obleigements, which might burden the appearand Heir, if he enter. As was found in the Case of Dis∣positions, and Bandsgranted by the Defunct, to Strangers, Feb. 26. 1633 Laird of Swynton contra Laird of Westnisbit. But if Infeftment had follow∣ed upon the Disposition, the Defender would not be oblieged to produce the Disposition, because the appearand Heir might, by the Registers, find his Predecessors denuded. This inspection is competent, during their Annus de∣liberandi. It was so found, in Favours of the appearand Heir, pursuing Ex∣hibition within the Year, Feb. 26. 1633. Laird of Swinton contra Laird of Westnisbit, where the Writs pursued for, were likely to be the ground of a Plea, against the Defender himself. This Exhibition, ad deliberandum, is com∣petent at any time, before the Heir enter, even after the Annus deliberandi, which is granted to appearand Heirs, that they may be free of all Actions on Chargesto enter Heir, Reductions, or Declarators during that time, if they do not enter, or behave as Heirs: But on this accompt, the appearand Heir hath no Interest to put parties to Compt and Reckon, ad deliberandum, June 22. 1671. Lessies contra Alexander Jeffray. In these Exhibitions, the Relati∣ons, or Propinquity of Blood, of the appearand Heir, passeth, without pro∣bation,

as Notorium: So, as if the Defender be absent, the Decrcet will not be null, for want of Probation of the Title. Yet a Scots man born of Pa∣rents, residing in Holland, was found to have no Interest, to pursue Exhi∣bition, as appearand Heir to his Father, till he produced an Authentick De∣claration, and Tryal, by the Magistrants in that place; that he was the eldest lawful Son of his Father, December 17. 1627. Fleming contra Broun.

2. Appearand Heirs, may defend all Rights competent to them, upon Pro∣duction of their Predicessors Infeftments, whether they be called, or com∣pear for their Interest, January 19. 1627. Laird of Rosline contra his Ten∣ents and George Fairbairn for his interest. They may also continue their Predecessors Possession, and pursue for Mails and Duties of there Lands, find∣ing Caution, in case of doubtfulnesse, to make these forth-coming to any other, having Interest, Spots Heirs, James Oliphant contra his Tenents.

Yea, the Rents of Lands, were so far found, to belong to an appear∣and Heir, That though he died un-entered, the next Heirs not entering to him, was found obleiged to pay the former appearand Heirs Aliment, in so far as he intromitted with the Rents of the Years, during which the former appearand Heir lived, December 20. 1662. Ladie Tarsapie contra Laird of Trasapie. And consequently, the Rents might be confirmed by his Execu∣tors, or arrested for his debt. The like was found of moveable heirship, where∣with the appearand Heir was intertained by his Mother, June 29. 1629. Robertson contra Dalntahoy. They may also pursue the Life-renters of their Estate, for Aliment, Feb. 12. 1635. James Hepburn contra Dam Margaret Preston and Isobel Seatoun.

3. The Aliment of Heirs, out of there Lands, being Life-rented, or in Ward, is constitute by the Act of Parliament, 1491. cap. 25. Bearing a reasonable Living to be given, to the Sustentation of the Heir, after the Quantitie of Heritage; if the said Heir have no Blensh, or Feu ferm to sustain him, as well of Ward Lands fallen in the Kings hands, as in the hands of any Barron, Spiritual or Temporal, whereby, it is clear. 1. That the Quan∣tity of the Aliment is indeterminat: And therefore is modified by the Lords, according to the Quality of the Heir, and his Estate, 2. It takes no place, if the Heir have Blensh, or Feu Lands, sufficient to sustain him; but if these be not sufficient, the same will be made up by the Life-renters and Wardatars proportionally, March 16. 1622. Heir of Milioun contra Calderwood. Yea, where the Minor had any other means, sufficient to intertain himself, as the Heir, being a Writer, and thereby able to Aliment himself, he was found to have no Aliment from his Mothers Life-rent, who brought 8000. Merks of Tocher, and had but 10. Chalders of Victual in Life-rent, July 21. 1626. Laird of Ramorny contra Law. The like, where the Heir was not Minor, but designed himself Preacher, and so having a calling, Feb. 11. 1636. Sib∣bald contra Wallace. Here the Relict was Infeft in no Land, but had an Annualrent of 400. Merks, out of Land, and the Heir was not Minor: Where∣as, the Lords thought the Act of Parliament, was not in favours of Majors, who ought to do for themselves, but all must be considered complexly, in this Decision: Some Heirs, by their Quality, not being bound to follow Cal∣lings, but the Life-rent was a mean Annualrent, no more then an Aliment to the Relict, the Pursuer Major, and having a calling: And certainly, where the Life-rent is but an Aliment, the appearand Heir must rather want then the Person provided for a cause onerous.

Though the Act mention only Ward Lands, yet it was extended to a Minor, having no Ward Lands, against a Life-renter of all his Fstate, be∣ing Houses, and Annualrent of Money, Feb. 22. 1631. Fiinnie contra Oliphant. In this case, it was not found sufficient, that the Life-renter offer∣ed to maintain the Minor, her own Child, upon her own charges, she being married to a second Husband: But the Tutor obtained modisication, with consideration of the moveable Heirship, on the contrary, where the Mother was not married, her offer of Intertainment was received, July 14. 〈◊〉〈◊〉. Alexander Noble and his Tutors contra his Mother: Neither was the modi∣fi cation excluded, because there were free Lands, at the Defuncft Death, seing they were appryzed thereafter, for the Defuncts debt, Hope de haered. White contra Caldwall. The like, the debt being great, and the Annualrent there∣of, equivalent to the rent of the Lands not Liferented, Feb. 13. 1662. An∣tonia Broun contra her Mother: But Aliment was not found due by a Father Life-renter to his Son, on this Act, but only, super Jure Naturae, July 21. 1636. Laird of Rumorney contra Law. Nor by a Grand-father to his Oye, who had disponed his Estate to his Son, reserving his Life-rent, of a part, the rest unsold by his Son, being Life-rented by his Wife, July 7. 1629. Hamilton contra his Goodsir: But where the Heirs Mother brought a great Tougher, and the Grand-father fell to a plentiful Estate by his Brother, the Heir was found to have Aliment of his Goodsir, though he disponed the Land to the Heirs Father, burdened with his Mothers Life-rent, June 27. 1662. Heir of Gairn contra Laird of Gairn. This behoved not to be from the Statute, but ex debito naturali. Aliment was found due by a Life∣renter to her daughter, the appearand Heir, though she renounced to be Heir, July 16. 1667. Hamilton contra Symonton. But, where a Father disponed to his Son a part of his Estate, reserving his Life-rent, and another to his Son, and his Wife in Conjunctfie, after his Sons Death, his appearand Heir got no part of his Aliment from his Goodsir, but only from his Mother, Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington. Aliment was found due to the Heir, by an Asigney to a Gift of Ward, without necessity to prove, that he intromitted with the Ward Lands; unlesse he had been Le∣gally excluded, which was Modified by the Lords: And it was not found suf∣ficient to intertain him in the Assignyes Family, but nothing was Modified for that time, that the Minors Mother Alimented him gratis, Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer.

4. Heirs also not entered, have the benifite of such obliegments, or provi∣sions conceived in Favours of Heirs, which by their Nature, or Meaning, re∣quire to be fulfilled before the Heirs entry. As when a Party was obleiged to imploy a Sum upon Land, and to procure himself, and his Umquhil Spouse Infeft therein, in Life-rent, and the Heirs Procreat betwixt them in Fee, the Bairn of the Marriage, who would fall Heir, was thereby found to have Right to crave his Father, to imploy the Money accordingly, though he never was, nor actually could be Heir, his Father being alive, December 16. 1628. Laird of Collington contra Granton. In this case, the Lords inclined, so to decide, but decided not; But that day, Durie observes a like case de∣cided, July 7. 1632. Young contra Young. The like was decided, Feb. 13. 1677. Alexander Frazer contra John Frazer. In which case, a Father, by his Contract of Marriage, being obleiged to imploy a certain Sum, upon security to Him and his Wife in Conjunct-fee, and to the Heirs of the Marri∣age, and likewise to take all Conquest during the Marriage, the one half to the Wife in Life-rent, and the other to the Heir of the Marriage in Fee, after

the Wifes Death. Process was sustained, at the instance of the apparent Heir of the Marriage, against his Father, who was decerned to imploy the special Sum to himself, and after his decease, to the Heir apparent of the Marriage albeit, therby, the Father would remain Fiar, and might dispone, or bur∣den the Sum so imployed, for reasonable Considerations, but not by Deeds, meerly gratuitous, to evacuat the obleigment: And if he did Deeds prejudi∣cial, he would be obleiged to purge the same, or re-imploy 〈◊〉〈◊〉: But it was not so found, as to the Conquest, before the Marriage, which might be altered during his Life, for that only could be accounted Conquest, that he had more at his Death, then at his Marriage. And so Heirs of a Marriage, in an obleigment, in case a Wife deceased, without surviving Heirs of the Marriage, these were Interpret Bairns of the Marriage, who survived their Mother, but died before their Father; and so could never be served Heir to him, January 26. 1630. Turnbul contra Colinshlie. The like, where a Fa∣ther was obleiged to Infeft himself and his Spouse in Conjunct-fee, and the Heirs procreat betwixt them, &c. The apparent Heir was found, to have interest, to pursue the Father for fulfilling thereof, and of the obleigment adjoyned, not to dispone in their prejudice, Hope de haeredibus, Hamilton contra Sil∣vertonhil. Tacks set to Heirs, require no service, but being Notour, to be the Person, who might be served Heir, they have right without service, June 9. 1675. Hoom contra Johnston of Oldwells.

5. As to the benifit of Heirs, they have Right, not only to Obleig∣ments conceived in favours of the Defunct, and his Heirs; But though there be no mention of Heirs, unlesse by the nature of the obleigment, there be a special∣lity, appropriating the same to the Person of the Defunct only, as in Com∣missions, Trusts, &c. So Heirs were found to have the benifit of a pro∣mise. made to their Predicessors, for disponing of Lands to him, acquired for his use, though it mentioned not Heirs, Feb. 22. 1610. Heir of Jean 〈◊〉〈◊〉 contra Livingston. The like of a Reversion, not mentioning Heirs, which was thought to be omitted by neglect, seing it bore not Redeemable to that Partie during his Life, as it is ordinarily adjected, when that is mean∣ed, January 9. 1662. Earl of Murray contra Laird of Grant. The like of an Annualrent, though it bore only to be payed yearly, and not perpe∣tually, or heritably, or to heirs, Feb. 2. 1667. pourie contra Dykes. And a Substitution, mentioning only a Person substitute, without mention of Heirs, was found competent to that Persons Heirs, January 7. 1670. Innis contra Innis.

6. Heirs have the benefit of heritable Rights, not only whereupon In∣feftment hath followed, or which, by Destination are heritable, or re∣quiring Infeftment to their accomplishment, as heritable Bands, bearing Clause of Infeftment, for these bearing only Clause of Annualrent, are declared Moveable, by, and since the Act of Parliament, 1641. cap. 57. Revived, Par. 1661. cap. 32. Of which, in the last Title. So also, are Reversions, Pensions, Tacks, without necessity of being entered Heir, June 17. 1671. John Boyd contra Hugh Sinclair, July 9. 1675. Hoom contra Johnston of Old∣wells. And all Rights, having a Tract or Course of time, after the Defuncts Death. In these Cases, where the Defuncts Right is Temporary, and run∣neth out by a certain Course of Time, that time runneth, whether the De∣functs Heir be entered, or do Possesse, or not, as Tacks, Pensions, or An∣nuell Prestations, during so many Years: And therefore, these require not Service, or Solemnitie; but that Person, who might be Served, may con∣tinue,

or recover the Defuncts Possession, and his Possessing makes him lyable passive, as Representing the Defunct. Neither needs there any Service of Children nominatim, substitute immediately to their Parents, but if they be Substitute in the Second place, a Service must be used to instruct, that the Heirs appointed in the first place did fail, July 21. 1676. 〈◊〉〈◊〉 of Drumel∣zier contra the Earl of Tweddel. What Rights are heritable, and what move∣able, vide Title Real Rights.

7. Heirs, have also Right to Moveable Heirships, and to all Obleigments, though the matter be in moveable Rights, if Executors be expresly secluded, otherways, if the matter be moveable, and Heirs only be exprest, but not Executors, yet Executors will not be Excluded, because Heir is a General Term, comprehending Exectors, Hope Ejection, Sr. Lewis 〈◊〉〈◊〉 con∣tra Tenents.

The special Interest of Heirs, are according to their several kinds, viz. Heirs of Line, and of Conquest, heirs Portioners, heirs Male, and heirs of Tailzie, and Provision.

8. The Interest of heirs of Line, is, that they are heirs Generally, not only, because they may be Served by a General Service, but chiefly, be∣cause they must Generally represent the Defunct. So, that what cannot be claimed by a special Title; either as being Conquest, or Specially provided, by the Tenor of the Infeftment, befalleth to the heirs of Lyne: And there∣fore, in dubious cases, what doth not appear to belong to other, Heirs appertaineth to these, in respect of whom, heirs Male, and of Tailzie, and provision, are accounted as Strangers, and may come against the Defuncts Deeds, in favours of the Heirs of Line; But the Heirs of Lyne, cannot come against such Deeds, in favours of others, because, as heirs of Line, they are reputed as one Person, with the Defunct; and so are obleiged to maintain, and fulfil his Deeds, not done on Death-bed. It was so found in the Case of an heir of Tailzie, against an heir of Line. Spots Earl of Hoom contra And as heirs of Line have generally the Benefit, so they have more effectually the Burden of the De∣functs debts, which ordinarily reach them in the first place: So that oft∣times the heirs of Line, have little or nothing free. We shall not need to be Special, what befalleth the heirs of Line; being to show particularly, what befalleth to the other heirs: For what remaineth, belongeth to the heirs of Line only. Heirships moveable belong only to heir of Line, and not to heirs of Tailzie, January 27. 1668. Collonel Montgomrie contra Stewart.

9. Heirship moveable, is the best of every kind of moveables, belonging to the Defunct, which the heirs of Line may draw from the Executors, whereof there is an ordinary list: The reason of this Heirship moveable, is, because, by our Law, by primo geniture excludeth the Defnncts other nearest of Kin in Heritage, where∣the nearest of Kin Succeeds alone in moveables; and as they have no share with the heir in heritable Rights, so most sitly the heir hath no share with them in moveables, but hath only the best of every kind, which therefore is called heirship moveable. In which the Defunct cannot, in his Testament, or any other Deed done on Death-bed, prejudge his heir, as was shown last Title; but if the nearest of Kin be all Femals, they are both heirs 〈◊〉〈◊〉 Exe∣cutors, or, if but one Male, he is both heir and Executor: in which cases. there is no heirship moveable drawn.

Heirship Moveable is established by the Act of Parliament, 1474. cap. 53. Ordaining the Heirs of Prelats, Barons and Burgesses, to have the best of every kind, according to the Burrow Lands, and so was found not to belong to the Heir of a Defunct, who had only heritable Bands, being neither Pre∣lat, Baron, nor Burgess. Hope de haered. Todorig contra 〈◊〉〈◊〉. But the heirs of Prelats was Extended to other Beneficed Persons, as was found in the heirs of the of Person of Dingwal, Novem. 28. 1623. William Rig contra Mc∣kenzie. And likewise, the heirs of Barons was extended to any Persons heirs, dying in Fee of Lands, though not erected in a Barrony, Hope de haered. Keith contra Mckenzie, Todoirg contra Purdie. heirship Moveable was found competent to the heir of a Person, who died only Infeft in an Annualrent, July 19. 1664. Elizabeth Scrimzeor contra Executors of Mr. John Murray. But heirs of a Burgess was found not to extend to an honorarie Burgess, who died not Trading, or Working in the Burgh, Spots heirs, James Leslie contra Hugh Dumbar.

Heirship Moveable, is not always a single thing, but goeth sometimes by Pairs, and sometimes by Dozens, as in Spoons: So the heirship of Oxen was found to be a Yoke, and not a single Ox, Nicol. de haereditatis petitione, July 20. 1610. Black contra Kincaid. And heirship taketh place, only in corpo∣ribus, but not in quantitatibus, as in Money, Cloath, Mettal, &c. And so the Shell of a Salt-pan, which was out of use, was accounted but Iron, and not to fall under heirship Moveable, Had. January 19. 1611. Reid contra Thomson.

10. Heirs of Conquest, though they be also heirs of Line, as befalling by the Course of Law, and not by the tenor of the Infeftment, and therefore were set down as Lineal Successors, in the preceeding Title; Yet because heirs of Conquest have only place, where there is an Elder and Younger Bro∣ther, or an Elder and Younger Father Brother, &c. and their Issue to suc∣ceed: In which case, the Law alloweth two heirs, the immediat Elder suc∣ceedeth in Conquest, and the immediat Younger in the heritage: Therefore, the one is specially called the heir of Conquest, and the other retaineth the common name of the heir of Line.

Conquest is feudum novum, whereunto the Defunct did not succeed as heir to any Person, or whereunto the Defunct could not succeed as heir, for if that were disponed to him by the Defunct, whereunto he would have suc∣ceeded, it were but Preceptio haereditatis, and so remained to be repute as he∣ritage to descend to the Younger, and not to ascend to the Elder, as Craig observeth, lib. 2. dieg. 15. Such heritages are rare, and befall only by Tail∣zie, or Provision amongst midle Brethren: Because the eldest, by primogeni∣ture, excludeth the rest from being heirs of Line, but it may befall, in case of the heirs of Lyne, when the nearest Successor, is the Fathers, or Grand-fa∣thers Brothers, or their Issue, there being Elder and Younger Brothers; but Conquest is frequent, because, not only that which is acquired properly, by the means and industry of the Defunct: But that which is by Gift of the De∣functs Parents, or any other, or, whatsoever the Defunct could not succeed to, is Conquest. Yet, if the heir of Conquest succeed, that which was Conquest becomes heritage, and descends: As if there were four Brothers, and the third acquiring Lands, Died without Issue, the second would be his heir therein, who, if he Died also Infeft, the Lands would fall downward to the Youngest Brother, and not upward, to the Eldest Brother. The custom of

England is contrary, for thereby, the eldest Brother succeedeth to all his Bro∣thers, failling the Issue; But with us, the Immediat elder or younger doth al∣ways succeed, though of different Marriages, none of them being Brothers∣german: And therefore, in the case proposed by Craig, lib. 2. 〈◊〉〈◊〉. 15. In fine of a Brother, by a second Marriage, dying without Issue, and having three Brothers of a former Marriage, no doubt the youngest would succeed: according to the Opinion of Oliphant and King, there related: Albeit, that Craigs opinion be, that the eldest would succeed. It was so decyded, con∣trary Craigs opinion, July 20. 1664. Laird of Clerkington contra Stewart.

Heirs of Conquest succeed, not only to Lands Conquest by their immedi∣at Predicessors, but in other heritable Rights, passing by Infeftments, as Annualrent, or such as are heritable by distination, and which are accom∣plished by Infeftment, as Despositions of Lands, or Annualrents, Appryzings, or Adjudications, &c. The like, where an Annualrent was first Disponed, and a Clause of Requisition, and Reversion subjoyned, July 7. 1675. Ro∣bertson contra Lord Halkertoun, and in Reversions, Hope de Successionibus, heirs of Pitcairne. But in this case, it is not cleared, whether the Lands given in Wodset, were heritage or conquest; but it seems, if the Lands had been he∣ritage, as they were Wodset, the Reversion would also belong to the heir of Lyne, as the Lands whereto it was accessory would; Yea, heirs of Conquest succeed in heritable Bands, bearing Clause of Annualrent: As was found a∣mongst the heirs of Doctor Craig. But the heirs of Lyne, and not the heirs of Conquest succeed in Tacks, acquired by the Defunct, Hope Succession, Earl of Dumbars heirs, June 23. 1663. Ferguson contra Ferguson. The heirs of Lyne do also succeed in Pensions, or any other Right, not requiring In∣feftment, as in these which having a tract of time, after the Defuncts Death, do thereby exclude Executors, and do belong to the heir of Lyne, and not of Conquest, though they be acquired.

The heir of Lyne, and not the heir of Conquest falleth to be Tutor, or nearest Agnat to the Pupil, to whom the heir of Lyne might Succeed. The heir of Lyne hath right to the heirship Moveable, and not the heir of Con∣quest.

11. Heirs-portioners are amongst Heirs of Line, for when more Women or their Issue succeed, failing Males of that degree, it is by the course of Law that they succeed; and because they succeeed not in solidum, but in equal Por∣tions, they are called Heirs-portioners; and though they succeed equally, yet Rights indivisible fall to the eldest alone, without any thing in Lieu there∣of to the rest. As first, Dignity of Lord, Earl, &c. 2. The principal Manse being Tower, Fortalice, &c. which doeth not extend to houses in Burghs, nor to ordinary Country-houses, the former being divisible, the lat∣ter falls under division, as pertinents of the Land whereupon they stand, and are not as separata jura, or distinct Rights. 3. Superiorities are accounted in∣divisible, and befal only to the eldest Daughter and her Issue, and thereby all the Casualities of the Superiority, either preceeding or following the Defuncts death, as Ward, Relief, Marriage of the Vassals Heirs, Nonentry, Liferent, Escheat, &c. The reason is, because the Vassals condition ought not to be worst∣ed and made subject to many Superiors by such Successions, Craig lib. 2. dieg. 14. excepteth the Superiority of Feu Lands, the Feu Duties whereof are divisible amongst all the Heirs-portioners, yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest, reacheth Feu Superiorities as

well as others; and it is hardly conceivable how Superiorities should belong to the eldest, and yet the Feu Duties divide to the rest, seing the Superiority as being Dominium directum, is the only Title for poynding the Ground, or pursuing the Possessors or Intrometters with the fruits thereof. It seems for the reason adduced, the Superiority, and therewith the Feu Duty befalleth to the eldest; yet so, because the Feu Dutie is constant and liquid, and is not like the other Casualities of Superiority, which are illiquid and accidental; there∣fore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty, in or off other proper Lands: Or if there were moe Superiori∣ties of Feu Lands, so that some of the Superiorities might befal one Heir, and others to other Heirs, no particular Superiority being divided, or the Vas∣sal made Vassal to many Superiors, I conceive it would be allowed; or other∣ways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty. A Vassals Heir, though the Defunct had taken Infeftment of more Heirs-portioners, was not found oblieged to take Infeftment of some of them severally, but either of all jointly, or the eldest, July 30. 1678. Lady Luss contra Inglis.

How far Heirs-portioners succeed passive, and are lyable for the Defuncts Debt, shall forthwith appear.

12. Heirs Male, and of Tailzie, and Provision, succeed not by Law, but by the tenor of the Infeftment or Provision, and therefore have that benefit and no more, which is so provided to them, or which is accessory thereto, whereby any Right or Security of Lands, or others befalling to these Heirs, which is thereafter acquired by their Predecessors, though the same be acquired to him and his Heirs whatsover, yet the same will befall with the principal Right, to which it is accessory to the Heir Male, or of Tailzie, or Provision. As if a Proprietar Infeft himself, or his Heirs Male, or of Tailzie, or Provision, in Lands or Annualrents, and thereafter acquire Reversion, Apprisings, Tacks, or others, further or better security of the same Lands to himself and his Heirs whatsoever; these will accress to his Heirs Male, or of Tailzie, or Provision, whe∣ther the Infeftment in their favours be anterior or posterior, which is the more dubious Case; for it cannot be thought that the Defunct having before provid∣ed such Lands or Annualrents to his special Heirs, doth by acquiring new Rights mean to set his Heirs by the Ears to debate upon their several Rights: Neither can his posterior Deeds be repute an alteration of the former Provi∣sion; which can only be done by Resignation, unless the Defunct debarred ex∣pressly, his former special Heirs, and obtained his Heirs whatsoever Infeft. And though Heirs whatsoever do ordinarily signifie Heirs of Line, who are heirs general, and take place, when the Right of no special heir appeareth, yet the adequat signification thereof, is not heirs general, but heirs generally, whe∣ther of Line, Male, Tailzie, or Provision, as is more clear passivè in the De∣functs Obliegment, as if he oblieged himself and his heirs whatsoever. By heirs whatsoever, will be understood all kind of heirs in their order, yea in some Cases only his special heirs, if the Obliegment relate to Lands or others so provided, as will shortly appear: And therefore, heirs Male, or of Tailzie and Provision, in respect of the heirs of Line, are as Strangers, and may come against their Predecessors Deeds in favours of his heirs of Line; as if any per∣son provide any Lands or Annualrents to his heirs Male, or of Tailzie, and thereafter dispone the same to his heirs apparent of Line, his heirs Male, or of Tailzie, will in several Cases not be oblieged to fulfil that Provision; and if such express Provisions be ineffectual to the heir of Line, it seems a general ta∣king

a new Right in favours of heirs whatsoever should be less effectual: But the difficulty is, how special heirs can be served heirs in such Rights superve∣nient, conceived in favours of heirs whatsoever, which will be loosed if the heirs special may be comprehended, and so served under the common Title of heirs whatsoever. How far heirs of Tailzie or Provision may alter the Tailzie of the Fee, or affect or burden the same, is largely considered, Title 13. §. 58. which therefore needs not here be repeated.

13. The common Interest of heirs passivè, is, that they are lyable for their Predecessors Debts, for they are repute in Law as one Person with their Pre∣decessors, and so represent them, not only active in their Estates and Goods, but also passive in their Debts and Burdens, Quem sequuntur commoda eundem & incommoda sequuntur; and this is common also to Executors as being heirs in the Moveables, but as the Executors succeed only in Moveable Rights active, so they succeed only in Moveable Debts passive, yet the Creditor hath his option to pursue either, or both of them, whether the Debt be heretable or move∣able, and the heir hath relief against the Executor, in so far as he is distres∣sed for Moveable Debts; so hath the Executor releif against the heir of the heretable Debts, March 7. 1629. Falconer contra Blair. Spots. Executors Laird of Carnousie contra Meldrum. But heirs and Executors differ in this, that the Executor is only lyable secundum vires inventarli, according to the Inven∣tar of the confirmed Testament, unless he disorderly intromet with more; but the heirs are lyable in solidum, though the Debt far exceed the value of the Estate.

Heirs are lyable for their Predecessors Debts, but not all the same way: First, Heirs portioners though jointly they be lyable for their Predecessors Debts in solidum, without benefit of Inventary; yet severally, each Heir-por∣tioner is regularly lyable but pro rata parte, though the proportion whereunto they succeed be more then the whole Debt, February 7. 1632. Hoom contra Hoom. Spots. Improbation Laird of Laars contra Dunbars, John Duncan and the heirs of John Ogilvy.

14. Yet one Heir-portioner was found lyable in solidum, as Successors in his whole Estate by disposition post contractum debitum, though there were other two Sisters, the one of whom being called, renounced, the Pursuer conde∣scending upon nothing, unto which she could Succeed; and the other having no means, but being called passive, Feb. 15. 1634. Peter Orr contra Elizabeth 〈◊〉〈◊〉: Neither did it avail, that the other Sisters had received portions of money near to the value of the Estate, by the Father in his Life, but Action of Relief was reserved against them, as accords, March 21. 1634. Inter eosdem: The reason thereof adduced, is, that the getting Portions in Money, could be no 〈◊◊〉〈◊◊〉, and so could not make the Receivers Lucrative Suc∣cessors, 〈◊〉〈◊〉 contractum debitum, as the Disposition of the Lands doth. Yea, an heir portioner being convened without the other, was found lyable in solidum, because the other was found not solvendo, and had disponed all right to the Defender, January 29. 1642. Scot contra Hart. But here the matter was but of small moment, and this was a doubt in the first Decision, in this Case, if some of the heirs Portioners should be insolvendo, whether or no re∣course might be had, against them that were solvendo, at the least, to the va∣lue of their proportion; which, though it seem Equitable, and is favoured by this last Decision, yet it is not decyded in the former, neither have I ob∣served it decided since, but in the pursuit, Decem. 23. 1665. at the instance

of Dam Rachel Burnet, now Lady Preston contra Sisters of her first husband: The Lords only discerned, against the heirs portioners, pro rata, but with Re∣servation to the Pursuer, to Insist and Dispute her Right against any of them, for more, if any of them proved insolvent: But it seems, the Portion of the in∣solvent, would not reach the solvent, above the value of their Succession. Be∣cause the only ground they could be lyable on, for more then their part would be in quantum lucrantur. For as heirs they could not be lyable in solidum, neither by our Law, nor the Civil Law. And if the Creditors Taciturnitie, whereby the other heirs became insolvent did appear, it would prejudge the silent Cre∣ditor, and not the heir, who did not know the debt, and so could not pre∣vent the others Dilapidation.

15. There is a case occurreth oft-times amongst heirs Portioners, when Se∣veral Obligations, and Provisions are granted in their Favours by the De∣funct, whereby, after his Decease, they become mutual Debitors, and Cre∣ditors; and sometimes these Provisions exceed the Estate, quid juris, whether do these Obligations evanish, and become extinct confusione; because the same Persons become Debitors and Creditors; or whether they do all stand, and in that Case, whether the first in Order will be preferred, or, if they all will be abated proportionally, to the value of the heritage. Thus Maitland observes, December 20. 1550. That a Father Infeft himself, and the heirs of the first Marriage, and thereafter resigned, and Infeft himself, and the heirs Male of the second Marriage, which failling his nearest heirs whatsomever, these heirs Male the second Marriage failled: And therefore, not the Daughter of the first Marriage only, but she, and the Daughters of a third Marriage Succeeded, by the second Infeftment, as his heirs whatsomever, sub∣stitute to be his heirs of the second Marriage. Craig hath the Case, but otherways observed, lib. 2. dieg. 14. Where a person had provided his Lands to the heirs of three several Marriages; of each whereof there survived a Daughter: The question was, which of the Daughters should succeed? Whether the first, as having the first Provision, or the last having the last Provision: The parties were three Sisters, Aikmans. In which the Lords admitted all the three Sisters as heirs Portioners, and so confounded the Provisions, being all equal; and about the same thing, which must be the Reason, and not that which is there rendered. Because the Defunct, notwithstanding of these Pro∣visions, in Favours of heirs might have Disponed effectual, to a Stranger: And so likewise to his own Children of another Marriage; For that Reason would have excluded the Daughters of the first Marriage, and preferred the Daughter of the last Marriage. And as hath been shown, Tailzies of Provi∣sions, upon an anticedent, onerous obligation; Such as is Marriage, hinder the Fiar to dispone, or provide the same to his heirs of Lyne, representing him sim∣plie, and must fulfil his Obliegment; Albeit his Disposition to Strangers, not so representing him, will be effectual: And therefore, Craig in that same place observeth, in the case of Isobel Barron, who being heir to her Father of his first Marriage, by which it was provided, that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage: And thereafter, having a Son of the second Marriage, who was his Fathers heir of Lyne, to whom his Father Disponed, or provided a Tenement acquired, during the first Marriage; Yet the said Isobel, as heir of that Marriage, recovered that Tenement from her Brother, as heir of Lyne. But the main difficultie remaineth, when the obliegment in favours of the heirs portioners are un-equal for when they are equal, whether they become extinct by confusion, or not, it is alike: But if they be so extinct, when they are un-equal, there will not be

an equal suffering, or abatement; but the greatest obliegment will be extinct, as well as the least: Neither can such obligations be wholly extinct, by con∣fusion, but only pro rata. So that if there be three heirs Portioners, for ex∣ample, the obliegment granted to every one of them, can only be extinct for a thirdpart, because they are but heirs in a third part, and as to two third parts, each two of them are debitors to the third: And if the obligation exceed the value of the heritage, such of them as find themselves losers, if they enter heirs, may abstain, and renounce, and they, or their Assigneys, may pursue any of the rest that shal enter, for fulfilling of the Defuncts obliegments, but if they be considerat, when all the obligations joyntly exceed the value of the Estate, they will all Renounce, and Assigne there obliegments, and their Assigneys will be preferred, according to their dilignece, without considerati∣on of the priority, or posteriority of the obliegments; but if they happen to enter, or when their provisions are not Personal to themselves, nominatim, but as they are heirs of Provision; and therefore necessarily require, that they must be heirs, before they can obtain their Provisions, then the obliegments or Provisions of each Portioner are extinct, as to their own proportion; but they have like Action against the others heirs portioners, for there proportion, as other Creditors have, the point will be clear by example; if three Sisters were provided by the Father, to un-equal Portions. The first to 15000. Merks, the second to 12000. Merks, the third to 6000. Merks. and the De∣functs whole Estate, had only been worth 18000. Merks. All of them enter∣ing, the case would be thus: The eldest would succeed to 6000. Merks of the heritage for her part, and the second would be lyable to her for 5000. Merks, as the third of the her provision, to whom she would also be lyable, for 4000. Merks, as the third of the seconds Provision, which being compensed, the second would be lyable to the first in an 1000. Merks, dc claro. In like manner, the first would be lyable to the third in 2000. Merks, and the third would be lyable to the first, in 5000. Merks, which being ballanced, the third would be de∣bitor de claro, to the first, in 3000. Merks. So the Interest of the first would be 6000. Merks, as her own portion: and one out of the Second, and Three out of the Thirds Portion, being in all a 10000. The second falleth 6000. as her share, out of which she is lyable in 1000. Merks, to the eldest and the youngest is due to her, de claro, 2000. Merks, whereby her interest will be 7000. Merks, the youngest Portion will be 6000. Merks, out of which she is due to the eldest, 3000. Merks, and to the second 2000. So there will remain only free to her 1000. Merks, This may clear the case as to liquid Sums, and as to Dispositions, or Provisions of Lands, or other obliegments in facto. These, or the Interest, or Value, will be the same way effectual, amongst the Heirs Portioners, as if they had been made to Strangers; Ex∣cept, where the same Disposition, or Provision is made to divers of them: For then either being equally oblieged to others, as representing the Defunct, the same become void, and in-effectual, protanto. As was found in the case of the Sisters Aikmans: But since the Act of Parliament 1621. against frau∣dulent Dispositions, the first Disposition, or Provision, constituting, that Party Creditor may give ground to Reduce a posterior Disposition of the same thing, to another of the Heirs Portioners, as being without a Cause onerous, after contractiong of the first debt, but that will not hold in Bands, for Sums of Money, all which will have their effect, as is before said. Neither will it hold, when the Provision of Lands, provideth the Party provided to be Heir, for thereby the party cannot Quarrel that Predecessors Deed: Other∣wayes the first Obliegment, or Disposition to any of the Heirs Portioners no∣minatim, may Reduce any posterior Disposition to others, of the Heirs Por∣tioners.

Two Daughters being served, both Heirs Portioners to their Father in some Teinds, but one of them Succeeding to her Brother, who was Infeft as Heir to his Father in Lands, excluding the other Sister, who was not Sister Ger∣man to her Brother, by both Bloods, and both being pursued for their Fa∣thers Debt, they were not found lyable equally, but proportionally, accor∣ding to the Interest they Succeeded to; the one being only immediat Heir to her Father, in a Right of Tiends, wherein her Brother was not served, and Infeft, the other being equally, and Immediately Heir to her Father, in these Teinds, and mediatly Heir to her Father, by being Heir to her Bro∣ther, who was Heir to his Father, being Infeft in the Lands, by precept of Clare Constat, without Service, June 10. 1673. Christian White contra Janet White.

16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum, except heirs substitute in Bands, who are only lyable quoad valorem in the sums in these Bonds, July 3. 1666. Fleeming contra Fleeming.

17. Heirs are not conveenable at the Creditors option, as in the case of heirs and Executors, but they have the benefit of an order of discussing. Thus, first Debts and Obliegments, relating to any particular Lands or Rights, and no other, do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general: So an Obliegment oblieging the Defuncts heir of Line or Tailzie, so soon as he should come to his Estate, was found to af∣fect the heir of Tailzie who came to that, Estate without discussing the heir of Line, Hope de Haeredibus, Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem: So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs, was found to burden the heir Male, before the heir of Line or Executors, July 22. 1662. Margaret Anderson contra Andersons. So likewise, an Obliegment to infeft a Party in an Annualrent out of Lands designed, was found to affect the heir of Provision in these Lands, without discussing the heir of Line, Nicol ibid. Edmonstoun contra Edmonstoun. This was also the opinion of the Lords, though there was no decision in it, February 19. 1611. Laird of Blair contra Fairlie. And in these Cases, the heir of Tailzie or Provision will have no Relief against the heir of Line, or other nearer heirs of Blood, who otherwise, and also Executors, must be discuss'd before heirs of Provision or Tailzie. General Obliegments not re∣lating to particular Lands, do, first, affect the heirs of Line, who are heirs general. 2. The heirs of Conquest, July 21. 1630. Fairlie contra Fairlie. 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision, not being so near of Blood, Hope de haered. Dunbar contra Hay of Murkill. the like must follow as to heirs of Marriages, who are also heirs of Blood, and must be discuss'd before other heirs of Provision or Tailzie, who therefore are only lyable in the last place, the rest being discuss'd, unless they become oblieged to relieve the heir of Line, November 22. 1665. Lawrence Scot contra Boswel of Auchinleck.

18. But an heir of Tailzie was not found to represent the Defunct in Ob∣ligations contrary to the terms of the Tailzie, as to which, heirs of Tailzie are as Creditors and Strangers; as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body, which failing, to a Person named, his heirs and Assigneys whatsoever, the Creditor being oblieg∣ed to do no Deed hurtful to the Tailzie; and the Debitor oblieged not to

pay without the consent of the Person named, that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor, without his consent or order of Law, by consigning it to be imploy∣ed in the same terms, and therefore, the Debitor was ordained to make up the Security again as at first, reserving to Creditors how far they could affect this Sum for the first Fiars Debt; or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use, or only unnecessary and voluntary Deeds, Feb. 3 1674, Drummond contra Drummond. And in like manner, a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body, which failing, to re∣turn to the Father and his heirs, the one of them having died without heirs of her Body, but having assigned her Bond to her Sister, the Assignation was found ineffectual, as being done on design to disappoint the Tailzie made by the Father of the return of the Provision, in case the Daughters had no Heirs of their Bodies, and so was done without any onerous Cause or just Conside∣ration, January 31. 1679. Jean Drummond contra Drummond of Rickertoun.

19. And likewise heirs of Marriage are heirs of Provision, and partly Cre∣ditors, and therefore may quarrel Deeds fraudulent, or meerly gratuitous, done by the Defunct whom they represent in prejudice of their Provisions, as was found in the forementioned Case of Isobel Baron, observed by Craig, who being heir of a Marriage, to whom all Lands conquest during the Mar∣riage were provided, the Father having disponed a Tenement acquired du∣ring that Marriage to his eldest Son by another Marriage, yet that heir of the Marriage did recover the same from that Son, albeit the heir of the Marriage did represent her Father, and yet not simply, but according to the provision by the Contract of Marriage, which being an onerous Contract, uberrimae fidei, the Father Contracter can do no Deed contrary thereto, but upon an onerous Cause or just Consideration; and therefore, if he sell any thing falling with∣in such Provisions, the heir of Provision cannot quarrel that Stranger, but is oblieged to fulfil to him, but might quarrel the same, if it were meerly gra∣tuitous, much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages, without which, the great trust of these Contracts would be eluded, whereupon Parties rely and make Matches and give Tochers; and therefore take Provisions to the heirs of the Marriage, either of definite Sums, or of all, or a part that the Con∣tracters have, or shall acquire during the Marriage, by which, the whole Estates of Citizens are ordinarily conveyed; or otherwise, Contracts of Marri∣age bear particular Lands, or Sums to be provided to the heirs or Bairns of the Marriage, and also the conquest during the Marriage, which clause of Con∣quest will reach only to what the Father had more at his Death then the time of the Contract, and is ordinary both in the Contracts of Citizens and others, which therefore should not be elusory, but effectual, according to the true meaning of the Parties, which is not to bind up the Father that he cannot do Deeds for Causes onerous, or rational Considerations, but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions: for though by such Provisions when fulfilled, he himself must become Fiar, and so may dispone, yet he is also Debitor, and so cannot effectually dispone against the import and meaning of the Provision: And therefore, a Father by his Contract of Marriage having provided certain Tenements to himself, and his future Spouse in Conjunct-fee, and to the Bairns of the Marriage, &c. and the Wife having restricted her self to the half of the Liferent of these Tenements, after which the Father having Infeft her of new in that half, the

said last Infeftment was found reducible at the instance of the Bairns, as heirs of the Marriage, and that they were not oblieged to fulfil their Fathers Deed in favours of their Mother, who was competently provided, in respect the same was contrary the provision in the Contract of Marriage, July 10. 1677. Car∣nagie and Clark contra Smith and Baird. Yea, a Father by his Contract of Mar∣riage having provided a definite Sum to the eldest heir Female of the Marriage, and thereafter having disponed his Estate to her, she marrying a Person that would assume his Name and Arms, wherein if she failzied, providing the same to his second Daughter upon the same terms, &c. the said eldest Daughter having married suteably before she knew that Disposition, and her husband re∣fusing to take her Name, she was found to have Right to take her to her Por∣tion by her Mothers Contract, and so the Right of her Fathers Estate was di∣volved to her second Sister, upon the terms therein contained, who was found lyable to pay the Provision to her eldest Sister, contained in her Mothers Contract, July 26. 1677. John Stevinson contra Marion Stevinson. But these Provisions do not hinder just and rational Deeds of the Father, as providing a Joynture for a posterior Wife, as was found in the Case of Katharine Mitchel contra the heirs of Thomas 〈◊〉〈◊〉, June 16. 1676. Nor will they hinder Fathers to provide Children of an other Marriage with competent Provisions ac∣cording to his condition, though thereby the conquest during the Marriage will be affected; Yea, where in a Contract of Marriage, the Husbands present Means, and the Wifes Tocher, were provided to be imployed for the Man and Wife in Liferent, whilks failing, the one half to the Mans heir, and the other half to the Womans heir. There being no Bairns of the Marriage, the Husband was not found lyable to imploy that Sum, and the conquest in favours of him∣self and the Wifes heirs, but that he might imploy the whole in favours of the Child he had by a posterior Marriage, December 21. 1680. Bailiff Anderson contra Andrew Bruce.

20. The exception that all Parties having Interest are not called, will be sufficient to sist Process against such Heirs as have the benefite of discussion, without necessity to condescend or instruct any Right they may succeed to, January 24. 1667. Laird of Luss and Glendening contra Earl of Nithsdale.

21. But the exception of the order of discussing will not be sustained, un∣less the Defender condescend on, and clear an Heritage, to which the anterior heir may succeed, which being a Dilator, must be instantly verified, as where it is notour; and where that cannot be, sometimes Process will be sustained against both heirs of Line and of Tailzie together, superceding Execution against the heirs Male or of Tailzie, till the heir of Line were discuss'd, July 13. 1626. Edgar contra Heirs of Craigmiller. And heirs of Line and Provision being pursued joyntly, the heir of Line renouncing, was assoilied and Protestation admitted for Adjudication against the heir of Line, which the Pursuer was ordained to assign to the heir of Provision, and was not found oblieged further to discuss the heir of Line, or to put him to his Oath upon any other passive Title, seing the heir of Provision required not the same, when the heir of Line renounced, nor shew any visible Estate which might befall to the heir of Line, June 22. 1678. Thomas Crawford contra the heirs of the Laird of Rater. The question is here, what is meaned by discussing, which is not understood by that heirs renouncing to be heir? July 26. 1622. Cowan contra Murray, but in that Case the renounced Heritage must be adjudged. Discus∣sing therefore, is by Horning, Caption, and Apprising, March 22. 1627. Edgar contra Heirs of Craigmiller; or otherwise by Adjudication, in case the heirs

renounce, by alledging his behaving as heir, was found in the foresaid Case, Cleghorn contra Fairlie. This passive succession of heirs in their Predecessors Debts and Obliegments, making them personally lyable thereto, befalleth in three Cases. First, When the Heir is entered heir. 2. When he is not en∣tered, but immixeth himself by medling himself as heir, or becoming lucra∣tive Successor, after the Debt contracted. 3. When the Heir is lawfully charg∣ed to enter Heir, though he hath neither entered nor medled, if he do not renounce, he is personally oblieged; and if he do renounce, his Person and proper Estate is free, and only the Heretage is lyable, and the Creditor hath Action contra haereditatem jacentem. The first Case is most ordinary and orderly, the second inferreth the vitious passive Titles, Gestionem pro haerede, or Pre∣ceptionem haereditatis: of which in the ensuing Titles. Let us here consider, first, the Charge to enter Heir, which is antecedent to the Entry; and then the Entry of Heirs it self.

22. The Charge to enter Heir, is founded upon the Act of Parliament, 1540. cap. 106. and it is of two kinds; a general Charge, and a special Charge: The general Charge to enter Heir proceedeth thus; the Creditor, upon Sup∣plication, without Citation, obtaineth from the Lords of Course, Letters pas∣sing under the Signet, to charge the Party complained upon to enter heir, to the Compleaners Defunct Debitor, within 40 days after the execution of the Charge, with Certification if he enter not, such Process will be granted against him, as if he were actually entered Heir: The reason of this Charge with us, is, because Heirs are not lyable passive, if they enter not, nor immix themselves in the Heretage; and therefore, that the Creditor may not ly out beyond the Year and Day granted to Heirs to deliberate, the Law hath introduced this remeid, that the Creditor may charge the Debitors appearand Heir to enter, whereupon he hath personal Action against him, if he renounce not, and thereupon may reach not only his Heretage, but his own proper Goods be∣longing to him aliunde; and if he renounce, he hath Action contra haeredita∣tem jacentem.

The general Charge to enter Heir, may be execute against the appearand Heir, after the Defuncts death, even within the annus deliberandi; but the Sum∣monds thereupon, must be after the Year and day expired, not only from the Defuncts death, but from the Heirs 〈◊〉〈◊〉, if he be posthumus, Spots. Heirs of Livingston contra Fullertoun; and therefore a Summonds execute after Year and Day expired, upon a Charge to enter Heir within the Year, was sustained, June 19. 1628. David Maculloch contra Marshal and Reid. July 10. 1610. Neil Montgomery eontra Laird of Langshaw. There is also an Act of Sedorunt in Anno 1613. allowing general Charges to enter Heir within the Year and Day, or within the days of the Charge, if the Heir renounce and omit that Defence, the Decreet Cognitionis causa, and Adjudication thereupon, werefound valid, and that alledgance proponed by another Creditor, was repelled; be∣cause it was free to the Heir as well to renounce when he pleased, as to enter when he pleased, July 10. 1631. Blair contra Broun; but it is like the poste∣rior Creditor hath been negligent, otherwise that prae natura diligentia of pur∣suing and renouncing within the Year, would have been accounted collusive and fraudulent, and so would not prejudge the other Creditor doing diligence in the ordinary way.

General charges to enter Heir, do evanish as incompleat diligences, if the Party charged die before Litiscontestation or Sentence; and though the fourty

days be expired before the death of the Party charged, yet the Charge useth not to be transferred or made use of against any subsequent Heir apparant, but it is not consequent that if the Charger die before Litiscontestation or Sen∣tence, that the same should also become void, because the Charger doth not necessitate the Party charged to enter or renounce in favours of the Chargers heirs, but of himself. And it was found, that an Assigny might insist upon a Charge at the Cedents instance, after the Cedents death, though nothing followed thereupon during his life, June 18. 1631. Prior of Archattan concra Captain of Clanronnald.

23. A special Charge to enter Heir, differeth from the general Charge in this, That the general Charge is in lieu of the general Service: for thereby the Creditor reacheth the Person of the apparant heir of his Debitor, and his Estate or Goods established in his person, unless he renounce: and so the general Charge is the ground of Process and Decreet for Payment. But thereby the Creditor cannot reach the Lands and Annualrents, which are not as yet esta∣blished in the Person of the apparant heir, he not being specially served there∣to, or infeft therein. And therefore, that the Creditor may reach these, he must use a special Charge, which supplieth the special Service and Eutry.

This special Charge, though it proceedeth upon Supplication without Ci∣tation, yet it must be upon production of a Decreet at the Creditors instance, not only cognitiònis causâ, but for performance. And it is competent in two Cases: First, upon the proper Debt of the Party to be charged. For if the Debitor be unentered to some of his Predecessors, and so their Rights not esta∣blished in his Person; in that Case the Creditor must charge his own Debitor specially to enter heir in the Rights competent to him by that Predecessor, with certification if he enter not, the Creditor shall have such Process and Execution against that Land and heretage to which he might enter, as if he were actually entered therein: whereupon Apprising doth proceed. In this Case there is no necessity of an antecedent general Charge, which only is used to the effect that the Debt may be established in the Person of the Debitors apparant heir passivè, by a Decreet upon the general Charge. The other Case is, when the Debt is not the proper Debt of the Party charged, but of some Predecessor to whom he may be heir: in which Case the Debt must first be 〈◊〉〈◊〉 against him passive, and then followeth the special Charge. In this Case the special Charge cannot be till after Year and day, because it pre∣supposeth not only the Summons, but also the Sentence upon the general Charge, both which must be after Year and Day. When the Debt is the proper Debt of the Party charged, if the special Charge may not be at any time, even within Year and Day, or if it must be after the annus deliberandi? This makes for the Negative, That it needs not abide the Year of Deliberation, because the intent of the Deliberation, is not so much whether the Party charged will be heir, as whether he will personally subject himself to the ground of that Charge, For albeit he renounce not, it will not make him ly∣able to any of the Defuncts Debts, except it be by his fraud and collusion with one Creditor in prejudice of another. And therefore seing he cannot delibe∣rate, whether he will be subject to his own Debt, he ought not to have the benefite ofYear and Day before the special Charge be effectual. Yet before the late Act preferring the diligence of the Defuncts Creditors to the heirs proper Creditors, there was no reason to allow special Charges for the apparant heirs own Debt, but more summar Execution than other Charges so to pre∣fer the apparent heirs proper Creditors to be Heir.

The Act of Parliament, which is the ground of the Charge to enter Heir, and is only the rise of the special Charge, insinuates an Exception, if the heir be major: But the custom of the Lords hath introduced the general Charge to constitute the Debt, and allows both Charges against minors.

There is no necessity either of a general or special Charge, as to real Acti∣ons, which may proceed against apparant heirs; as poynding of the Ground, January 2. 1667. Oliphant contra Hamilton. Neither in Declarators or Redu∣ctions.

24. The remedy against both Charges to be heir, is a Renounciation to be heir, whereby the Renouncers Person and his proper Estate, will not be ly∣able for his Predecessors Debt, but only his Predecessors heretage. This Re∣nounciation useth to be offered by way of Exception in the Process upon the general Charge: and if the Defender be not absent, it is not ordinarily admitted by Suspension, except in favour of Minors: who though being apparant heirs they take a day to Renounce and fail therein, yet they will be restor∣ed against the same by Suspension, without Reduction, January 25. 1628. Kennedy contra Mackdougal. Spots. Minors, Nisbet contra Nisbet. But if the Minority were controverse, and not instantly verefied, it must be by Redu∣ction, Spots. Minors, Mr. Thomas Craig Advocat contra Cockburn.

Renounciation to be Heir, was admitted rebus integris, though the Decreet and Charge were six years before, July 20. 1626. Harvie contra Baron. Yea it was admitted, though there was an Adjudication, and the Decreet supsended, which was declared to stand, and the apparant heirs Person and proper Estate were only freed. Spots. Restitution in integrim, John Oliphant contra Mr. William Blackburn. A Renounciation to be heir was not admitted with this quality, Excepting to the Renouncer certain Lands whereinto he was appointed to be infeft by his Fathers Contract of Marriage, and whereupon Inhibition was used before contracting of the Chargers Debt, to the effect he might enter heir to those Lands, January 23. 1627. Lady Ogilvy contra Lord Ogilvy. But in the like Case, Hope Inhibition, Donald Thorntoun contra Bailzie, June 15. 1615. and the like, November 30. 1620. Adamson contra Hamiltoun, the apparant heir was suffered to renounce to be heir to his Goodsire, except as to those Lands which his Goodsire had disponed to his Father in his Contract of Marriage, whereupon Inhibition was used: which the Lords found a singular Title con∣sistent with a Renounciation of the heretage ex titulo universali.

The Exception upon Renounciation to be heir, is elided, If the Defuncts Estate be burthened with the heirs proper Debt: whichis taken off by the du∣ply of purging the same: as appears in the Decisions before adduced. The said Exception is also elided by the Reply, As behaving as heir, albeit the same were libelled as a several passive Title, March 18. 1631. Reguel Bennet contra Bennet.

25. The Entry of Heirs, is either of heirs general, or heirs special. The for∣mer requires only a general Service, which is necessary to all heirs, except heirs in Tacks, Pensions, and heirs nominatim, immediately substitute in Bands. But heirs of Tailzie or Provision must be served, that it may appear that the heirs to whom they are substitute are failed. And therefore the only Child of a Marriage was found to have no title to pursue Implement of the Contract of Marriage, till he was served heir of the Marriage, July 21. 1676. Hay of

Drumelzier contra Earl of Tweeddale. The general proceedeth thus, a Brieve is taken out of the Chancery of course, without Citation or Supplication, for serving such a Person nearest and lawful heir to such a Defunct. It may be directed to any Judge ordinar at the Parties option, albeit the Defunct nor the heir never lived within that Jurisdiction, March 6. 1630. the Laird of Caskiben Supplicant.

The Lords may in Cases where an ancient or important Service is required, choose the Judge most fitting for the Affair. And when Brieves pass of course, they are obtained to any Judge desired. But they are easily Advocat, and re∣mitted to the Macers, with Assessors in cases of difficulty.

The tenor of the Brieve, is by way of Precept from the King to the Judge, To enquire per probos & fideles homines patriae, That such a Person died at the Faith and Peace of our Soveraign Lord: And that the user of the Brieve, is the nearest and lawful heir. So this Brieve, hath only these two heads. And thus not only Heirs of Line may be served generally, but also Heirs of Conquest, being to Succeed to Reversions, heretable Bonds, or the like Rights, not having an Infeftment, or requiring a special Service: Hope Succession, Earle of Dum∣bar's Heirs. And no doubt, Heirs Male may be served generally, that they may succeed to the like Rights which may be conceived in their Favour, and whereunto they can have no other Access. And for the same reason, Heirs of a Marriage may also be served, and Heirs of Provision in Bands.

General Services, use to be included in special Services, as Members thereof; and a Retour to an Annual-rent, bearing to be granted to Heirs whatsoever, and that the persons retoured Heirs in the said Annual-rent, was found to in∣struct him general heir, though it did not bear per expressum, that he was heir generally, but only in that Annualrent: Feb. 9. 1676. Ricartoun Drumniond contra Stirling of Airdoch.

The general Service of Heirs being retour'd, doeth so establish Rights not having Infeftment (as Dispositions, Heretable Bonds, Reversions, Apprisings, and Adjudications) in the Person of the heir served, as that no posterior heirs can have Right thereto, unless they be served heirs to the Person last served heir, though the Right stood in the name of the firstAcquirer, and not ofthe last heir, as an heretable Bond or Reversion remaining in the name of aFather, to whom his eldest Son was served heir generally, who dying without Issue, the second Brother must be served heir to his Brother, and not to his Father there∣in: as was thought by all the Lords after dispute in praesentia, albeit the matter was agreed without decision. Spots. Heirs, Captain Peter Rollo contra Stewart of 〈◊〉〈◊〉. The reason is, because the general Service is a compleatestablish∣ing of the Right in the Person of the heir: and therefore as in special Services the heir is served to him who died last vest and seised as ofFee, whereby that Right is established; so in the general Service, the heir must be served to him in whose Person the Right stood last. And though in special Services, the heir cannot be served to him who is last served special heir, unless he had been also Infeft: the reason thereof is, because the special Service as an incompleat Right evanisheth, and the next apparant heir must be served again to the same Defunct, but it is not so in general Services.

26. The Entry of Heirs to Lands or Annualrents, the Fee whereof is by Infeftment is either by consent of the Superior voluntarly, or by Law. The former is by the Superiors Precept, which from the initial words thereof, Quia

mihi clare constat, &c. is called a Precept of Clare constat, by which the Supe∣rior acknowledgeth, that the Defunct died last vest and seised in such Lands or Annualrents, and that the same are holden of him by such a Tenor, and that the obtainer of the Precept is nearest and lawful Heir to him in the said Lands, &c. and that he is of lawful Age for entering thereto. And therefore commands his Bailiff to Infeft him therein. Infeftment being past according∣ly, giveth that Party the real Right of Lands or Annualrents if done by the light Superior. It doeth also constitute the receiver thereof Heir passivè, and makes him lyable to his Predecessors Debts: but it will not constitute or instruct him Heir activè, or give him an active Title to pursue as Heir. Yea it will not be a sufficient title as to the real Right of the Ground against any other Party, than those who acknowledge the Giver thereof to be Superior, and the Receiver to be Heir. For if upon any other colourable Title, they question any of these, the Infeftment and precept of Clare Constat will not be suffici∣ent alone, unless it have obtained the benefit of a Possessory Judgment or Prescription.

27. Like unto this is the entry of Heirs, within Burgh Royal, by Hespand Staple, according to the Custom of Burgh, which is instructed by the Instru∣ment of Seasing only, without other adminicles, November 13. 1623. Mer∣shall contra Mershal, July penult. 1629. Wilson contra Stewart. In which case, though a Seasing by Hesp and Staple, was sustained to instruct an Heir activè: yet it was only because this pursuer had been proven Heir passivè the eby, at the instance of that Defender.

28. The securest Entry of Heirs specially, in Lands or Annalrents, is by Law. The procedor whereof is in this manner: Any Person may summarely 〈◊〉〈◊〉 a Brieve, out of the Chancerie, in the same manner, as the general 〈◊〉〈◊〉 which is directed by way of Precept from the King, or Lord of the Regality, having Chapel and Chancelarie; whereby the Judge to whom it is directed, is ordained, by an Inquest upon oath, to enquire, Who died last Vest and Seized, as of Fee in such Lands, or Annualrents: And if at the Faith and Peace of our Soveraign Lord, and Who is his nearest and lawful Heir therein, Of whom it is holden in Chief, By what Service, and What the Value of it is, now, and in time of Peace; And if the said Heir be of lawful Age, In whose hands the same now is, From what time, How, By what Service, By whom, and through what cause. It is needless to be Curious con∣cerning the number of the heads of this Brieve, some parts thereof not being distinct, but explicatory of the former.

29. These Brieves are accordingly direct to the Judges ordinary, where the Land, or Annualrent lyes, as to Sheriffs, Bailiffs of Royaltie, or Regality, or Bailiffs of Burghs-royal. But if there be just exception, against the Judge ordinary of the place, or if the Lands, or Annualrents lye in divers Ju∣risdictions, and so be represented; Warrand will be granted, upon Suppli∣cation to the Lords, that the Director of the Chancerie, issue Brieves to other Persons: and frequently, in the case of diverse Jurisdictions, they are directed to the Macers.

30. By Vertue of this Brieve, the Judge ordinary, or Delegat, to whom they are direct, citeth Persons to be members of inquest, upon 15. dayes: And 〈◊〉〈◊〉 the Brieves at they Mercat Cross, unless they be Served at the 〈◊〉〈◊〉 Court, when all the Free-holders are oblieged to be present,

and then the Brieve may be served, without further delay, conform to the Act of Parliament 1429. cap. 27. and Par. 1503. cap. 94. where it is left ar∣bitrary, to summon the Inquest on what dayes the Judge server of the Brieve pleaseth: or presently, if they be Persons of Inquest present in the Tolbooth, un-summoned. But in all cases, the Brieves must be proclaimed publickly, at the Market Cross, in plain Market, where most confluence of people is gathered, so as it may come to the knowledge of the partie, before whom it should be served. And then, that the said Brieve be thrice cryed, plainly together: which is by three several Oyesses, with a loud and audible Voice, before the reading of the Brieve, and the Sheriffs Precept thereupon: and each Oyes to be at as great distance from other, as the time required to give the said Oyes, thrice: and that the Officers of the Town be present. But if the Brieve come to be served so near Whitsunday, or Martinmass, that there does not intervene a Market day, the Brieves may be proclaimed upon any week day; the Officers and six. others of the Town being present: Yet, either the day of Compearance, or the day of Citation is numbered, as one of the fifteen. July 27. 1626. Mackculluch contra Mackculloch.

There is no necessity to Summon any Defender: in lieu whereof, is the publication of the Brieve, by Proclamation at the Market Cross. Yet upon the Supplication of the partie interessed, Warrant was granted by the Lords, to the Director of the Chancerie, that no Brieves should be issued for serving Heirs to such a Defunct, unless they contained a Clause to cite the Suppli∣cant, who was Donatar to the Defunct's Bastardrie, Spots. de haereditarijs acti∣onibus, Mackculloch contra Laird of Martoun.

31. The Inquest being called, consisteth ordainarly of 15. Persons: against whom, like Exceptions are competent, as against Witnesses. And though Craig, lib. 2. dieg. 17. regrateth, that any person is admitted to be one of the Inquest, whose Rent exceedeth not 40. lib. though they be not pares curiae, nor Con-vassalls with the partie to be served, neither of the vicinity, or Neighbour-hood, contrary to the Intent and Ancient Custom of these Services: Yet he acknowledgeth, that it was so ordainarly, especially in the Service of Noblemen: and Custom hath containued the same hitherto. But those of the Neighbour-hood were fittest: because, as Craig observeth in that place, Inquests are in the middle, betwixt Judges and Witnesses, partaking part of them both for two, or more of them, of their proper Know∣ledge, will be sufficient for Witnesses, in the matter of fact; and upon their declaration, all the rest will Serve affirmativè, without any other Testi∣mony. And it is like they have been of old, sole Judges in Brieves, the Judge ordinary, having no more power, but to call and order them. And they are yet with the Judge ordinary, or Delegat, as Judges: for they must serve, and do sometimes seal the Service with him.

32. The Inquest being settled, the Heir apparant gives in his Claim, craving to be served Heir to his Predecessor, in such Lands, or Annualrents: and therewith the Brieve and Executions thereof, together with the instructions of the same.

33. The Brieve and Claim are as a Libel; against which, any partie compearing, and found to have Interest, may propone their Exceptions; which are many more than those, contained in the said last Act of Par. 1503. cap. 94. And first against the Executions, as being blotted in the

date, or other Substantials, and so null; which thereby may not be mended, as other Executions: as the Name, and Sir-name of the Followers, and of the Defender; the name of the Land, and Cause upon which the Brieve was pur∣chased. Which was found, not only to extend to the blotting of the Brieve, but to the Executions thereof. July 27. 1623. Mackculloch contra Martoun. Or as not proclaimed upon fifeen days, which also will be relevant, by way of Reduction. Or that the Defunct was Bastard, and had no lawful Issue. Or, that the pursuer of the Brieve is Bastard, and so incapable of Succession: where∣in, if the proponer be more special, and pregnant, than the apparant Heir, in his alledgence of being nearest and lawful Heir; he will be preferred. Exceptions also are Competent, as to the point of Right, by proponing, and instructing, that the Defunct was denuded of the Fee: but Exceptions upon paralel Rights, that the Defunct had not a good Right, are not competent here. And also Exceptions upon the age of the apparent Heir, or his being forefault, or Rebel, &c. are here competent: and likewise Objections and Debates, upon Instructions and Writs adduced for proving of the Claim and Head of the Brieve. In which cases, if there appear difficultie, or intricacie; the Lords upon supplication, will constitute Assessors or grant Advocation of the Service: and after discussing of the points in jure, will remit the same. either to the same, or to other Judges delegat. But no Objection or Exception will be admitted, unless it be instantly verified; because this Brieve is no Brieve of Plea, Par. 1503. cap. 94. and therefore cannot admit of terms to prove Excepti∣ons.

34. The Debates upon the Brieve being discussed, the Pursuer thereof must prove, and instruct sufficiently the Heads of the same. As first, that the De∣funct died last vest and seised, as of Fee, at the faith and peace of our Sove∣raign Lord: which comprehends, first, the Death of the Defunct, which is ordainarly proven by the Knowledge of the members, Notorietie, or common Fame, without necessity to instruct the same, by ocular Witnesses who saw the Defnnct die, or buried. But in case of the Defunct's Death out of the Countrey, or if it be dubious or controverse; the testimony of Witnesses, or proper knowledge of two, at least, of the Inquest, or Testificats from abroad, especially from the Magistrats of the Place where the Defunct died, or was buried, are requisite: or common Fame, as to Persons who perish, or are killed.

The second poynt of this Head is, that the Defunct died, last vest and Seised as ofFee: which must be instructed, by production of theInfeftment, specially the Instfrument of Seising, and warrant thereof or ground of the same: For though in antiquis the very Precept cannot be shown, yet the Charter, or Disposition willbe a sufficientAdminicle, to corroberat thisSeising, that it be not accounted only as the assertion of a Natar: Yea, there is no doubt, but since the Act of Prescription, consequent Seisings having the Course of fourtie Years, may instruct this point: being sufficient even in the case of Competition, which is much exacter than this. And Spotswood observeth upon Retours, that in Anno 1547. a negativeService was reduced, upon production of a Transumpt of theDefuncts Seising, out of a Protocol transumed before a Comissar, with a Decreet against the Superior; bearing, to have confessed, that he had infeft the Defunct. But here the instructing the Defunct's being once infeft, will infer a Presumpti∣on, that he so continued, and so died Infeft: unless the contrary be proven, that he was denuded.

The third poynt in this Head, That the Defunct died at the Faith and peace of our Soveraign Lord, is also presumed: quia quod inesse debet 〈◊〉〈◊〉. And therefore needs no other Probation, but layeth the burthen of Probation upon theAlledger in the contrary, viz. That the Defunct died Rebel, or that he was Forfaulted, or his Blood attiainted: which may be elided, by the Replyes of Relaxation, Dispensation, or Restitution. But there useth small notice to be taken of Rebellion upon civil Debts: but only open Re∣bellion of War, or upon Treasonable Causes, whereupon the Defunct was declared Fugitve; which makes the Defunct, as to this poynt, not to die at the Faith of our Soveraing Lord. November 21. 1626. Seatoun Supplicant.

35. The second Head of the Brieve, is, That the Pursuer is nearest and law∣ful Heir to the Defunct in these Lands. Which resolveth in two points: First, that the Fee was provided to such Heirs, as are contained in the Claim, whe∣ther they be Heirs of Line, or of Conquest, Heirs Portioners, Heirs of Mar∣riage, Heirs Male, or of Tailzie and Provision. And this can only be in∣structed by the Defunct's Infeftment, and other ancient Evidents where in dutio, the Presumption is always for the Heir of Line. So that if it be not sufficiently instructed, that the Fee was provided to special Heirs, it will be∣long to the Heirs general, of Lyne, or Conquest according to Law: as if it be instructed by three consequent Seisings, which ordinarly do not express the the several Kinds of Heirs.

The other point of this Head is, That the Pursuer of the Brieve is nearest lawful Heir: which sometimes also is instructed by the Infeftment. As when the Person to be served, is a Member of Tailzie nominat: as if the Infeftment bear Land, or Annualrents, to be granted to the Feer, and to the Heirs of his Bodie; which failling to George his Brother, &c. George pursuing a spe∣cial Service, needs no further instruction: because, That he is George, the De∣functs Brother, passeth without probation as Notorium. But ordinarly the Propinquity of Blood must be proven to the Feer, who died last infeft, or to some member of Tailzie substitute. For proving whereof, the Relation must be particularly condescended on, according to the Line of Succession, menti∣oned in the former Title, as that the Pursuer is the Defunct's eldest Son, or the eldest lawful Son of that Son; or that they are the Daughters of that Son, &c. or the lawful Daughters of the Defunct, &c. And it will not be sufficient to instruct, or serve the Pursuer nearest lawful Heir, with∣out condescending. Here also the propinquity of Blood, being condescend∣ed on, and proven; it is sufficient, in whatsoever Degree can be proven, though it were beyond the tenthDegree. Yea, any Degree being presumed to be the nearest Degree, unless a nearer Degree be instructed; for it resolves in this Negative, that there is no other nearer Degree; which as other Nega∣tives, proves it self. And that thePursuer is not only nearest Heir, according to Lineal Succession, by Course of Law; but that he, nor none of the In∣tervenient Blood were Bastards, or unlawful Children, (which is instructed sufficiently by common Fame, or being so holden and repute, in the In∣termediates) it will be sufficient, that nothing is known to the Inquest, on the contrary, unless Bastardrie be on the other part alledged, and instruct∣ed. This propinquity of Blood is proven, either by Writ, or by Retours, Infeftments, or Designations, or Acknowledgments of the Feer for the time, bearing such a Person to be of such a Degree, or Relation to him. And in antiquis, Writs bearing such Designation and Acknowledgment, even by others of Fame, will be sufficient. For there is not equal evidence of Fame

required in all Cases. And therefore, when the Fee is to fall Caduciarie, and to cease from the Feer's proper Blood, lesse probation will serve, than when the Competition is betwixt divers Persons of the same Blood; or at least members of the same Tailzie: amongst whom the pregnantest probati∣on will take place. So the Service and Retour of the Earl of Airth, then designed Earl of Strathern, was reduced; because the propinquity of Blood not sufficiently instructed: which could not be known by the Inquest, or was Witnesses, the progresse thereof being far past memory of man; and Hear-say, or common Fame was not found sufficient. Neither were the Writs produced sufficient to prove the said Earls Propinquity of Blood to David Earl of Strathern, Son to King Robert the second, or to Eupham, only Daughter to the said David, and Patrick Graham her Spouse: which progress not being sufficiently instructed, the Right remained with the King, as the unquesti∣onable Descendent of the said King Robert the third, and so Heir of his Bro∣ther, the said David Earl of Strathern So that no other lawful Issue, being proven of the said David's own Bodie, nor of any other nearer Brother; all his Right remained with the King, as descending from King Robert the third, who was Brother to the said David Earl of Strathern. March 22: 1633. The King contra the Earl of Strathern. There is another Exception against this Head, That the pursuer hath slain his Father, Mother, Good-sire, Grand∣sire, &c. whereby he, and all his Issue are excluded from the Heritage of the Partie slain, if he be convict thereof by an Assyse and the next Agnat may be served. Par. 1594. cap. 220. Which was not sustained, where the Slay∣er was only declared Eugitive, for not appearing to underly the Law, in a Dittay for Slaying his Mother. Feb. 3. 1674. Mr. George Oliphant contra Oliphant.

36. The third Head of the Brieve is, Of whom the Fee is holden in Chief, or who is immediat lawful Superior thereof: and this also be instructed by the Infeftments: whereby the Giver of the last Infeftment will also be pre∣sumed to continue Superior, and the Inquest will serve accordingly; unless ano∣ther Superior be instructed, or acknowledged by the Pursuer. Which acknow∣ledgment, in respect of the Pursuer's hazard of Disclamation, and that the subsequent Superior's Rights are in his own hand, and he cannot be prejudg∣ed by the Service; therefore that poynt will be so served Periculo pe∣tentis.

37. The fourth Head of the Brieve is, By what Service the Fee is holden, whether it be Ward, Blench, Feu or Burgage; which also must be instruct∣ed by the Evidents. And if nothing else appear, the Fee is presumed to be Ward, because that only is the proper Fee, and the others are improper, declyning from the nature of Fees: and therefore are not presumed, but must be proven: And as Craig observes, lib. 2. dieg. 17. It will not instruct the Fee not to be Ward, though it contain a particular Reddendo, of a Cane or Dutie; yea, though it bear pro omni alio servitio & questione seculari: unless it express the said Reddendo to be in name of Blench Dutie, or in name of Feu∣Dutie; So an Infeftment, bearing a particular Duty payable at Whitsunday, and Martinmass yearly, cum servitiis in curiis nostris debitis & consuetis; was found to be a Ward Holding. Hope de Feudi Renovatione Williamson contra Thomson: And an Infeftment bearing sex denarios nomine canae, with a Taxed Marriage, was found Ward. Feb. 7. 1610. As was resolved by Oliphant the King's Advocat, in a Consultation with the Bishop of St. Andrews, for entring the Lord Lindsay to the Lands of Struthers.

38. The fifth Head is, The Value of the Fee now, and in time of peace. The reason of inserting of this Article, is, because there is due to the Superi∣or a years Rent of the Fee, for the entire of the Heir, which is called the Relief: of which formerly, Title Superiority. And that it might be con∣stant, and liquidat, there was a general Valuation of the whole Kingdom, which is called the old Retour, or old Extent. Thereafter there was a second Retour, called the new Retour, or Extent; whereby the new Retour of some Shires was made the Triple, and some the Quadruple of the old; Yea, different new Retours were in the same Shyre, but there is no new Retours in Southern Shires, upon the Border, which were frequently wasted with War, and little addition in the Northern Shyres. So the meaning of the Article is, what the Fee is worth now, that is, what the new Retour, or Extent thereof is, and what it was worth in the time of Peace, or what is the old Extent thereof. Craig declares, he could never find clear satisfaction in the reason of these expressions, especially, why the old Retour is called that which was in the time of Peace. And he conjectureth, that because our fore Fathers are said to rest in peace, therefore, by the same peace, is meant the time of our Predecessors. But I conceive the matter may be better cleared thus. The Casualities of the Superiority were, of old, the Chief Patrimony of the Crown of Scotland, and were further extended than of late: and therefore it seems, that the time of the making the new Retour, and cause thereof, was the frequency of War, requiring an Addition of the Royal Re∣venue And though, through the alteration of the Rate of Money, neither of the Retours be now considerable; Yet doubtlesse they were very consider∣able in those times. So that by quid valet nunc, is to be understood in time of War, at which time the new Retour was made: which is the more evi∣dent, by the opposite member, what was the Value in the time of Peace. So that the old Retour, being that Value which was before the necessity of heigh∣tening thereof, by the War, is fitly said to be that which was in time of Peace: and the new Retour, that which was made in time of War. And immediately, after the Constitution thereof, the Brieve was made to expresse it, by the then present time, Nunc: which hath been always so continued, because the Style of Brievs is not to be altered. This is the more evident, that the Bor∣dering Shyres, which were frequently wasted, by Incursions, were not alter∣ed in their Extent: So that it hath been made in a time of War.

The new Extent is not only the Rule of Relief, but of Non-Entrie, in Lands holden Ward, and Blench: for the new Retour Mail is only due till general Declarator. But in Feu Lands, there is only regard to the Ex∣tent for during the Non-Entry thereof, at least before general Declarator, nothing is due: but the Feu Dutie, and the Duplication thereof for the Re∣lief. Annualrents have no difference, before or after Declarator: and there∣fore are alwayes Retoured to the full Value of the Annualrent, and is thus exprest, quod valet seipsum.

39. The sixth Head is, Whether the Pursuer be of lawful age. Wherein we must distinguish betwixt Ward Holdings and other Holdings, Blench, Feu, or Burgage; For in these, any Age is lawful Age. but in Ward: Holdings, because the Superior by vertue of the Ward, hath the profit of the Land, during the Heirs Minority; therefore they cannot enter till their Majority, at which time, only the Heir is of lawful Age: which in Men is, twenty one Years compleat, and in Women fourteen Years compleat. January 27. 1610. Laird of Kilbirnie contra Fairly. Yet if the King, or any other Superior give Dispen∣sation

of the Age, the Service will proceed, but the benefit of the Ward continueth with the Superior, by the Dispensation in the Disposition. The Heir Age must also be instructed to the Inquest, either as being Notour, by inspection of the Persons; for it would be Ridiculous, to prove a Gray∣headed Heir to be Major, but in dubio, Witnesses, or other sufficient Admi∣nicles must be adhibited.

40. The seventh Head of the Brieve, is, In whose hand the Fee is; that is, to whom the profit and benefit thereof doth now belong. For ordinar∣ly the Fee is Retoured; to be in the hands of the Superior by reason of Non-Entrie, but sometimes retoured to be in the hands of the Supeiors, Superior, when the Sùperior hath lost the Casualities of the Superioritie, dur∣ing his Life; and sometimes it is in the hands of the Liferenters, by Con∣junct-Fee, or Liferent holden of the Superior; which doth not hinder the Entrie of the Heir to the Fee, yet excludeth Non-Entrie.

The remanent Particles of the Brieve, From what time, how, by what Service, by whom, and through what Cause; are but circumstances rela∣tive to the last Head: that thereby it may appear, First, How long the Fee hath been in Non-Entry, or in the hands of the immediat Superior, or Liferenter. 2. How it came to be in that Condition: So it became in Non-Entrie, by the Vassal's Death, and in the hands of the mediat Superior, by the contumacie of the immediat Superior, in not entring his Vassal; and in the hands of the Liferenter, by the Infeftment of Liferent, granted by the Superior. 3. The kind of Service which relateth to the Fee's being in the hands of the Liferenter, in respect that the Liferent, is oftimes a different Holding from the Fee, and is ordinarly Blench; and therefore it is the Supe∣riors Interest, to know what such Service is, and also to know by whom, and through what Cause, the Fee is in the hands of such a Person. These Circumstances therefore, do not make distinct Heads of the Brieve, and are not al ways necessary to be retoured, as the former Heads be.

41. The points aforesaid being cleared, and instructed to the Inquest, the Service is the Sentence or Decreet: which ought to be sealed with their Seals, and with the Seal of the Judge, to whom the Brieve is directed, and is returned to the Chancerie, whence it is called a Retour, being Registrate there, and Extracted; till which it is not compleat: neither doth the Service ordinarly instruct the active Title but only the Retour. The Service is keeped in the Chancery, for Warrant of the Retour: Yet it was found, that Services before the year 1550. were sufficient to satisfie the Production in Improbations, or Reductions, without producing the Re∣tour it self; because at that time the Books of the Chancerie were destroyed by War. Feb. 17. 1624. Lord Elphinstoun contra Earl of Marr.

42. Retours are easily annualled, or reduced, because no Desender is cal∣led thereto, and the Probation in most part, is by presumption, as hath been shown; and by the proper Knowledge of the Inquest, or Witnesses, whereof there seldom remaineth any Testimony in retentis. The Lords would not reduce a Retour for want thereof; But ordained the whole In∣quest to be examined upon oath, upon what Evidence they served. Feb. 24. 1665. Sr. James Mercer of Aldie contra William Rowen. A Retour being found null in one Head, was found null in otum, Hope, 〈◊〉〈◊〉; Laird of 〈◊〉〈◊〉 contra

A Retour of a Sister as Heir to her Brother, was found null by Exception upon production of another Brother's Retour, though posterior, who there∣upon was preferred; albeit an excommunicat Papist. Feb. 16. 1627. Lord Colvil contra Mr. Walter and Christian Herds. And a Retour of a second Brother served Heir to his Father, where the elder Brother was absent, and repute dead: but returning home again, and granting Band to a Creditor, who charged him to enter Heir, and apprised and possessed; the Re∣tour of the second Brother was thereupon found null by Exception; albe∣it twenty Years after the Date thereof: though by the Act of Patliament, 1617. cap. 13. Retours are not quarrellable by Reduction, or Summonts of Error; unless the same be intented, execute, and pursued within twenty Years after the Service, and Retour, in respect of the Apprising, and Posses∣sion within these Years, which import an interruption; and that the second Brother's Retour was null by Exception, and needed no Reduction. January 11. 1673. Lamb contra Anderson.

A Retour was also annulled by Exception, by referring to the Parties oath, that he had no contingencie of Blood with the Defunct, Feb. 10. 1636. Murray contra Sinclair and Meikle. The like in the case of a Wo∣man retoured sole Heir: it being instantly verified, that there was an∣other Sister. Hope. Retour of Idiotrie, Fairly contra Fairly. The like was found by Reply, referring it to the Partie's Oath, that he was Bastard. Spots. Retours, Murray contra Murray.

43. Retours are ordinarly annulled and reduced by a great Inquest, of twenty five Members: who do enquire, not only concerning the Verity, and 〈◊〉〈◊〉 of the Retour; but also concerning the Ignorance and Malice of the Jurantes super assisa: which is not always inferred, when the Retour is reduced. As if it be found, that the Defunct died not, last vest, and Seased; as of Fee; by instructing that he was denuded: July 7. 1663. Isabel Mow contra Dutchess of Buccleugh. Or that he died not at the Faith, and Peace of Our Soveraign Lord; by instructing that he was forefault: or that he was not nearest and lawful Heir; by instructing a nearer Heir: is no Error in the first Inquest; seing these points were presumed, and needed no probation. And in like manner, if by Reduction, there be a more pregnant Condescendence and Probation for another Partie, than for the Heir served; it will be no wilful Error, unless competition had been at the time of the Ser∣vice. But it must be an evident and grosse Error, in the positive Probation, specially concerning the Death of the Defunct, and his being once infeft; the special Relation, and Degree of Blood of the Heir, his Age, and the Extent of the Fee, which though the poynt of least moment, yet will annull the Retour. But if there be a probable cause for the Inquest, as by production of Writs containing wrong Extents; they will be declared free of wilfull Error. Spots. Retours, Mark Kerr contra Scot of Hartwoodmires. The manner of reducing of Retours, is, by a Summons of Error against the As∣sysors before the Kings Council, which is now the Lords of Council and Session. Par. 1471. cap. 47.

44. Though it be the ordinary way to annull Retours, by a great In∣quest; yet the Lords do sometimes sustain Reductions thereof as erronious, by Witnesses before themselves, without a great Inquest, July 7. 1663. Isa∣bel Mow contra Dutchess of Buccleugh.

45. The Reduction of Retours being of such hazard to the members of Inquest it is statute Par. 1494. cap. 57. That they shall not be reducible, but within three years after the Date; so as to inter Error against the In∣quest: albeit they may be reduced, as to render the Retours null in them∣selves at any time, within twenty Years after they were deduced. Par. 1617. cap. 13. Which Act reacheth only Retours after it, but not Retours before, and actions against the same; which Prescrive by the general Act of Prescrip∣tion, Par. 1617. cap. 12. As was found November 28. 1665. Younger contra Johnstoun.

46. The Heir being thus specially served and retoured, if the Fee imme∣mediatly hold of the King, he doeth thereupon obtain Precepts out of the Chancery, of course without Citation; commanding the Judge ordinary of the Place where the Feelyes, Sheriff or Balliff, to give Seasine to the Person retoured, capiendo securitatem, taking Security for the Non-Entry and Relief due to the King: for which the Judge ordinary is countable in Exchequer, un∣less the Profites belong to himself as Bailiff of Regality. If the said Judge or∣dinary do not grant Seasine accordingly, the Lords upon Supplication, and Instruments of his disobedience, will grant Warrant to the Director of the Chancery, to issue Precepts to an other Person as Sheriff in that part spe∣cially constiture, without first using Horning against the Ordinary disobeying. Spots. David Balfour Supplicant.

These Precepts, because of the Clause capiendo securitatem, were found to make both the person of the Heir, and the Ground lyable for the Sums due thereby, though Infeftment was never taken. Spots. Sheriff, Laird of Stobs contra Laird of Lauristoun. These Seasines are appointed to be given by the ordinary Clerk of the Jurisdictions, Parl. 1540. cap. 77. Parl. 1567. cap. 27. Parl. 1587. cap. 64. If the Fee be holden of any other Superior than the King, if he do not willingly grant Infeftment upon fight of the Retour; the Heir will of course get Precepts out of the Chancery, to charge the Supe∣rior to enter and infeft the Heir so retoured: with certification if he fail, he shall lose the benefite of the Superiority during his life: containing also this Clause in favour of the Superior, faciendo vobis quod de jure facere debet. And upon Instruments of the Superior's Refusal or Delay, being thrice required; Precepts are directed out of the Chancery in course, against his Superior, to supply his place: and if he should refuse, the like Certification is compe∣tent against him, and so Precepts are direct against his immediat Superior, till at last it come to the King as supreme Superior; who refuseth none, but there∣upon Precepts of Seasine are direct out of the Chancery to the Judge ordi∣nary of the place to give Seasine.

47. For preventing of the loss of the Superiority during life, the Superior being charged, if he obey not, must supend the Precepts: which is done most ordinarly upon this Reason, that the Heir hath not satisfied the Relief and Non∣entry Duties, due to the Superior, conform to the Clause of the Precept, fa∣ciendo vobis, &c. Which Craig lib. 2. dieg. 17. shows not to have been sustained by the Lords, seing the Superior had poynding of the Ground competent therefore: yet the custom since hath been contrary, July 29. 1624. Laird of Capringtoun contra Laird of Keirs. In which case, Keirs being pursued to re∣ceive Capringtoun in place of Capringtoun's immediate Superior, Foulshiels, who being charged to enter Heir within fourty days to the Superiority, that he might receive Capringtoun his Vassal, obeyed not; and therefore Keirs, Foulshiel's

Superior supplying his place, was ordained to receive Capringtoun, he always paying the Non-entry; neither was Capringtoun the Sub-vassal put to take out Charges against Keirs as he had done against Foulshiels, but this Action was summarly sustained. The like July 16. 1628. Earl of Wigtoun contra Lord Yester. March 12. 1630. Somervel contra Downie. Where the Annualrenter craving Entry, was not found lyable to pay the full Annualrent during the Non-entry, but the Blench duty only. And though in the Case of Peebles contra Lord Ross, January 23. 1630. Peebles as Superior craving the Non∣entry Duties for three Terms subsequent to the Ward, to be payed to him by the heir craving Entry not according to the new Retour, but according to the full Duties, as being subsequent to the Ward; was ordained to enter the heir without payment of those Duties, without prejudice of his Right thereto Pro∣ut dejure: the reason is rendered, because the Duties were not liquid as the new Retour is, neither was the case it self clear and unquestionable, and there∣fore was only reserved. If the Superior himself be not entered, he may be charged to enter within fourty days, with certification if he fail, to lose the Superiority during his life, conform to the Act of Parliament 1474. cap. 57. and if he fail, his Superior may be pursued via actionis, to supply his place, and re∣ceive the Sub-vassal with the same Certification, without necessity of charg∣ing him with Precepts out of the Chancery: As was sound in the said Deci∣sion, Capringtoun contra Keirs.

48. The Certification of loss of the Superiority during the Superior's life, though it would seem to extend to all the Casualties of the Superiority befal∣ling after contumacy; yet it was found only to extend to the Non-entry, which was purged by the immediat Superior who supplied the place of the mediat Superior: but that subsequent Wards and Liferent-Escheats did not∣withstanding belong to the immediat Superiors. March 24. 1623. James Hay contra Laird of Achnames. In which Case it was also found, that the Feu and Blench Duties contained in the Reddendo, did no ways fall by the said Certifi∣cation: which is clear, because these are not Casualities of the Superiority. But whether these Casualities will not be lost during the life of the contuma∣cious Superior, as the Certification would import, and will belong to the mediate Superior supplying his place, is not so clear: because if the negative hold, the Certification which seems so great, signifies nothing.

49. The next Reason of Suspension of these Charges for entring of Vassals, is, That the Heir retoured doth not produce the ancient Evidents, that the new Precept of the Superior for obedience may be made conform thereto. This Reason was repelled, November 14. 1609. Laird of Drum contra Laird of Ley. And though that might have been admitted, because of old Infeftments were simple; but now since they are clogged with many Provisions, which fall under the Service of the Brieve, there is reason that the ancient Evidences should be showen with the Retour, and those Provisions in the Precept offe∣red to the Superior; otherwise the said Provisions may become ineffectual: because these Precepts and Infeftments thereupon, will be sufficient Rights, without showing any elder. And seing it is the Vassal's duty to show his Hold∣ings to the Superior, there can be no time so sit as at the Entry.

A third Reason of Suspension of these Charges, useth to be upon the Supe∣rior's Right to the Property by Recognition, or upon Improbation of the heir's Retour. Which if Decreet be not past thereupon, will be repelled, and on∣ly reserved as accords: but will not be sustained upon a Reason of prejudicia∣lity

of a Reduction at the Superior's instance. Spots. Sheriff, Laird of Taich con∣tra Hume. Craig lib. 2. dieg. 17. moveth this Question, When one Person is the Feer, and another Liserenter of the Superiority by Reservation of his Frank-Tenement, or Liferent; and the like is, when Liferentis by Conjunct-fee: Of whom in that Case ought the Heir crave to be entered? In which he re∣lates, that the Lords in favour of the Vassal, found in the Case of Cransioun, Brother to the Laird of Cranstoun, That the Heir might enter by any of them he pleased, being without detriment to either of them. As to the Casualities of the Superiority, how far such Casualities belong to Liferenters, Vide Title Liferents.

50. There is another weighty and subtile Question in the Enty of Heirs, Whether that Person who falls to be nearest Heir at the time of the Defunct's decease, may not then be entered, though there be a nearer in possibility, or in hope? There is no question but when a nearer Heir is really or probably in Being, in the Womb, though unborn; that the Service must be stopped till the Birth. For in all things working in favour of those unborn, they are account∣ed as born: and that not only for presuming that there is a living Child, not a salfe Conception; but presuming that it is a Male Child, not a Female. And therefore Daughters of a Defunct cannot be served Heirs, if there be a pro∣bability of a posthumus Child, who is presumed to be a Son: whereby they will be excluded till the contrary appear. It was so amongst the Romans, who therefore sent the Womb in Possession for the Child. But with us, the Fee of necessity must remain in Non-entry: and the Friends or nearest Agnats of the Birth, as Pro-tutors, may continue the Possession. But the difficulty is, when the nearer Heir is in possibility, and neither conceived nor born: and it occurs specially in two Cases. First, in the Case of Heirs ascendent: as when the Father succeeds to the Son, having no Issue, Brother, or Sister. For in that Case, though at the Defunct's death there be neither Sister nor Brother gotten or born; yet the Father may have them after. So that the question will be, Whether the Father may enter immediatly upon the death of his Son, ha∣ving no Children, Brother, nor Sister born, nor in the Womb; or if he must attend the future possibility of a superveening Brother or Sister? The other Case is in Heirs of Tailzie, whereof there was a notable instance, long debated in Anno 1647, and 1648. on this occasion. The Laird of Blackwood mar∣ried his Natural Daughter Marion Weir, having no other Children, to Major James Bannatine; and in Contemplation of the Marriage, and for a Sum ad∣vanced by the Major for satisfying his Debts, he disponed his Estate of Black∣wood to Major Bannatine and the Heir to be procreat betwixt him and Marion Weir; which failing, to the Heirs of the said Marion Weir by any other law∣ful Husband; which failing, to the Heirs of the Bannatine. The Major died without Issue: So the question was, whether Bannatine's Heirs should succeed, or if the Succession behoved to be pendent, till it appeared whether there would be any lawful Heir of the Body of the said Marion Weir, who was no Member of the Tailzie her self, but only the Heirs of her Body. The whole question resulted in this Point, Whether whilks failing was to be understood failing de praesenti at the time of the Feer's death, or failing simply as being 〈◊〉〈◊〉 at no time. The matter was not dicided, but transacted, Whereby Marion Weir being married to William Lowrie, and having Children during the dependence of the Plea, the matter ended by Transaction betwixt the Laird of Corhouse, who was Major Bannatine's Heir, and William Lowrie tal∣ing Burthen for his Heirs with Marion Weir, thus; That the tailized 〈◊〉〈◊〉 should belong to Marion Weirs, Heirs: That William Lowrie for them should pay to Corchouse 20000 pound Scots, as the Sum which the Major his Brother

had contracted for payment of Blackwood's Debts, and had payed out upon Contemplation of the Marriage. There was a very equitable Transaction to the same effect, as if the Clause in the Tailzie had been interpret thus; That failing Heirs of Marion Weir, that is, so long as the Heirs failed, the Major's Heirs should succeed to him in the tailzied Estate. So that where there be∣came to exist Heirs of Marion Weir, both that they should succeed to Major Bannatine's Heirs, to wit, Corehouse who was served Heir of Tailzie to his Bro∣ther Major Bannatine; and should exclude Corehouse his Heirs of Line. Where∣by the Fee should never be in pendente at the death of the last Feer, but that Person should be entered as Heir of Tailzie, who at the death of the Defunct Feer, or at the time of the Service, was nearest Heir of the Tailzie: where∣by Corehouse should succeed as Heir of Tailzie to his Brother, because at his death, neither of the two former Branches of the Tailzie were existent, viz. the Heirs betwixt the Major, and Marion Weirs heirs by another husband. And therefore, a judicious and just Inquest lerving a Brieve for the Heirs of Tailzie of Major Bannatine, could not but find that he died last vest and seased as of Fee, in the tailzied Estate of Blackwood; and that the Majors Heir of Line, to wit Corehouse, his immediate elder Brother, is the nearest Heir to the Major by the Tailzie, there being no Heir of Marion Weir then existent, con∣ceived or born, she being unmarried. For if she had then had a lawful Child, the Inquest behoved to have served that Heir, as nearest Heir of Tailzie to Major Bannatine, then his Heir of Line. Neither would that Child be exclud∣ed; because the Child could not be Heir to Marion Weir while she was on life: for Heirs in that case were only mean'd, such as might be Heirs if she were dead. Suppose then there had been a Son betwixt the Major and Marion Weir, who had been infeft as Heir to his Father, and died without Issue; Ma∣rion Weir at her death having then a Daughter by asecond Husband: that Daughter would have succeeded as Heir of Tailzie, albeit a Son of Marion Weir were in possibility, and in the nearest hope, and to whom the title of her Heir would be most proper, as being her Heir of Line, or Heir simpliciter: yet the Fee would not remain in pendente and vacant till the event of that pos∣sibility, but the Daughter would be served as nearest, at the last Feer's death. And therefore, the Inquest could not justly swear, but that Major 〈◊〉〈◊〉 Heir of Line, is his nearest Heir of Tailzie the time of the Service. For if it should be 〈◊〉〈◊〉, that there were a nearer Heir in possibility or hope; the Inquest could not demur thereon: because an Heir in possibility is not, but only may be. And therefore, the Major's heir is the nearest heir of Tailzie, who needs not be served heir of Line to the Major. If the Major had an un∣tailzied Estate; his Brother might renounce to be heir of Line to him in that Estate, and yet might be heir of Tailzie to him in the tailzied Estate, as being still his heir of Line demonshrativè: that is, the Person who might be his heir of Line. And therefore, after Corehouse his death, if he died infeft as heir of Tailzie to his Brother; if the question again had arisen betwixt Corehouse his Son as his heir of Line, and Marion Weirs Son being then existent; an Inquest could not justly ferver Corechouse heir of Tailzie to him in the Estate of Blackwood: because then Marion Weirs Son was a prior Branch of the Tailzie, and so be∣hoved to exclude Bannatine's heirs of Line, which are the posterior Branch. Therefore, in lieu of this temporary Succession of Corehouse, resolving in his Liferent, as the Branches of Tailzies frequently do; he accepted 20000 l. which was his Brothers true Interest, and denuded himself in favour of Marion Weirs Son, the prior Branch. So we are left in both to a rational Debate, without decision. As to the first Case, we have already showen, both by Reason and Practice, That failing the Feer's Children, Brother and Sisters,

his Father and Grand-father succeed, and exclude their Collateralls. So thence it necessarly followeth, that these Ascendents may be served with∣out delay: otherways they could never be served; there being ever possi∣bility of the Issue of Men. Yet if they should not be entered before the su∣perveniency, even though but in the Womb, the same would take place: but if the Ascendent be actually entered, the Law affordeth no remedy, Re∣version, or Restitution. Neither can this difficultie be a Reason against the Succcession ofAscendents: because the question is only betwixt them and their own Children, and nothing operats in favour of their Brothers and Sisters, or their Descendents. As to the other Case, in the instance proposed, it seems the Succeession ought to have depended, till the event of the lawful Issue of Marion Weir. First, because that had a determined time, by the Course of Nature, viz. the fifteth or fiftieth two year of her Age; at which time, the Issue of Women is repute extinct: which is not so in the case of Men. Secondly, in Tailzies upon Contracts, and for onerous causes; respect is to be had to the meaning, and interest of the Parties contracters: and in dubio pars mitior est sequenda. And that sense is to be imbraced, by which the provisions can have some effect: and not that by which they can have none. Whereby it may seem, that it was Blackwood's meaning, that the Succession of his own Natural Daughter should be substitute, in the second member, to the Heirs betwixt the Major and her: and that while these were possibe, his Heirs should have no place. Otherways the second membet had been elusory. For if by sailling the Heirs of the Major with the said Marion, at the time of the said Major's Decease, Marions Heirs, by another lawful Husband should take place; her other Heirs could never take place. For she could not have another lawful Husband, at the time of the Majors her first Husband's Death.

Yet the Reasons on the contrary are no lesse pregnant; and that in this Case, as in the Case of Heirs ascendent, the Heirs nearest at the time of the Feer's Death, should have Rights immediatly to Succeed: because the Fee necessarly must belong to some Person, and it cannot hang in the Air, on a future possibility. Which is a principle, whereof mention and use hath been made frequently before. Secondly, if that were the meaning, then at the time of the Major's Death, the Lands were truely nullius: and so as ca∣duciary, behoved to sall to the KING, as ultimus Haeres. But if it had been so exprest, That no place should be to the Heirs of the Major's other Heirs, till there were no possibility of Heirs of Marion Weir; the defficulty seems the same, that the Fee should be pendent, and nullius. It may be answered; That even in that other Case, the Major's other Heirs would succeed, not∣withstanding that provision, which doth but resolve in aPersonalObligation to those Heirs, to forebear. Yet they were Heirs: and if contrary the provi∣sion, they should enter, it would give interest to the Heirs of Marion Weir, to compel the Major's Heirs having entered, to denude themselves in their fa∣vour. But there was no such thing in this Case. And as to the Reasons upon the contrary, though it may seem, Black-wood's interest, that the Heirs of his Natural Daughter should be in the second Place; yet non fuit habilis modus to make the Fee pendent and nullius. But to that which is the main Reason; Otherways the second member behoved to be elusory: it is answerd, That it is not elusory, because the most ordinary and hoped Case was, That there should have been Heirs betwixt the Major and Marion; who, if they had died without Issue, the Lands would have fallen to Marions Heirs by an∣other lawful Husband, and not to the Major's other Heirs. So that the

case which fell out, that there was no Children procreat betwixt the Major and Marion was not feared, and so not provided for: as it oft-times fares in such cases. Therefore we conceive it more probable, that in all cases, that Person, who at the time of the Defunct's Death, is in being born or unborn, may be Heir, and immediately enter, so soon as by the birth it appears who may be Served.

There hath a later Case occurred, and been determined on that occasion. The late Earl of Leven tailzied his Estate and Dignitie to the Heirs Male of his Body: Which failling, to the eldest Heir Female, without Division: Which failling to the second Son of the Earl of Rothess: Which failling to the second Son of the Lord Melvil, who had Married the Earl of Levens Sist∣er: Which failling to the second Son of the Earl of Weemes, who had mar∣ried his Mother. Leven left three Daughters after him, who died all un-ente∣red. Rothess having no second Son, David Melvil second Son to the Lord Melvil, took a Brieve out of the Chancery, to serve himself Heir of Tailzie to the Earl of Leven. The Earl of Rothess took a Gift of the Non-entry, in the name of Sr. William Bruce, who raised an Advocation of the Brieve, with a Declarator, That while there was no hope of a second Son of the Earl of Rothess's Body, David Melvil, nor no Son of a subsequent Branch could be entered: Or declaring, That the Lands were in Non-entrie. Both members of the said Declarator the Lords did sustain, and stopped the Service: albeit many inconveniences were represented, thence arising. As that there could be no active Title for pursuing the Rights of the Familie, or for receiving Vassals: nor any Accesse to the Estate passivè by Creditors. But the Lords did reserve to the special Declarator, how far the Non-entry would reach, whether to the retoured Duties only, or to the full Rents. But many of the Lordswerc of opinion, that David Melvil should enter as Heir of Tilzie; Yet so that if the Chancelor had a second Son, he or his Issue would succeed, as Heir of Tailzie to David Melvil: and neither his own Heirs of Line, nor the Earl of Weemes's second Son. Because at the time of David Melvils Death, the Chancelor's second Son would be a nearer Heir of Tailzie to David than his own Son, as being of a prior Branch of the Tailzie. Feb. 22. 1677. Sr. William Bruce contra David Melvil. But the Lords found, that the Non-en∣trie by the special Declarator, could not reach to the full Rents, but only to the Retoured Duety; Seing the apparent Heir, was neither in culpa nor mora, Which doth only infer the full Duties. And therefore found the Donatar had right to the retoured Duties: and that the remainder continued in haereditate jacente, to be managed by the Lord Malvil, as Curator datus bo∣nis of the Estate of Leven by the King, having power to manage the Affairs of that Estate as a Tutor, or as if an Heir had been entred. July 24. 1677. inter eosdem.

51. It cometh oft-times to pass, that through the unclear conception of Clauses of Provision, it becomes dubious, who is thereby constitut Feer, and who Liferenter: as is ordinary when Sums of Money are lent, and the Obligement to repay is conceived thus; To be payed at such a Term to the Lender, and in case of his Decease, or failing him by Decease, or after his Decease to such a Person. Whence these Questions result; first Whether the Lender be Feer of the Sum, and the Person substitute Heir of Provision? Or whether the Person substitute be Heir; whether he may succeed at any time, or only if the Lender die before the Term of Payment? As to the first Question, the Person substitute is not Feer but Heir: and the Lender is not Liferenter

but Feer; and therefore may dispose of the Sum at pleasure, by Assignation, Legacy, or otherwise, as other Feers may. February 22. 1623. Mr. John Leich contra Laird of Balnamoon. February 28. 1626. Tulliallan contra Laird of Clack∣mannan. And where the Clause bare to be payed to Clackmannan and his Spouse, the longest liver of them two; and in case of their Decease, to Alex∣ander Bruce their Son in Fee, with an Obligement to infeft the Spouse in Life∣rent and the Son in Fee, in an Annualrent effeirand thereto; yet the Father was found to have Right to dispose of the Sum. The like was found Feb. 20. 1629. Laird of Drumkilbo contra Lord Stormount: where the Father surviv∣ing the Term of payment, though he freely and without a Cause onerous, dis∣charged the Sum provided to be payed to him, and failing him to his Son; though it bare a Clause of Infeftment to the Father in Liferent, and to the Son in Fee, but no Infeftment followed. The like, though the Father and the Son subtitute, were both infeft in one Seasine: July 23. 1675. Laird of Lamingtoun contra Muire of Annistoun.

As to the second Question, The more ancient Decisions have interpret such Clauses strictly, thus; That the Sum payable at such a Term to the first Person, should be payed at that Term to the Person substitute; so that it should be payable at no Term thereafter to the Person substitute: but if the first Person survived the Term of payment, though he did nothing to alter the Substitution, the same should not belong to the Person substitute, but to his heirs. Hope succession. Spots. Assignations, Laird of Bonytoun contra John Keith. Feb. 22. 1623. John Leich contra Laird of Balnamoon. Where it was found, that such Sums came under the first Persons, surviving the Term, their Testament, and belonged to their Executors. But more frequent Decisions have with better reason interpret such Clauses on the contrary, that the Person substitute is heir of Provision whensoever the Defunct dies, whether before or after the Term. Because constitution ofheirs is simply, and not ad diem: but mainly because the ordinary intent of such Clauses, is to appoint Portions for the Bairns named therein, who therefore are substitute heirs of Provision to their Father; so that if he do not expressly alter or prejudge the Substitution, his intent is, that they succeed him whensoever. Spots. Assignations, Currie contra Nimmo: Relict of John Thomsom contra William Thomson. The like in a Legacy left to a Person, and failing her by Decease to another: which was not found à fidei commissum, to be restored by the first Person to the second at her death. And therefore the Assigny of the first Person was preferred. Spots. Disposition, Sarah Reid contra Alexander Downie. January 18. 1625. Wat contra Dobbie. June 26. 1634. Keith contra Innes. Therefore such Sums bearing no Clause of Infeft∣ment, yet fall under Testament, neither hath the Relict a third thereof, Hope, Successions.

In these Substitutions, though the Person be substitute as heir, yet he is not properly heir, and so needs not to be entered by any Service, because he is nominate, and there is no other heir. But inTailzies, though some of the Mem∣bers of the Tailzie be nominate; yet because in Lands as is before said, the Person nominate is never the first heir: therefore there must be a Service, to enquire whether the first heir fails or not, which is unnecessary where there is one Person only nominate to be heir, concerning which, there needs beno enquiry.

Though the Persons substitute be as heirs, it followeth not that they must be lyable as heirs of Provision to the first Person's Debt, contracted before the

Substitution: because they are not properly heirs, not requiring any Service They are interpretativè like to heirs, because the nature and intent of such Clauses is not to constitute the first Person as a naked Liferenter, but that they are understood as if they were thus express'd; With power to the first Person to alter aad dispone at his pleasure during his life. So thereafter, only the heirs substitute take place, though in these respects as heirs, yet in reality as secundary, conditional, or substitute Feers. But the Substitute is lyable, other 〈◊〉〈◊〉 Heirs and Executors being discussed; unless the Person substitute ab∣stain. Because the Substitution is a gratuitous Deed in prejudice of Creditors, post contractum debitum, and so annullable; and the Substitute medling, is ly∣able to repay quoad valorem only, but never by an universal passive Title. July 3. 1666. Fleeming contra Fleeming.

The next difficulty is, who is Feer in Provisions, or Tailzies of Sums, An∣nualrents, or Lands in Conjunctfee: wherein these general Rules do ordinar∣ly take place. First, That the last termination of Heirs whatsoever, infer∣reth that Person of the Conjunctfeers, whose Heirs they are, to be Feers, and the other Liferenters. 2. When that is not express'd potior est conditio masculi, the Heirs of the Man are understood. But these have their own Limitations; as first in Moveable Goods, and Sums provided to a Man and a Wife, and their Heirs, without me ntioning, which failing to whose Heirs the same should be due, were found not to fall to the mans Heirs, but to divide equally be∣twixt the Man and Wifes Heirs. February 2. 1632. Bartholomew contra Has∣singtoun. February 18. 1637. Mungle contra John Steill. Yea, a Clause in a Reversion redeemable by a Man and his Wife, and their Heirs, was found to constitute the Wife Feer of the Reversion; because she was Feer of the Land Wadset. Hope, Liferent, Kincaid contra Menzies of Pitfoddels. But an Assignation to a Reversion provided to a Man and Wife, the longest liver of them two and their Heirs, was found to make the Man only Feer. Hope, Husband and Wife, Walter Collistoun contra Laird of Pitfoddels. A Clause in a Charter providing Lands to a Man and his Wife, the longest liver of them two, and the Heirs betwixt them; Which failing, to the Heirs of the Mans Body; Which failing, to the Wife her Heirs whatsoever: though the last ter∣mination was upon the Wife, yet the Husband was found Feer. July 24. 1622. Ramsey contra Laird of Conheath. The like in a Clause providing a Sum, be∣ing a Wifes Tocher, to the Man and Wife, and the longest liver of them two in Conjunctfee, and to the Heirs betwixt them; Which failing, the Wifes heirs; yet the Husband was found Feer: and therefore the Creditor apprising, exclud∣ed the Wife and her heirs. January 29. 1639. graham contra Park and Jarden. And a Bond providing a Sum to a Man and his Wife in Conjunctfee, and the Bairns procreat betwixt them; which failing, to two Bairns of a former Marriage nominatim, containing a Precept for infefting the Spouse and the two Bairns named, whereupon all the four were infeft: yet the Father was found Feer, and all the Bairns of the Family, Male and Female equally, were found heirs of Provision; and the two Bairns named were found Heirs substi∣tute, failing the Bairns of the Marriage, January 14. 1663. Thomas Beg con∣tra Sir Thomas Nicolson. And a Bond bearing a Sum borrowed from, and pay∣able to Man and Wife, and longest liver of them two in Conjunctfee, and to the heirs, betwixt them and their Assignys; Which failing, to the Heirs and Assignys of the last liver: found to constitute the Husband Feer and the Wife Liferenter, albeit she was last liver, and that her heirs of Line were found heirs of Provision to the Husband. January 2. 1668. John Justice contra Mary Barclay his Mother. A Tocher provided to the Husband and Wife, the long∣est

liver in Conjunctfee and Liferent, and to their Bairns in Fee; was found to make the Husband Feer, and that the Father might alter the Substitution. December 12. 1665. Mr. John Pearson contra Martine. And generally in all Infeftments in Conjunctsee betwixt Man and Wife, the Husband is always in∣terpret to be Feer, and the Wife Liferenter: albeit the last Termination be the Wifes heirs; who are heirs of Provision to the Husband, unless the Right flow from the Wife originally: as if she should resign her Lands in favour of her Husband, and her self in Conjunctfee, and the heirs of the Marriage; which failing, her heirs: or if the Right did flow from the Wifes Father by a gra∣tuitous Deed. But by the Contract of Marriage, a Father oblieged himself to infeft the Husband Contracter, and his Daughter, in Conjunctfee and Life∣rent, and the heirs betwixt them; which failing, the Daughters heirs and As∣signys whatsoever. And by the same Contract, the Husband was obliged to provide all Lands that she should acquire or succed to, to himself and Wife, the longest liver of them two in Conjunctfee, and to the heirs betwixt them; which failing, the one half to the Husband's heirs, and the other to the Wifes heirs, and their Assignys. By both these Clauses the Husband was found to be Feer, and the Wife Liferenter: albeit the Tenement disponed by the Father was not nomine dotis, yet there was no other Tocher, July 2. 1671. Adam Gairns contra Isabel Sandilands. Yet a Clause in a Minute of a Contract of Marriage, obliging the Husband to infeft his Wife in Conjunctfee and Life∣rent in such a Barony named, and obliging him and his Heirs and Assignys, that all and whatsoever Lands or Sums of Money should be purchased by him during the Marriage, that Security should be made in Liferent thereof, as of theforesaid Barony, to his future Spouse in case of no Issue of Children, the one half of the said Conquest to be disponed upon as the Wife shall think fit; the Conquest was found to be equally to the Husband and Wife, and that she was Liferenter of the whole, and Feer of the half: in respect the Minute did not bear whose heirs should succeed; and that the Conquest was all to be expected by the Wifes Means, therefore she being Conjunctfeer, that the one half of the Conquest should be disponed as she pleased; she was found Feer of that half, as not being a Faculty, but a Power of Disposal importing Property. June 27. 1676. Earl of Dumferling contra Earl of Callendar.

52. There do many questions arise, as to the Succession of Heirs of Pro∣vision, by Clauses of Conquest in Contracts of Marriage. The main question is, what is accounted Conquest; Whether that which is acquired, and there∣after disponed, be accounted Conquest, either as to the Wife, or to the Heirs, or Bairns of the Marriage. As to which it hath been shown before, that such Provisions infer not only a Succession to the Heirs, or Bairns of the Marriage, as Heirs of Provision; but thereby the Wife or Heir, and Bairn of the Marriage, have an interest as Creditors that the Husband, or Father cannot, ad arbitrium, do Deeds prejudicial to that which is once ac∣quired: but the Husband is not thereby bound up from disponing to Stran∣gers, for causes onerous; or to other Wives or Children, for compe∣tent Provisions. But he may not otherways intervert the design of those Pro∣visions, by taking the Rights to Wives, or Children of another Marriage; unlesse he have not means aliunde to provide them. And therefore the Husband being oblieged, to take all Sums acquired, during the Marriage to to himself and his Wife inConjunct-fee; having taken a Sum acquired during the Marriage, in the name of his second Son: his Relict was found to have Right to the Annualrent thereof. July 16. 1625. Knox contra Brown. The like, where the Bonds were taken originally in the name of the Bairns, leav∣ing

out the Wife. March 14. Graham contra Representatives of her Husband. But Clauses of Conquest, of all Lands acquired during the Marri∣age, do not extend to Lands, acquired and disponed during the Marriage. Yea Conquest of Lands was extended where there was Disposition with∣out Infeftment: with a burthen of a part of the Price upon the Disponer. January 24 1629. Lady Rentoun contra Laird of Rentoun. Spotswood, Hus∣band, Countess of Dumfermling contra Earl of Dumfermling. And where the Clause of Conquest bare Lands or Annualrents; the same were extended to Bonds bearing Annualrent, though without clause of Infeftment. Feb. 20 1629. Douglas contra White. And these Clauses are interpret strictly, ac∣cording to the tenor thereof: for sometimes they only bear Lands Conquest, sometimes Lands or Annualrents, sometimes Lands, Annualrents, or Sums of Mony, and sometimes also Goods or Geer: in which case the Executors will be obliged to imploy moveable Goods, and Sums; for the Wife in Liferent, and for the Bairns and Heirs of the Marriage in Fee. These Clauses of Conquest do never extend to any thing, whereunto the Husband succ eds as Heir, or Executor; unless Succession be exprest. A clause of Conquest, oblieging the Husband to take all Lands, Annualrents and Sums, conquest, during the Marriage to himself, and the Heirs and Bairns of the Marriage, one or moe; found to constitute all the Bairns of the Marriage, Male and Female, Heirs Portioners: and that it was not alternative, that the Husband might either take the Conquest to himself; and the Heirs of the Marriage; or to himself, and Bairns of the Marriage, at his option. And therefore having taken a considerable Sum, in favour of himself and the Heir of the Marriage, who was his only Son; yet after his Death, his four Daughters, of that Marriage, obtained Decreet against their Brother, to de∣nude himself of their Shares. January 29. 1673. Stewart contra Stewart. But Conquest is only understood, of what the Husband acquired more, after his Contract of Marriage, than what he had before. And therefore if he acqui∣red Lands, Annualrents, Sums or Goods; if he instruct, That he had as much, (or a part thereof before) as he sold; the superplus will only be count∣ed Conquest. And though he have not disponed on any thing he had before, 〈◊◊〉〈◊◊〉 he contract Debt for purchasing the Conquest; it will be burthered with the Annualrent of the Debt: as was found in the former cases. And the like, December 20. 1665. Lady Kilbocho contra Laird of Kil∣bocho. June 27. 1676. Earl of Dumfermling contra Earl of Callender. The like was found in a Provision of Conquest, of all the Husband's Goods and Geer acquired during the Marriage, to the Wife for her Liferent use: which was found to be with the burthen of the Husband's Debt, contracted before, or after: and so to import only Liferent of the free Geer. December 23. 1660 Jane Smith contra Margaret Muire. And where a Husband was obliged to imploy a definite Sum, for himself, his Wife, and Bairns of the Marriage; and also his Conquest, and having acquired a Tenement during the Marriage: to himself, and his Heirs whatsoever; that Tenement was applyed to the definite Sum, primo loco, and the superplus as a Conquest, January 4. 1672. Beaty contra Roxburgh.

So much for the Being and Interest of Heirs. As for the proving and instruct∣ing who are Heirs, the most ordinary by way of Retour, or Infefment as Heirs; or by a Service, though not Retoured: but those Instructions must be repeted in every several Process. For so an Heir active, was found not to be instructed, by a Decreet at his instance, as Heir, against the same Defender. and in the same Matter, without reproduction of the Instructions. Feb. 22.

1629. Stewart contra Wilson: neither was it instructed passivè by a Decreet of the Comissars, by production of the Defender's Seisine without 〈◊〉〈◊〉 thereof, Had.

Neither was it instructed passivè, by the Kings gratuitous Restitution of the apparant Heir, of a forefault Person; which made him capable of his Father's Rights, but not Heir nor Successor to him. Hope, forefaliure, Halyburton con∣tra Lord Balmerino. Neither by a Bond, wherein the Party designed him∣self Heir, or at least apparant Heir; which relateth nothing to the benefit of Succession. January 24. 1626. Laird of Glenkindie contra Crawfoord. Nei∣ther by an Award of a Town Court, recognoscing a Burgess, Heir to his Pre∣decessor. Spotswood Heirs, Gudelet contra John Adamson.

TITLE XXVIII. Behaving as Heir.

• 1. Gestio pro Haerede described.
• 2. The time when this passive Title was introduced.
• 3. The reasons of introducing it.
• 4. The latitude used in this Title.
• 5. This Title not competent after the Intromette's Death, or where there was any colour able Title.
• 6. Behaving as Heirs by Intromission with Heirship, only competent a∣gainst Heirs of Line.
• 7. Intromission of Tutors or Curator's in∣fer not gestionem against the Pupills or Minors.
• 8. Cases inferring gestion by Intromis∣sion with the Heirship moveables.
• 9. Exceptions against this member of the Title. As first, The Pur∣suer must instruct that the Defunct was either Barron, Prelat, or Burgess, by Infeftments of Lands, or 〈◊〉〈◊〉.
• 10. The 2. Defence against Intromis∣sion with Heirship Moveables, and vitious Intromission, That the Defunct died Rebel, and his Escheat gifted before intenting the Cre∣ditor's pursuit.
• 11. The 3. Defense, That the ap∣parant Heir intrometted, by a Gift to himself, or to his behoofe.
• 12. The 4. When Moveables belong∣ing to a Defunct remain in his House, whereunto his apparant Heir hath right by Infeftment.
• 13. Gestion by intrometting with Lands, Tiends, or Tacks, wherein the In∣trometter might be Heir.
• 14. Defenses against this member.
• 15. Gestion by intrometting with the Defunct's Charter Chest.
• 16. Item, by intromission with Sums due to the Defunct, or doing any Deed, that may transmit the Defunct's Right.
• ...

• ... 17. This passiive Title excluded, unless established in the behavers in the behavers life∣time.
• 18. How far Heirs Portioners, behave∣ing as Heirs are lyable, and whether behaving as Heir ex∣cluds the benefit of 〈◊〉〈◊〉 and relief competent to Heirs actually entering.

GESTIO PRO HAEREDE, is the apparant Heirs disorderly Entry, and immixing himself with the Heritage, with∣out order of Law: and therefore it gives him no Right nor Active Title, as Heir, but makes him only Heir, 〈◊〉〈◊〉, whereby he represents the Defunct in all his Debts and Burthens, and is lyable for them all.

2. This passive Title, as Spots. ob∣serves, was but introduced by the Lords of Session, and was not before the insti∣tution of the Colledge of Justice; the apparant Heir being only lyable for restitution of the single value former∣ly. As was found in the case of an Heir's Intromission with the Heirship moveable. November 14. 1546. Janet Seatoun Lady Dirlton contra Anna 〈◊〉〈◊〉.

3. The reason of introducing this passive Title, is in favour of Creditors, that they be not un-satisfied, or shifted by the heirs of the defunct Debitors: who, if they might continue possession of their Predecessors Means, and Estate, and be but countable; would rarely enter, and hundle up their Intromission, and with time ascribe it to singular Titles, abstracting their Predecessors Rights. And therefore it is an expedient Custom, that they should either enter le∣gally, and for good and all; or that they should wholly abstain. Especially seing the Law allows them a year, to enquire into the condition of the De∣sunct's heretage, whether it will afford them losse or gain: during which time they may deliberat; and if they abstain, can be troubled by none. So that though it may seem rigourous, for a small Intromission to make the Intro∣metter lyable for all the Defunct's Debts, how great soever; Yet it being so easie to abstain, and the hazard known; the Expediency and Favour of the Creditor, proponderateth the wilfull Disadvantage of the Debitors Heir.

4. In this Title the Lords have always taken great Latitude, and some∣times have found smal Intromission not relevant, to infer this Title, in odions 〈◊〉〈◊〉 November 6. 1622. Laird of Dundas contra Hamilton of Peill. Where a Decreet of Spulzie of Tiends being obtained against Peill's 〈◊〉〈◊〉, and never insisted in, till in his time he was convened as Heir to his Father, who had behaved himself as Heir to the Good-sire, in so far as he had entred and dwelt in the house of Peill: and there being, in the house, the Good∣sire's

best Board, standing Bed, and brewing Caldron; he used the same, by eating at the Board, lying in the Bed, and brewing in the Caldron: and de∣sivered the Good sire's Beiff Pot to a Flesher, for Flesh furnished to the De∣fender's Father: the Defenders Mother having keeped possession of these Heir∣ship Goods for five years before.

5. Yet this Condescendence was not found relevant in this Case, The passive Title was not established before the Defender's Father's Death. As the Lords lately found, That these passive Titles, quae sapiunt delictum, should not be competent after the Intrometter's Death. It was also thought by the whole Lords, after dispute in presentia upon this Title, That it takes only place, where there appeared the apparant Heir's animus immiscendi, & adeundi haere∣ditatem; and not where he hath any probable, or colourable Title. Spots. Heirship, Corser contra Durie. Yet in favourable cases, a smal Intromission was sustained as making use of the Defnuct's chief Bed and Board, though stand∣ing in the Defunct's House: seing the Heir entred the House, before he ob∣tained Inventary of the Moveables, made by authority of a Judge; though the House belonged to himself proprio jure. March 8. 1610. John Bailzie con∣tra Hoom of Bassenden. Or by Intromission with a Mazer Cup of the De∣funct's, and drinking therein; entering in the House when he died; lying in his Bed and bed Cloaths standing there; and wearing his Silk Stockings: though all these were undisposed upon, and that the Defunct's Mother, who had given them to her Son, had medled therewith, who died in a Chamber belonging to his Mother, and his name was upon the Mazer. January 15. 1630. Cleghorn contra Fairly.

6. There are two Cases of Behaving as Heir, viz. Intromission with the moveable Heirship, and Intromission with the Lands, Teinds, Tacks, or other Rights which might have belonged to the Intromitter as Heir. In both which cases the Intromission will not infer this passive Title, unlesse the Intrometter might succeed in the same particulars. And therefore the appar∣ant Heir of Line and no other, can be lyable by Intromission with Heirship moveable, because the same can only belong to the Heir of Line. So the Intromission with Rents of Lands, Tiends or Tack, will not infer gestionem, unless by the apparant Heir, who would succeed therein, according as they are provided to Heirs of Line, of Conquest, Heirs male, or of Tailzie, or Provision. Neither will any other Intromission be relevant, but what is immediat, or by express Warrant, Command, or Ratihabition.

7. A Tutor or Curator's Intromission will not infer gestionem upon his Pupil, unless he accept the same from the Tutor in his Accompts. Nor the In∣tromission of one having a general Commission, as Factor, &c. It was so found in the Case of a Tutor's Intromission with the Rents of the Pupil's Predecessor's Lands, for the restitution whereof he was only found lyable. Nevember 3. 1665. David Boyd contra Tailzfair.

8. Behaving as Heir by Intromission with the moveable Heirship, is most unquestionable, when the said moveable is chosen, drawn, and separat by the Heir from the remanent moveables. In which case the apparant Heir will not be admitted to alledge, that the Defunct could not have an Heir or Heir∣ship moveable, when he formerly drew the same. July 13. 1631. Laird of of Gadgirth contra Laird of Auchinleck. But it seems very hard where the apparant Heir's choice of such particulars as the best of every Kind for her

Heirship, doth not evidently appear: for that must be accounted the best, which is such in the opinion of the apparant Heir. And yet in favourable Cases Intromission with any Kind of moveables, out of which Heirship may be drawn, will be found sufficient, and repute as the Heir's choice. As the apparant Heir's making use of his Fathers Board, lying in his Bed; though he disposed not thereof, and though the same were standing in a House dis∣poned to him by his Father before contracting of the Debt pursued on: seing he continued two years in possesion, and got no Warrant from the Lords, or made any Inventary thereof. July 14. 1626. Gilbert Johnston and Masson his Spouse contra Masson. The like by making use of the Defunct's Bassin, Silver Spoons, Timber Beds and Boards, without alienation thereof: though the beginning of the Intromission was, when the Intrometter was not ap∣parant Heir himself, but was Tutor to another Heir who was Idiot: seing he continued five years after the Idiot's Death, himself being then apparant Heir. January 17. 1627. Frazer contra Monimusk. Yet the contrary was found, where the Intromission began before the Intrometter was apparant Heir, there being a nearer apparant Heir: though it continued after that nearer apparant Heir's Death, when the Intrometter was apparant Heir. July 〈◊〉〈◊〉 1629. Mr. Robert Cuuingham contra Moultry. Yea, Behaving as Heir was su∣stained by Intromission with certain Goods of the Defunct which might have been Heirship, though they were confirmed promiscously by an Executor, and bought from him by the apparant Heir. But this Executor was his own domestick Servant, and confirmed to his own behoof. December 16. 1630. Weir contra Ker of Cavers. The like where the Heirship Goods were sold to the apparant Heir by a stranger: seing they were not delivered to that strang∣er, but possest by the Defunct till his Decease, but his possession continued by the apparant Heir. Nicol. Plus valet quod agitur. Feb. 9. 1621. Melvil contra Melvil. But the contrary was found, the Goods being disponed by the Defunct to the apparant Heir, albeit not delivered before his death, other∣ways than that the Defunct being un-married, came to his Son's House, and lived with him till his death. January 30. 1630. Calderwood contra Porteous. Neither was the same inferred by a Disposition of the Defunct to his apparant Heir of certain moveables, in satisfaction of his Heirship moveables where∣unto he might succeed. Feb. 24. 1636. Meidhope contra Hepburn.

9. The ordinary Objections and Exceptions against Behaving as Heir by Intromission with the Heirship moveable are; First, That the Defunct was neither Prelat, Baron, nor Burgess, to whose Heirs only Heirship moveable is competent by the Act of Parliament: the extent whereof is shown in the former Title. And therefore the Pursuer must condescend, and instruct that the Defunct was either Baron, Prelat or Burgess: which would besufficient∣ly instructed by the Defunct's Infeftments of Lands or Annualrents, at any time: for thence it would be presumed that he continued undenuded till his death, semel baro semper baro presumptivè. And this will be elided by this Ex∣ception, That the Defunct was denuded before his Death. For though some have been of opinion that semel baro semper baro is meant, that though a Per∣son once infeft were denuded; yet his Heir would have Heirship as a Baron. For which I find neither Reason nor Decision: But it is most reasonable that he who is once proven to be a Baron, should be presumed so to continue, un∣less the contrary were proven, that he was denuded, It was so found January 27. 1636. Straiton contra Chirnside. But if the Legal was not expired at the Defunct's Death, he is not esteemed denuded: and therefore his Heir hath Heirship. Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis. July 8.

1628. Dumbar contra Lesly. Neither will it be sufficient that the Defunct was once Burgess, but itmust be proven that when he died he was acting as a Burgess. So that neither the Heirs of honorary Burgesses, nor they who once were traf∣ficking Burgesses and take themselves to a Country Life, their heirs, will have heirship moveable. And therefore semel civis semper civis is not presumed. Neither semel paerlatus semper praelatus: for if a beneficed Person were de∣prived or demitted before the Death, his heir would have no heirship moveable.

10. The second Defense against Intromission with heirship moveable, and which is also competent against Vitious Intromission, is, That the Defunct died Rebel, and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit. June 10. 1663. Gordon of Lismoir contra Keith. June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount. December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun. And It is not necessa∣ry to alledge, That the apparent heir had any Right or Tollerance from the Donatar. For the Exception is equiparat to Executors confirmed, against Vitious Intromission: whereby Vitious Intromission is excluded, albeit the Intromission was before another was confirmed Executor, if the Confirmati∣on was before intenting of the Creditor's Cause. But it is no relevant De∣fense, That the Defunct died Rebel, and so had no moveables, but that they were confiscat. Neither was it sufficient that the Escheat was gifted, not be∣ing also declared, before the Creditor's Pursuit. As was found in the said two first Cases.

11. The third Defense is, That the apparant Heir intrometted by a Gift to himself, or to his behoofe; or by a Right or Tollerance from a Dona∣tar. These being prior to the Creditor's Pursuit, although posterior to his Intromission, albeit not declared, are relevant: because the Donatar there∣by is in possession, and needs no Declarator. Feb. 26. 1663. Cuthbirt of Drakies contra Monro of 〈◊〉〈◊〉. June 10. 1663. Gordon of Lismoir contra Keith. July 4. 1674. Mr. William Innes contra George Wilson. June 10. 1674. Lady Spenserfield contra Hamilton. of Kilbrachmont. Feb. 10. 1676. Grant contra Grant.

12. The fourth Exception is, When Moveables belonging to a Defunct, remain in his House whereunto his apparant Heir hath Right by Infeftment, wherein the Defunct had his Liferent or Tollerance: if the Heir enter in possession of the House, if at his entry he represent to any competent Judge, that there are Moveables in or about the House belonging to the Defunct, which he desires to be inventaried, or that such as cannot be preserved may be sold, that the price may be made forthcoming to all parties having interest; if Inventary or Sale be made by warrant of that Judge, the continuing of these Moveables in the House, or the Sale of those which cannot be preserved, will not infer Behaving as Heir. Yet the making use of the things in the In∣ventary, or the Sale of that which is not warranted; yea the ommission out of the Inventary of Moveables of any considerable value, was found to infer Be∣haviour. January 25. 1632. Helen Scarlet contra John Paterson.

13. The other ordinary member of Behaving as Heir, is by Intromission with the Rents of Lands, or Tiends, whereunto the Defunct had Right by In∣feftment; or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed, which is the most direct Behaviour as Heir;

and is only competent against such persons as might be Heirs in that wherein∣to they immix themselves. And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male, or to Heirs of Tailzie or Provision; or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line; will only infer Restitution or Reparation: but will not infer a general passive Title, making the partie lyable to all the De∣funct's Debts.

14. There are many Defenses which use to be proponed against this species of Behaviour. As first, it was an ordinary custom to shun this passive Title, that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right, upon the apparant Heirs Renounciation, and then take Right to the Adjudication: till the Lords by an Act of Sederunt, Feb. 28. 1662. did declare, that if apparant Heirs should in time coming, take Right to any Ap∣pryzing or Adjudication of their Predecessors Rights for their own Debt, and did 〈◊〉〈◊〉 thereby, whether before or after expyring of the Legal; they should be lyable as behaving as Heirs: which hath always since been fol∣lowed. And therefore no Defense for such Rights will be sustained, albeit it were a true Debt of the apparant Heirs, and not a simulat Bond granted of de∣signe to adjudge or apprise.

Neither is it a relevant Defense, That the Lands or Teinds were appryzed or adjudged from the Defunct, albeit Infeftment had followed thereupon; if the heir apparant intromet without Right, or Warrant from the Appryser or Adjudger, within the Legal. Feb. 21. 1663. Henrie Hamilton contra Wil∣liam Hamilton. But it is a relevant Exception, That the apparant heir's In∣tromission or possession was by Right from an Appryser or Adjudger, though the Legal was not expired: unless the Sum were fully satisfied by Intromission or otherways. January 10. 1662. Barclay contra Laird of Cragievar. The like though the apparant heir continued to possesse, for some time after the Apprysing was satisfied by Intromission. Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis. Yea Intromission with the Rents of the Defunct's Land by his apparant heir, waselided by a Tollerance from a Donatar of Re∣cognition, albeit not declared till after his Intromission; the apparant heir paying the single value of his Intromission. July 17. 1666. Thomas Ogilvie contra Lord Gray. But a Tollerance from Apprysers after their Intromis∣sion, was not found relevant, July 11. 1671. Sr. George Maxvell contra Maxvel. Yet the apparant heir's Intromission was elided, because the De∣funct's Rights were improven, though after the Intromission. March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch. And an apparant heir's Intromission was elided by a colourable Title, though not valid, where∣by the heir of a Marriage being entered and infeft as heir to her Mo∣ther, yet her Infeftment being reduced, and her Father being found Feer in a dubious provision of Conjunct-fee; the heir so served, was not found liable, as behaving as heir to her Father: but only quoad valorem of her Intromission. July 12. 1671. Adam Gairns contra 〈◊〉〈◊〉 Sandielands. But it was not elided because the apparant heir past by his Father, and was infeft as heir to his Good-sire, though his Father was infeft: that colourable Title was not sustained the apparant heir being in mala fide, having the Evidents in his hands. November 23. 1671. Rorieson contra 〈◊〉〈◊〉. Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands, which his predecessor had disponed in trust to a third party, for the behoofe of the apparant heir, and whereupon the Intrusted was infeft. January 14. 1662. Nicol contra Home of Plander∣gest.

But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son, his Oye, though without Infeftment: or by a Tack to the apparant Heir's Husband, though expired before the De∣funct's Death; as being continued per tacitam 〈◊〉〈◊〉. January 16. 1667. Reid contra Salmond.

Behaving as Heir was inferred by the apparant Heir's entering in possession of a Coal-heugh, whereof the Defunct had Tacks for Terms to run: albeit the apparant Heir took a new Tack. June 26. 1610. Atchison contra Laird of Cockpen. The like though the apparant Heir took a Gist of the Defunct's Es∣cheat, who had an unexpired Tack of the Lands, and pretended to possess as Donatar to the single Escheat. June 28. 1610. Crawford contra Cockpen.

15. Behaving as Heir was also inferred by the apparant Heir's giving a Re∣ceipt of the Defunct's Charter Chest, and keeping it two Years without Pro∣testation, or Inventary. June 28. 1670. Ellis of Southside contra Carse.

16. Behaving as Heir will also be inferred by Uplifting or Discharging Sums, Principal or Annual, which would befall to the Party Heir: or by doing any Deed that might transmit the Defunct's Right. But it was not found inferred by the apparant Heir's Renouncing to be Heir in favour of the Heir Male, to whom their Father had disponed: seing they gave no Right thereby hurtful to Creditors; though they got a Sum for their Kindness and willing Renounciation. July 5. 1666. Lawrence Scot contra Heirs of Auchin∣leck. Neither by the apparant Heir's getting benefit by a Transaction with a Party having Right from the Defunct, granted on Death-bed, and being obliged to acquire the Defunct's Debts, and apprise thereon, and to commu∣nicate the benefit of the Apprising: unless a Deed had been done commu∣nicating any Right of the Defunct. July 19. 1666. Margaret Nevoy contra Lord Balmerino.

But Behaviour was not inferred by the apparant Heir's taking out of Brieves: seing the same were not served. June 28. 1670. Ellis of Southside contra Carse. Neither was it inferred by proponing Payment of the Defunct's Debts, and succumbing: which is only effectual as to that Process. July 16. 1629. Mur∣ray contra Ross. January 21. 1675. James Tailzifer contra John Corsan. Nei∣ther was it inferred by the apparant Heirs voluntary Payment of their Prede∣cessor's Debt. January 26. 1628. Commissar of Dunkel contra Abercromby.

17. There is the same ground for excluding this passive Title, unless it were established against the apparant Heir in his own life, as to exclude vitious Intromission: which hath frequently been repelled when not established in the Intrometter's life.

18. It remains now to consider, Whether Behaving as Heir being a vitious passive Title, will import more than if the apparant Heir had been actually en∣tered: which may occur in two Cases; First, where Heirs-portioners behave themselves as Heirs, whether they will be lyable in solidum, or only pro rata? 2. Whether those who behave themselves as Heirs, will have the same benefit of the order of Discussing and Relief, as if they were actually entered.

As to the first Case, the Behaviour of Heirs-portioners cannot oblige them in solidum, but in so far only as if they were actually entered Heirs: which is always pro rata parte, according to the number of the Heirs-portioners, non

per capita, sed per stirpes, But as it hath been yet undetermined whether Heirs∣portioners may be lyable for more than their share of the Debt, not exceeding their share of the benefit to which they have succeeded; there is no question but if Heirs-portioners behave as heirs, they would be made lyable quoad va∣lorem of their Intromission, if it did exceed their share.

As to the other Case, Behaving as heir being a vitious passive Title, they will not have the 〈◊〉〈◊〉 of Discussing: which is only competent to heirs law∣fully entered. Yea they will not have Relief from the heirs who are lyable before them: because they have in their Person no active Title. Yet it is in arbitrio judicis to ordain the Creditor, on satisfaction to assign his Right, by which the heir behaving may indirectly attain Relief, as Assigny by the Cre∣ditor This favour will not be refused, unless the manner of Behaviour be very odious: as when it is fraudulent, by concealing the Immixtion; or that the Creditor himself having an other Interest, may be prejudged by his Assig∣nation. And therefore heirs behaving, if distress'd for moveable Debts, they have no direct recourse against Executors. And if the Executory be mean, so that there be small provisions for the Wife and Children; the Creditor would not be ordained to assign. And it may so fall out in other Cases. The same Rea∣son may occur, where heirs of Conquest, or heirs Male, of Tailzie, or Pro∣vision behave; if the prior heirs who are nearer of Blood have little benefit and provision.

TITLE XXIX. Lucrative Successors.

• 1. The rise of this passive Title.
• 2. It takès place though the Disposition bear Cause onerous, 〈◊〉〈◊〉 it be o∣therwise instructed.
• 3. It is extended to Dispositions in Con∣tracts of Marriage, in some Cases.
• 4. Lucrative Dispositions of any part of the Heritage inferre this passive Title.
• 5. This Title is extended to Dispositi∣ons made to Oyes, though then not immediate apparant Heirs; but not to Brothers, though none then nearer.
• 6. Whether it suffiseth to infer this Title, that the Infeftment was after the Debt; or if the Disposition where∣on the Infeftment proceeds, must also be after.
• 7. Cases in which this Title takes no place.

THERE is no Nation hath been more fa∣vourable to Creditors, or more studious of their satisfactions than this; which hath anticipate all Conveyances, Devices, and Frauds prejudicial to Creditors, either in favour of singular Successors by simulate Assignations or Dispositions, without equi∣valent onerous Causes: or in favour of apparant heirs, that they might in no way enjoy their Predecessors 〈◊〉〈◊〉, without satisfying their Debt; which hath given the rise to this passive Title, whereby ap∣parant heirs accepting Dispositions from their Predecessors, of their Heretage wherein they would have succeeded, or any part thereof, are made lyable to all their Predecessors Debts, contracted before such Disposition or Right. And the acceptance thereof is accounted praeceptio haereditatis, and as an Im∣mixtion

with the Inheritance, makes the apparant heir to represent the De∣funct passivè. Yet with this temperament, that he shall be lyable only to the Debt contracted before the Disposition or Right made to him by the Defunct, in which Right he might have succeeded. Wherein apparant heirs are most ex∣pediently differenced from the other singular Successors without onerous Causes, that these are not ordinarly personally lyable, except in so far as they have disposed of such Rights as were fraudulently disponed to them in Trust, and in which they were interposed Persons to the behoof of the Disponer or his Children; but these Rights are alwayes reduceable at the instance of an∣terior Creditors. But because such Fraud is more incident to apparant Heirs, therefore these are personally lyable for the whole anterior Debts, and the Right granted by them may also be reduced upon the Statute 1621. Yet the personal Obligement doth remain and both are compatible: Hope, Successor Lucrative, Gray contra William Burgh.

2. This passive Title is not only extended to Dispositions of Lands bearing expressly a lucrative Title, as for Love and Favour, &c. but though the Nar∣rative thereof bear expressly a Cause onerous, which being betwixt the Di∣sponer and his apparant heir proves not: and therefore the Cause onerous must be proven aliunde. Vide Title Reparation upon Circumvention: where the Narrative of Writs amongst conjunct and confident Persons, proves not the Cause to be onerous. And though there be a Cause onerous instructed, it will not be sufficient, unless it be equivalent to the worth of the Lands, to substain it against Reduction: but if the Cause onerous be considerable, the heir will not be lyable simply, or personally, but the Right may be reduced, and the heir may be lyble in quantum est lucratus. And therefore an appa∣rant heir having accepted the benefit of a Disposition and Infeftment, granted by his Predecessor to a third Party, but to the apparant 〈◊〉〈◊〉 behoofe; the Lords before answer ordained the Cause onerous of the Disposition to be in∣structed, reserving to their consideration how far the apparant heir should be lyable personally thereby. January 14. 1662. Nichol Harper contra Hume of Planergest. The like of a Disposition of Lands by a Mother to her apparant Heir, though it did bear a Sum of Money: which did not prove betwixt Mother and Son. February 15. 1676. Patrick Hadden contra George 〈◊〉〈◊〉. The like was found of a Disposition by a Father to his Son and apparant heir, though the Son offered to prove it was for equivalent onerous Cause: seing the Disposition it self did bear for love and favour and other good Conside∣rations. November 22. 1671. Beaty contra Roxlurgh. But Bonds of Provision by Parents to Children infer no passive Title, though the Children be Heirs apparant. As when the Bonds are granted to the eldest Son, or Bonds of Pro∣vision, or a Tocher to Daughters, when there are no Sons, though in that Case the Daughters might be esteemed heirs apparant, although truly they be not; for a man is ever understood to be capable of having a Son: and there∣fore Daughters are little more heirs apparant than Brothers. Yet Bonds of Provision or Tochers are reducible by anterior Creditors, if the Defunct had not a visible Estate sufficient for these Portions and his whole anterior Debts. And therefore accepting a Tocher did not make a Daughter lyable as lucra∣tive Successor, though there was no Son; yet the Daughter and her Husband were found lyble to the Father's anterior Creditors, for what was above a competent Tocher, suteable to the Parties. December 23. 1665. Dame Rachel Burnet contra Lepers. Neither will taking Bonds in the name of the Daugh∣ters, or assigning Bonds to them, make them lyable as lucrative Successors. And yet the accepting of Assignations to heretable Bonds by a Father to his el∣dest

Son, in which the Son would succeed as Heir, may inferre this passive Title. December 2. 1665. Edgar contra Colvil. But where the Father in his Contract of Marriage provided his Son to several Bonds, which before any Creditor pursued, were payed and cancelled, and it did not appear by the Contract whether they were heretable or moveable; the Lords did not su∣stain the passive Title, but found the Son lyable in quantum 〈◊〉〈◊〉: and did presume the Bonds to be heretable, unless they were proven to be moveable. January 7. 1679. Hamilton of Burdowie contra Mr. Andrew Hay. But a Dispo∣sition of Lands to the eldest Son, was found to make him lucrative Successor, although by his Father's Contract of Marriage with his Mother, his second Wife, the Father was obliged to infeft the eldest Son of the Marriage in the said Lands; which did import a Succession: seing the Obligement contained no determinate time, and so might be performed by the Father any time in his life. November 29. 1678. Hagens contra Maxwell. The like was found in a Di∣sposition of Lands or Annualrents to the eldest Son of the Marriage: seing these were provided to the Heir of the Marriage. February 22. 1681. Grizel More contra Ferguson. The Disponer's Bairns Portions are not a Cause onerous, be∣ing granted after the Creditors Debts; albeit undertaken and secured by the apparant Heir, bona fide, before any Diligence at the Creditors instance; not being payed before the Pursuit: ibid. because the Heir may suspend upon double Poynding, and will not be made to pay both the Bairns and Creditors.

3. This Title is extended to Dispositions granted in the apparant Heirs Con∣tracts of Marriage, which in many respects is accounted a Cause onerous. July 8. 1625. Gray contra William Burgh. Where the Son was not liberat, though he offered to renounce the Lands he had by Contract. And it was found that Lands being disponed and resigned by the Father in favour of the Son, by his Contract of Marriage, though they were for the present wadset and disponed with that burthen, and thereafter redeemed by the Son by his own means, so that there remained nothing in the Father, but the Superiority and the 〈◊〉〈◊〉; yet the Contract of Marriage was found onerous as to the Wife's Luerent. And in respect the Son was Minor and presently revoked the Disposition, and renounced all other Rights, except that of the Wadset which he had redeemed; he was liberat of the passive Title, and the Lands declared redeemable by any Creditor anterior to the Contract. January 14. 1634. Mr. David Courtney Minister contra Weems of Lothoker. In the like Case, where Lands were disponed by a Father to the Son in his Contract of Marri∣age, for a Tocher payed to the Father for some Debts and Bairns Portions far within the worth of the Land; the Son was not found lyable in solidum as lu∣crative Successor, nor yet the Pursuer put to a Reduction: but the Son was in hoc processu put to compt and pay the superplus of the true price of the Land. June 17. 1664. Lyon of Murask contra Bannerman.

4. This Title takes place not only in universal Dispositions, of the Prede∣cessor's whole Estate; but a Disposition of any part thereof, is sufficient: seing the least as well as the most, is praeceptio haereditatis.

5. This Title is extended also not only to Dispositions made to, and accepted by the immediate apparant Heir; but also to the mediate apparant Heir, so that he be alioqui successurus, by the course of Law, necessarly: as what is granted to the eldest Son of the apparant Heir. Because the ground of this Title being to prevent Deeds in favour of the Disponer's Successors, prejudicial to the Dis∣poner's Creditors, whose Debts are anterior; the reason holds as much where

he dispones to his Oye, who by the course of Law is to succeed to him, as to his Son. 2. It is Praeceptio haereditatis in the Oye aswell as in the Son. And therefore the Rule in this Title is not, that the Accepter be that Person who would succeed at the time of the Disposition, and so may seem to be immediat apparant Heir pro tempore: for so a Disposition by one Brother to another, or to a Brother's Son, the Disponer for the time having no Children; will not inferre this Title. November 22. 1662. Lawrence Scot contra David Beswell of Auchinleck, Nephew to umwhile Auchinleck. December 22. 1674. Heirs of Seatoun of Blair contra Sir Alexander Seatoun. The like though the Disponer was an old man, the time of the Disposition, and had little hope of Issue. De∣cember 17. 1632. Lady Spenserfield contra Laird of Kilbrachmont. The rea∣son is, because the Brother or Brother's Son is not alioqui successurus by the course of Law, while the Brother's Children are in spe: and therefore such are never called apparant Heirs; neither is the presumption in them, that the De∣funct would, in prejudice of his Creditors, adventure simply to dispone to such, while he had hope of Issue: but all this holds in Oyes. And it was so decided January 29. 1639. Lady Smeatoun contra Richardson of Smeatoun: where an Infeftment was granted by the Good fire to the Oye, reserving his Son's Life∣rent. And in the like Case, the Father who was but Liferenter, and his Oye Feer, by the Grandfather's Disposition, was found lucrative Successor. Fe∣bruary 23. 1637. Lightoun contra Laird of Kinaber. But this Decision was stopped to be further heard.

6. But here occurreth the Question, If the Disposition be anterior to the Debt contracted, but the Infeftment posterior to the said Debt; quid juris? The ground of Doubt is, that though the Defender had a prior Disposition, yet by the Infeftment only, he was Successor: seing Lands pass not by Dispositions, but by Infeftments: and therefore he was clearly Successor post contractum debitum, and also ex causa lucrativa. 2. If this were not the meaning, the intent of the Law would be frustrate: for it were easy to make Dispositions and to keep them up, and in the mean time to contract Debts, when the Creditors could not know the Debitor's condition, and so contracted bonafide. This Case was not decided: but the like Case was formerly decided negativè, that the Infeft∣ment though posterior to the Debt, did not inferre this Title; being upon a Di∣sposition anterior to the Debt. February 23. 1637. Lightoun contra Laird of Ki∣naber. The like was found, where there was an Obligement in a Contract of Marriage, to dispone Lands, prior to the Debt contracted: albeit both the Disposition and Infeftment were posterior to the Debt, and did not bear ex∣pressly in implement of the Contract; which was presumed, seing no other Cause was showen. July 27. 1678. Thomas Ferguson contra Lindsay of Wauchope. For answer to the contrary Reasons; the first is upon misapplication of the words, post contractum debitum: which are not to be referred to Successor thus, successor post contractum debitum ex causa lucrativa; but successor ex titulo lucra∣tivo, qui titulus est post contractum debitum. So that if the lucrative Title be not after the Debt, this Title takes no place. As to the other reason, the same inconveniency will be of Dispositions to Strangers, which being keeped up, Creditors may contract bona fide. And yet Inhibition before Infeftment will not be effectual, unless it preceed the Infeftment and the Disposition: which will also be effectual against the apparant Heir. But if there be fraud in keep∣ing up such Dispositions, which will be easilier presumed in the person of the apparant Heir, than a Stranger; it will be sufficient upon the common reason of fraud, to reduce the Infeftment, though the general passive Title be not inferred. The like was found where there was an Obligement in a Contract

of Marriage, to dispone Lands, prior to the Debt contracted: albeit both the Disposition and Infeftment were posterior to the Debt, and did not bear expressly in implement of the Contract; which was presumed seing no other Cause was showen. July 23. 1678. Thomas Ferguson contra Lindsay of Wau∣chope. And lucrative Successor was not found inferred by the Infeftment of a Father to his apparant Heir after the Debt contracted: seing there was an anterior Obligement in the apparant Heir's Contract of Marriage, to grant the Infeftment, and Inhibition thereupon. Nicol. de haereditariis actionibus. March 31. 1626. Ker contra Sterling.

7. This Title can take no place, first, where the Party to whom the Right is granted is not alioqui successurus in that same Right: because it cannot be praeceptio haereditatis where there can be no haereditas. And so a Disposition to an heir of Tailzie, of Lands not provided to that heir of Tail∣zie, cannot inferre this Title: though it may be reducible, as without a Cause onerous. Neither will a Disposition of tailzied Lands to an heir of line, in∣ferr this Title. For in that case it cannot be praeceptio haereditatis: albeit the Disposition will be reducible, as without a Cause onerous. But there is more reason, that Rights acquired originally by Predecessors, in name of their apparant heirs, cannot infer this Title: because the Predecessor himself ne∣ver being Feer in that Right, the apparant heir could not be his Heir there∣in. Neither can such Rights be reducible by the Act of Parliament, 1621. because the falling thereof, will not make the Fee return to thePredecessor who never had it: but the same can only be reached by a Declarator, That it was acquired by that Predecessor's means, after the Debt contracted; and therefore ought to be affectable, as if it were in the person of the Debitor, or his heir: which hath frequently been found relevant.

TITLE XXX. Executorie, Where, of Testaments, Codi∣cills, Legacies, Relict's part, Bairns part, Dead's part, Con∣firmations, and Office of Exe∣cutorie.

• 1. The Romans carfeulnesse to pre∣serve the freedom of Testing.
• 2. The ancient form of Testing amongst the Romans.
• 3. The modern form of Roman solemn Testaments.
• 4. Their nuncupative Testaments.
• 5. Their military Testaments.
• 6. Requisits for Roman Testaments.
• 7. How far Sons in familia could Test.
• 8. Persons who could not Test.
• 9. Persons who could not be institute, or substitute.
• 10. Restriction of the freedom of Test∣ing, in favour of Children.
• 11. The Legittimes ofChildren.
• 12. The Falcidian portion.
• 13. The difference of the Legittime and Falcidian.
• 14. The Trebellianica.
• 15. Fidiecomissa.
• 16. Codicills.
• ...

• 17. Institution of Heirs.
• 18. Substitution.
• 19. Substitutions vulgar and pupillar
• 20. Legacies.
• 21. Legacies are void if the Legatar die before the Testator, or if the Testament be void; unless there be therein a codicillar Clause.
• 22. The Kinds and Effects of condi∣tional Legacies, or Fideicommissa.
• 23. Special Legacies.
• 24. Conditions adjected to Legacies in Fideicommissa.
• 25. The Inventary.
• 26. Collation.
• 27. Jus accrescendi.
• 28. The Power of Testing with us may be restricted by Contract or Portion.
• 29. It is restricted to Moveables, and extends to no heritable Right.
• 30. Wherein the Office of Executors consists.
• 31. The nearest Agnats are Successors in Moveables to the Intestat.
• 32 The line of Succession in Moveables.
• 33. The Nomination of Executors, and Codicills.
• 34. Solemnities requisit in Testaments with us.
• 35. The Effects of Testaments made a∣broad.
• 36 Verbal Legacies.
• 37. The Power of Testing is competent to Minors having Curator, with∣out their Consents, and to Wives without their Husbands Consent: but not to Pupills, Idiots or furi∣ous persons.
• 38. Legacies with us.
• 39. Legacies and Donations mortis causâ are proportionally abated if they exceed Dead's part.
• 40. Whether special Legacies will be so abated.
• 41. The Effect of Legacies of things not in the power of the Testator.
• 42. The Effect of Legacies left sive∣rally.
• 43. The Relist's part of the Executory.
• 44. The Bairns part.
• 45. What Foris-familiation is.
• 46. Collation by our Custom.
• 47. Sums bearing Annualrent without Clause of Infefiment, fallin Executory as to the Defunct and his Children, but not as to the Relict.
• 48. Heirs have no benefit of the Bairns part, except they renounce in fa∣vour of the remainent Bairns.
• 49. If there be but one Childeun-foris∣familiat, the same is both Heir and Executor, and has the full Bairns part.
• 50. The Executory is divided as it was at the Defunct's Death, and the time of the Confirmation.
• 51. The interest of the nearest of Kinne
• 52. Dead's part.
• 53. The interest of Executors nominat, and Dative.
• 54. The Order of confirming Execu∣tors.
• 55. How Executors nominat in Eng∣land are admitted here.
• 56. Licences to pursue.
• 57. Executors interest, as to the Rent the year the Defunct died.
• 58. Executors have Right to Steell∣how Goods.
• 59. Co-executors and their power.
• 60. The Effect of Executors Assignati∣ons before Sentence.
• ...

• 61. Executors ad non executa.
• 62. Executors ad ommissa & malè appretiata.
• 63. Executors Creditors.
• 64. How far Executors are lyable pas∣sivè, and of their Diligence.
• 65. The Releef betwixt Heirs and Ex∣ecutors.
• 66. How Executors may safely pay Cre∣ditors.
• 67. What time Executors have to do Diligence, before they be lyable to Creditors.
• 68. All Executors, and Creditors doing Diligence within six months ofthe Defunct's Death, come in pari passu.
• 69. After six moneths, Creditors come in according to the priority of their Diligence.
• 70. Executors paying Relicts, Bairns and Legatars, after 6. monethes, and before Citation of Creditors, are secure; and the Creditors have only Repetition against these.
• 71. Executors after obtaining Bond or Decreet, are not in Pleno domi∣nio, of the Defunct's goods: nor do they fall under the Executors Escheat, but the Defuuct's Credi∣tors are preferable to the Executors proper Creditors.
• 72. Executors may pay priviledged Debts, at any time.
• 73. Arrestments hinder the Executor to prefer any other Creditor.
• 74. Compensation is not competent to the Defuncts Debitors, upon Debts due by the Defunct, assigned after the Defunct's Death.
• 75. Exoneration of Executors.
• 76. Exhaustine ofExecutors, how com∣petent.
• 77. The Diligence necessary to liberate Executors: Executors are not oblig∣ed to depone upon their Knowledge of the Defunct's Debt, except as to their own Share.
• 78. How farCo-executors are conveenable severally.
• 80. Executors furviving, are not lyable for the Share of the deceassed in so far as they executed the Testa∣ment, and lifted their part.
• 81. Executors are lyable for the In∣ventary, without proving their In∣tromission.
• 82. Where Testaments are to be con∣firmed.

REMAINS now the other Branch of Succession, viz. in Moveables: which is of two Kinds, The one of Executors, which is the only lawful Succession in Moveables, and therefore is both an active and passive Title; the other illegal and Vitious, and is therefore cal∣led Vitious Intromission, and is only a passive Title. Of the former in this Title, and of the later in the next.

The whole interest of the moveable Goods and Rights of Defuncts, is comprehended under the term of Executory, wherein not only that which proper to the Executor by his Office, or Succession, is contained; but also

that which befalleth to the Defunct's Relict, Children, and nearest of Kinne and to his Legatars and Creditors. We shall not here repeet what hath been said of Succession in general, of which at large in its proper place, Tit. 26. Where the rise and rule of Succession, both according to Equity and the Law of Nature; and according to the positive Law, and Custom of this and other Nations, is held forth. This much only in general; that the Will of the Owner is effectual in equity to dispose upon his Rights, ei∣ther to take effect during his Life, or after his Death. The former being compleat, constitutes a present Right, irrevocable by the Disponer: the later is ambulatory, and dependent upon the Owner's Will, and hath alwayes implyed in it the Condition of his Death; and therefore may be altered, abrogat, and derogat by a posterior Will. And thence it is called the Later∣will of the Defunct: because the Later-will is alwayes effectual, and pre∣ferable to the former Will. It is also more favourablie interpret and ex∣tended, than Contracts or Dispositions amongst the Living. And if there were no positive Law, the expresse or presumed Will of theDefunct would be the adequat Rule of his whole Succession.

But Succession being of great consequence, whereby all the Rights of men are at least once, and many times oftner, transmitted in every generation; therefore positive Law for utilitie's sake, hath justly and fitly preicribed the forms and solemnities thereof, that it may be clear and sure: and hath ap∣plyed remedies to make it effectual. And hath restrained the power of the Defunct's Will in some cases, especially in favour of the Defunct's Wife and Children, whom by the Law of Nature, he is obliged to provide. And hath also declared the Degrees of Succession, Meaning, and Presumption of the Will of Defuncts.

1. The Romans of all Nations, were most solicitous in this matter, and accounted it a publict interest; reipublicae interest, voluntates defunctorum effectum sortiri. And therefore they did exactly guard the power of testing, not only against Violence and Fraud, by severe Punishments, and exclusion from all benefit of Succession; but also they rejected and annulled all Pactions, restraining the power of testing, as pactum corvinum de haereditate viventis. Which was not only extended to Pactions made by Persons disposing of the Heretage of Persons, to whom they might succeed, but even to Pactions of Persons in relation to their own Heritage. They did also clearly determine what Persons had not the power of testing; and in whose favour Testaments might not be made; and the manner of all Kindes of Testaments, Instituti∣ons, and Substitutions of Heirs, Legacies, Fideicommisses, and the sense of most ordinary Clauses in all these: and also the Succession of the intestat. Which hath made the matter of Succession swel into a mighty bulk, and to make the chief Integral of the Civil Law; wherein to insist here, would nei∣ther be necessary nor profitable for our purpose: but as in other cases, a short Sum, without Ampliations or Citations, will suffice.

2. Succession amongst the Romans, was either by Testament, or from the intestat. The ancient way of testing amongst the Romans, was either in peace and solemne, which was done in presence of the People, being convo∣cat callatis comitiis: or otherways by a simulat Sale, per aes & libram; where∣in the Testator, in presence of five Witnesses Romans, did hold a Ballance, and weighed Money therein, and under that form, as it were, sold his In∣heritance for the Money, and asked Witnesses. Or otherwayes Testaments

were made in precinctu, when they were standing in Battaile before the Fight, without other Solemnity than three or four Witnesses.

This was the ancient form of testing. The matter and power of testing was very absolute, according to Equity: concerning which, this was the Law of the twelve Tables uti quisque rei suae legasset ita jus esto.

But the after-course of the Civil Law, changed both this ancient manner and power of testing, and redacted Testaments into three kindes, Solemne, Nuncupative, and Military.

3. Solemne Testaments were so called, because they required the most So∣lemnities: as First, That the Testaments were in writ, the Name of the Heir, at least, being written by the Testator, or one of the Witnesses. Se∣condly, There behoved to be seven Witnesses, specially required, all present, and subscribing by themselves, or another, and sealing the Testament at the foot thereof: none of which might be Women, Pupills, Servants, Prodi∣galls, or furious Persons; neither the Heir himself, or any of his Domesticks: each Subscription bearing. I Titus, &c. being called and required to be a Wit∣nesse to this Testament, which is contained in this Schedule, have subscribed it with my hand, and sealed it with such a Seal. Thirdly. The Testator also behoved to subscribe thus, I Mevius, &c. declare this Schedule to be my Testament, and I have tested as is contained therein: or by another if he could not write, who stood as the eighth Witnesse. Fourthly, The Testament behoved to be made by one continued Act, without interruption of any extraneous act, least by extraneous acts the mind might be diverted, or inconsiderat, in so solemne an Act. So the Testament was closed up, and sealed. And if the Testator opened the Testament, it was presumed he changed his mind. But after his Death, the Witnesses were called together, to acknowledge their Seals and Subscriptions, at the opening thereof. Or otherwayes it was opened by the authority of a Judge, before other honest Witnesses. And if any of the Wit∣nesses acknowledged not their Subscriptions, the Testament was held suspect.

4. A Nuncupative Testament is that which was by Word only, before seven Witnesses qualified as aforesaid. Yet two Witnesses were sufficient in a Father's Testement amongst his Children; and a Woman might be Witness therein. Or in a Testament for pious Uses, five Witnesses did suffice, where there was penurie of Witnesses.

5. A Military Testament, was that which was made by the Souldiers in Warre: wherein they had these Priviledges. First, when they were in pro∣cinctu, ready to joyn Battaile, any declaration of their mind, by word or writ, though it were written but in the sand, was sufficient. It was also valid, if made during the Expedition, with such Solemnities as can be had for the time: Yet so, that if the Testator lived a year, in which he might make it more Solemn; it became void. Military Testaments have this fur∣ther Priviledge, that the Testator may institute for a time, and may institute in a part, and so die partly testat, and partly intestate: which is against a Principle of their common Law.

6. The ancient absolute power of testing, was by the subsequent course of Law, cleared and restrained, not only by the declaratory Laws, finding

testing, and otheracts invalide, as done by furious Persons out of their lucid intervalls, and by Idiots, and by Pupills, who have not the use of reason; or those made by Fraud, or Error in the Substantialls, or by extortion: but more particularly it is limited in these particulars.

7. First, Filii familiâs, Persons in the power and family of their Fathers, could not test upon their Goods; whether profectitious from their Father, or ad∣ventitious aliunaè; even though their Father consented: but only on their bona castrensia, acquired in Warre; or quasi casirensia, as in militia togata.

8. Secondly, Captives with publict enemies, or Persons given in pledge to them; or Persons condemned to capital Punishment, whose goods are con fiscat; or those condemned of Infamy; could not test.

9. Thirdly, by Testament some Persons can neither be institute nor sub∣stitute Heirs, such as the spurious Children of the Defunct: to put a restraint upon such unlawful Procreations. But Children begotten on Concubins, while those were tollerat, could not be institute or substitute, (these being lawful Children) in more then a sixth part of the heretage. Only there could be left to spurious Children, Legacies for their necessary Aliment. Nei∣ther could Persons guilty or condemned of Treason, be institute or substitute Heirs.

10. Fourthly, power of Testing is restrained in those who have lawful Children: who were necessitat, either to institute their Children their Heirs, or expresly to exheredat or disheirish them, expressing the Cause of so do∣ing. For if these institute others, and past over their Children in silence, the Testament was void. And if they unjustly exheredated them, they had Quaerelam inofficiosi testamenti, to annul the Testament, as done against the natural Dutie of Fathers, without just Cause.

11. Fiftly, the power of Testing was restrained in favour of lawful Chil∣dren, that the Testator could not by Legacy or fidei commissum abate from the Children their Portions natural, due to them by the Law of Nature, oblig∣ing Parents to entertain their Children: which the Law defyned to be the fourth part of the Inheritance, Debts deduced, when there were fewer than four Children; a third part, when four; and a half when more. If there be no Children, this Legittima is due to the Parents, Grand Father, and Grand Mother; but not to Brethren, unlesse a base Person be institute. Which Portion natural the Testator could not prohibite the Children to with∣draw from the Heretage.

12. Sixthly, the Falcidian Law did restrain Legacies, that they might not exceed three fourth parts of the Inheritance: so that there behoved to re∣maine one fourth part to the Heir, which therefore was called portio Falcidia. And therefore if the Legacies did exceed three Quarters of the free Inheri∣tance, Debts being deduced; they were abated proportionally, that the Fal∣cidia might remain to the Heir.

13. This Portio Falcidia differs from the natural Portion in this, that the Testator could not prohibite the Heir to take the benefit of the Portion na∣tural; but he could effectually prohibite the Heir to take his Falcidia. The Reason whereof was, because the Falcidia was introduced, to the effect that

the Wills of the Defuncts might be execute: which could not be, if the Le∣gacies left nothing to the Heir considerable, but trouble, as oft-times it falls out. So that this being a Remedy in favour of the Testator, to make his Will effectual; he might prohibite it: and could not be presumed so irrational as to prohibite it, if he had not good ground to know that his Heirs would enter without it. Or indirectly, if the Testator prohibite the alie∣nation of the Heretage, the Law esteemed it as a prohibition of the Fal∣cidia.

The Falcidia had no place in Military Testaments, or in Legacies left to Pious Uses, or left to the Relict of the Testator, nomine dotis. The reason of these exceptions was in favour of Souldiers, Pious Causes, and Tochers. And if the Heir ommitted to make Inventary, he lost the benefit of his Fal∣cidia

14. When the fiduciary Succession became in use, whereby Heirs were insti∣tute or substitute, to the use and behoofe of others, to whom they were to restore the Inheritance, or some part thereof, or thing therein; which there∣fore was called fideicommissum, as being committed to the trust and faithful∣nesse of the Heir: the Senatusconsultum Trebellianum did introduce the re∣servation of a fourth part to the Heir, institute or substitute by these fidei∣commisses, in the same way that the Falcidia was a reservation from Legacies. And therefore this fourth part was called Trebellianica: which therefore, hath the same exception with the Falicidia, of which in the former Paragraph. And this further, if the Heir were forced by Law to enter, or if within a year thereafter, he do not fulfil the Will of the Defunct; he lost the bene∣fit of his Trebellianica. And if he had either Legacy or Portion of the Inhe∣ritance, it was reckoned to him as a part of his Trebellianica.

15. The use of these Fideicommissary Trusts was, when the Testator de∣signed his Inheritance, or some of his Goods, either for Persons that were not capable to be Heirs, or not fit to manage; as through Pupilarity, prodi∣digality, or some other defect; then he institute other Heirs fit for the present ma∣nagment; and desired, or required them by his Testament, to restore the Inhe∣ritance, or some part of it, to such Persons. And that either simply to a day, or conditionally. And oft times the day of Restitution, was after the Heirs own Death, whereby he had his Liferent or Vsufruct thereof. At first this was wholly left to the trust and faithfulness of the Heir, without any legal Remedy or Compulsion: which afterward were adhibite, with the Reservation of the Trebellianica, as hath been shown. But where the Per∣sons in whose favour the Trust was, were such as could not be Heirs, or suc∣ceed, as spurious Persons; then those Heirs were not compelled to restore.

The essential and chief poynt of a Testament is, the Nomination of an Heir, either by Institution, or Substitution: without which it was not allowed the name of a Testament, but only a Legacy, or at best the name of Codicills, which is called by some an imperfect Testament.

16. Codicills might be made before five Witnesses, either in writ or nuncupative: and they were ordinarly additions to Testaments. Yea because, if when Testaments, through want of Solemnity, became voyd, the Legacies failled; therefore there used to be adjoyned this Clause, If this be not valid as a Testament, Let it be valid as a Codicill, which thence is called Clausula codicil∣laris.

17. The form of Institution of Heirs, was in plain and short terms, thus; Titius haeres esto. These were either institute solly, or joyntly: and that either equally, or indefinitely, which is understood equally; or otherways by certain Portions. No Institution can be conditional, or to a day: or if it be, it is presently effectual. Because the Heritage cannot hing in the air, and belong to none: else it would prove caduciary. Yet in military Testa∣ments this Priviledge is indulged, as hath been said.

18. Substitution is the Nomination of substitute Heirs, who take place failing the institute. There may be as many subordinate Members of Sub∣stitution as the Testator pleaseth. The Institute or prior Substitute, is found to fail, when either he cannot, or will not enter: but if once he enter, the Substitution for ever evanisheth. And if he or his should be extinct who was institute, the Heretage becomes his Patrimony, and no more the first De∣funct's Heretage: and so falls not to the Substitute, who is Heir of the first Defunct; but to the Heirs of the Institute. It is otherways with us, in Tail∣zies, or other Substitutions, as hereafter will appear.

19. Substitution was of two kindes, vulgar and pupillar. Pupillar is that, whereby Fathers were allowed in their Testament, having named their Chil∣dren being Pupils, to be their Heirs, to substitute Heirs to them: which Sub∣stitutes had not only the Father's Heretage, but the Son's, dying in Pupillarity. Under which is comprehended that which is called substitutio exemplaris: whereby Parents having institute their Children, being Idiots, their Heirs; did substitute other Heirs to them, if they entered not, and died Idiots, or Furious. And in military Testaments, the pupillar Substitution is not only effe∣ctual, if the Testator make his own Will, and institute his Children: but though he only substitute. And though the Children survive their Pupillari∣ty; yet if they entet not, the Substitution is valid. All other Substitutions are ordinary, or vulgar; when the Testator institutes Heirs, and substitutes others: but hath only effect as to the Testator's own Goods, if those institute enter not; but not as to the Goods of Heirs institute.

20. The matter of next moment to the Institution or Substitution of Heirs, is the leaving of Legacies; which may be left in Testements, or Codicills, and without either in some cases. Any thing may be legat, which is in the De∣funct's Goods, alienable; except in so far as is restrained in the Legittima, Fal∣cidia, & Trebellianica: of which formerly. Yea though the thing legat be not the Testator's, the Heir is obliged to purchase it to the Legatar, or the value of it, if the Testator knew it was another's: for then his mind is followed, to make it effectual; at least by the value. But if the Testator legat any thing, thinking it to be his own, which is not his own; the Legacy is ineffectual For Legacies being Donations, they are undestood to be given, but so far as the Giver hath Right: and therefore there is no Warrandice of them, as to the Testator's Right. But if the Heir deliver any thing, not specially legat, in satisfaction of the Legacy; if that be evicted upon defect of the Heir's Right, he is lyable for Warrandice. As if an Heir were appointed to give in Legacy, a Horse worth such a price, not being in the Heretage, but delivered by the Heir, to satisfie the Legacy; if the Horse be evicted, the Legatar hath War∣randice against the Heir: because it is not the Defunct's Right, but the Heir's Right that fails.

Legacies, and particular Fideicommisses, not being for Restitution of the whole Heretage, or any special Part, or Quota thereof; are equiparat: as Fideicommisses of the Heretage, or a Quota thereof are equivalent to the In∣stitution, or Substitution of Heirs. And either Legacies, or Fideicommisses may be general, whereby a quantity is left; or special, whereby an indivi∣dual Body is left, as such a Horse, &c. so may they either be left purely, or conditionally, or to a day.

21. This is common to all Legacies, that if the Legatar die before the Testator, the Legacy becomes void, and is not transmitted to the Heirs, and Successors of the Legatar. Neither doth the Legacy belong to the Legatar ordinarly, if the Testament wherein it is left be void, for want of the requi∣sit 〈◊〉〈◊〉, (of which formerly;) unless it have the codicillar Clause, or if the Heir do not enter, or if the Codicills in which it is left, or if the Testament, having the codicillar Clause, want the Solemnities requisit to Codicills.

22. If the Legacy, or Fideicommisses be conditional, the Legatar dying before the existence of the Condition, loseth the Legacy; and doth not trans∣mit it to his Heir, if it be a casual Condition: but if it be a potestative Con∣dition depending upon the power of the Legatar, and not upon accident with∣out his power; or if left to an uncertain day, which is equivalent to a casual Condition: if so the Condition be in the Legatar's power, (unless he did all diligence to satisfie the same) he loseth the Legacy. But if the Condition fail not through his fault, as being offered and not accepted, or being imped∣ed by any third party; the Legacy is thereby transmitted to the Legatar's Heirs, who are only lyable for the interest of the Condition.

Legacies pure or to a certain day, are transmitted by the Death of the Te∣stator; especially if the Heir be entered, though the day be not come: quia cessit dies, sed non venit.

23. In the several Cases, by which Legacies are established, and transmis∣sible, the property thereof is in the Person of the Legatar, if it be a special Legacy: but the possession thereof remains in the Heir, against whom the Legatar hath not only a personal Action, for payment or delivery of the Le∣gacy; but hath also a real Action of vendication, against him, and all other havers thereof, for delivety of the same. So fideicommisses, which are not conditional, are not alienable by the Heir, but are recoverable from every singular Successor.

24. Conditions adjected to Legacies, or fideicommisses, are of diverse kinds; of which shortly observe; 1. That when Conditions are copulative, they must all be joyntly performed: or when diverse Conditions are severally set down in several places of the Testament. But if they be disjunctive, the 〈◊〉〈◊〉 formance of any of them is sufficient. 2. If the Condition be divisible, and performable by more persons; each performing his part, hath access to his Legacy. But if it be imposed upon one person, the performance of a part thereof, doth not give access to a proportionable part of the Legacy: but the Condition must be wholly performed, otherways there is no part of the Legacy due. 3. Conditions impossible in facto, as not being lawful, regular∣ly are void, and as not adjected. Amongst which that is accounted one, if Marriage be absolutely prohibited: which the Authenticks restricted only to

Maids, and found it lawful in the case of Widows, to adject such a Condition, si Titionubat; and therefore if the Legater married not to that Person, the Le∣gacy was not due.

In Legacies and fideicommissis, a false Narrative vitiats not: as when the efficient Cause, mentioned therein, was not true. for example; if a Legacy be left, bearing to have been for Services done, generally or particularly; al∣beit these were not done, it is valid. But the expression of the final Cause implys a condition: and if it be not performed, the Legacy ceaseth, causâ non sequntâ, As when Legacies are left for such Uses, Services, or Deeds to be done. Legacies being gratuitous, are of the nature of Donations: and therefore are revocked by Ingratitude, Ipso facto; not only in reaching the De∣funct, as if Inimity rose betwixt him and the Legatar; but even after his Death, as if he curse him, or endeavour to make him infamous. Yea, those things against the Heir, will be sufficient to take away the Legacy.

So much may serve for a Summary of the Roman Law, in the matter of Te∣staments. As for the Succession of the Intestat, it being one, without distin∣ction of heretable and moveable Rights, we have spoken thereof before, Title Succession. We shall therefore only touch on those points which are common, in all Successions, by the Roman Law; viz. of the Inventary, Collation of Goods, and Right of Accrescence.

25. The Inventary of Heretage, was a Repertory of every Particular con∣tained therein: and was contrary to the Rules of the ancient Roman Law, l. si dotis nomine, 33. ff. soluto matrimonio; by which there was neither a Duty nor Benefit to the Heir by an Inventary. But the use thereof was introduced by Justinian in favour mainly of Heirs, and in some cases of Creditors, and Legatars. Of Heirs, that they might not be lyable for the Defunct's Debts in solidum, but secundim vires inventarij, according to the value of the Inheri∣tance. And this much in favour of the Creditors and Legatars, that the In∣heritance might not be imbesled. And therefore the making of the Inventary was appointed to be with great Solemnity, before a Judge, upon Citation of the Creditors, and Legatars, so far as they were certain; and publick Procla∣mation for the rest: and before famous Witnesses. And in place of the absent Legatars and Creditors, three persons were to be present, besides the Witnes∣ses, of good Fame and Means. The Inventary behoved to be made within 30 dayes, after the Heir knew and could enter to the Heretage; and behov∣ed to be compleat within 60. dayes after the beginning thereof. The Inven∣tary not being thus made, the Heir was lyable to the Creditors for their whole Debts, and to the Legatars for their Legacies; without deduction of his Fal∣cidia. Neither could the Testator dispense with, or prohibite the making of the Inventary, in prejudice of the Creditors: but he might in prejudice of the Legatars, so as the Falcidia would be due, in that case, though the Inventary were not made.

26. Collation is the Obligation of the nearest Heirs descending, to commu∣nicate what the Defunct Parent bestowed upon them, by Donation, or To∣cher, unto the Inheritance: that an equal Proportion or Division might be of the whole, amongst the Co-heirs.

The reason of this Collation was, the equality of interest and affection of Parents, to their Children, of the same Degree, and thence their presumed

Will, that these should enjoy equal benefite by their Parents. And there∣fore if it appeared, not to have been the Parents Will, Collation had no place. As if the thing were bestowed, with express exemption, ot prohibition of Col∣lation, or if it were left as a Legacy, or Donation, mortis causa: for thereby the Parents purpose appeared, to prefer that Child to the rest, even after the Parents Death.

Collation was competent amongst no other Heirs, than Descendents in the same Degree; and not amongst extraneous Heirs, institute, or substitute; or amongst Ascendents, or collateral Heirs: but only when the Co-heirs were by Testament, or from the Intestat, who are in the same Degree, as being all Children, or all Oyes, &c. But if Children, or Grand-children were institute or substitute together, there was no Collation.

Amongst things bestowed upon Children by their Parents, their peculiar Pro∣visions and Tochers were comprehended: but not their Entertainment, or Expense of their Education. And therefore though one Child were elder, or longer entertained than the rest, or though more sumptuously; or though educated with more noble Accomplishments, and at a greater Rate, as being bred at Schools, Trades, Exercises, &c. neither the Instruments requisite for these as Books, Cloaths, or the like, came under Collation, or was there any estimate or consideration thereof. The reason is, because Entertainment and Education is presumed to be according to the fitness and capacity of the Per∣sons, whereunto a proportion is observed in all Societies and Communions. And therefore the Parents are presumed to have expended upon their Children proportionally, according to the capacity and excellency of their Spirits, and to render them fit to the services of their Generation: which as they have a Benefit, so have with them a large Burthen, and oft-times Hazard. Neither do Donations to Children for any special Service done to the Parents, come un∣der Collarion: because these are not properly Donations, but Remunera∣tions.

27. The Right of Accrescence, is that whereby the Portion of an Heir, Legatar, or fideicommissar, befalleth to another: not by a new and several Succession, but by the first Succession, and as a part thereof. We have litle use of this: and therefore I shall be shorter, in the many and subtile Debates, agitat amongst the Doctors thereupon. For taking clearly up this Right, we must take notice, that Co-heirs by Testament, or Legatars, or 〈◊〉〈◊〉, are either appoynted conjunct by the words of the Testator, or by the matter: or conjunct as to the words, but 〈◊〉〈◊〉 as to the matter: or whol∣ly several, both as to words and matter. As if the Testator say, Titius and Mevius shall be my Heirs: there the copulative conjunction joyns them in the same Sentence, and they are joynt in the same Inheritance, without expres∣sing their distinct Portions; in which the Law interprets them equally insti∣tute. The like is, if he leave a Legacy, or fideicommissum, in the like terms. But where the Proportion is express, equal, or unequal, thus; Let Titius and Maevius be my Heirs equally; or, let Titius be Heir in one half, and Maevius and Caius in another half: here Caius and Maevius are conjunct in words and mat∣ter; but they are several from Titius, both as to words and matter. Or in the first case, Titius and Maevius are joyned in one Sentence, but separat as to the matter: because their Portions are severed and exprest. But if the Testa∣tor say thus; I leave Titius my dwelling House, and say after, I leave Maevius the same dwelling House, there is no conjunction of words: because to both seve∣rally

the same thing is left. In all these Cases there may be Substituti∣ons: we shall then set down the Right of Accrescence in the several Cases thereof.

First, in the Institution or Substitution of Heirs directly, there is place for Accrescence, whether the Co-heirs be conjunct or disjunct. The reason is, because of that principle of the Civil Law, that no man can die partly Testat and partly Intestat, except in Military Testaments. And therefore if any of the Co-heirs will not, or cannot enter; the Inheritance accresceth necessarly unto the other Co-heir, with its own burthen, whatever it be. Neither can the Heir reject that Portion, for the same reason: and if he enter before the other Heir be excluded, he hath no remedy, and can neither reject the whole nor a part: because he might, and should have seen to the other's Entry, with him, or else he enters on his peril. This takes no place in Legacies, or 〈◊〉〈◊〉; because in these, the ground of Law proceeds not. And there∣fore if any Heretage be ordered to be restored to such persons, severally in distinct Portions, if one of them will not, or cannot accept, that Portion ac∣cresceth not to the other, but returns to the Heir. And so in Legacies, if there be a Substitution to any of the Heirs, the Portion accresceth not: be∣cause there is place for the Substitute, who becomes Co-heir with the other Institute. This Accrescence is so necessary, that the Testator cannot prohi∣bite it, because he cannot die tested, pro parte. And therefore provisio hominis, non tollit provisionem legis, being as to the necessary Requisits, Essentials, and Solemnities of Law.

Secondly, in the Institution or Substitution of Heirs, or in Legacies, and 〈◊〉〈◊〉, if there be more Persons, and some of them joynt as to both matter and words; the Rights of those so conjunct do accresce, (if any of the Per∣sons so 〈◊〉〈◊〉, do not, or cannot accept,) to the rest of the Conjuncts: and not to those that are disjunct in the matter, though they be conjunct in the words. As if the Testator say, Let Titius be my Heir; and thereafter say, Let Seius and Mavius be my Heirs: if Seius or Maevius cannot, or will not en∣ter; their Portion accresceth to the other, and not to Titius. And there∣fore this Conjunction is called a tacit Substitution, because the Law presumes that the Testator did not inconsideratly, or in vain, joyn Seius and Maevius in one Sentence; and put Titius in another by himself: and so construeth that these two should be more conjunct, and their Portions accresce to one another, and not to Titius.

Thirdly, This proceedeth where the conjunction is only in words, if there be any disjunct both in matter and words: for then the Conjunction makes the Portions of the Conjuncts to accresce each to other, and not to those who are wholly disjunct. As if the Testator say, Let Titius be my Heir in the Half, and let Seius and Mevius be my Heirs equallie in the other Half: Here Seius and Mevius are conjunct in words and not in the matter; because their Portions are severed, and yet their Portions accresce to other, and not to Titius, who is wholly disjunct; and that from the presumed will of the De∣funct, as having consideratly put them in one sentence for that purpose. But this takes place only in Institution and Substitution of Heirs, that the Testator die not partly testat: but not in Legacies and Fidei commissis; for in these the Portion of the Conjuncts only in words not being accepted, doth accresce to none, but returneth to the Heir.

Fourthly, In al, Cases where there is conjunction in the matter, and not in words, there is place to Accrescence. As if the Testator say, I leave my dwelling House to Titius, I desire my Heir to restore the same dwelling House to Mevius; the Portion of either Party not accepting, accresceth to the other, and returneth not to the Heir. But if the Testator say, I leave my House to Titius, I leave the same House to Seius and Mevius, either indefinitly, or ex∣pressing their Portions; Seius and Mevius their Portions accresce each to other, and not to Titius: because if they and Titius be conjoyned in matter only, yet they are also conjoyned in word; and so the more Conjunctions prevail, by the presumed Will of the Defunct.

This kind of Accrescence is called by the Doctors, jus non decrescendi: because each party being provided to the whole, which cannot be effectual: therefore concursu partes faciunt, and the Deed is made effectual to them in part equally; if the Will of the Defunct appear by the Provision, not to take away the former wholly, as in many Cases it falleth out. And therefore in this Accrescence, if any burthen be adjected, if that Party accept not, his Portion aceresceth to the other, without that burthen: because the other enjoys his own Right, which was total, and becomes now effectual as to the whole: the impediment that retrenched it, being wholly taken off. But in all other Conjunctions, the Portion accresceth with its burthen. And therefore the accrescing Portion, as being special, may be rejected in Le∣gacies, and Fidei commissis: but it cannot be rejected in Institutions or Sub∣stitutions, lest the Testator should be intestat in part. But in jure non de∣crescendi, when Portions accresce, amongst those that are conjoyned in the matter only; the Accrescence is necessary, and the Portion accrescing can∣not be rejected: because it befalleth by one integral Right, which either must be accepted wholly, or rejected wholly: and therein approbans non reprobat, no man can both approve, and disapprove, of the same individual thing.

28. The Law and Customs of Scotland have reduced the matter of Testa∣ments, and Succession in Moveables, much nearer to natural Equity, and made it much shorter and plainer than the Roman Law. For first, the Civil Law did lay the greatest weight, upon the free power of testing: which our Law hath so far abridged, that all Contracts, Pactions, and Provisions in relation to the Heretage of Persons living, are valide and ordinary, in Con∣tracts of Marriage &c. And even pactum corvinum, in the worst sense, is va∣lide: as when one, being provided by Contract of Marriage to be a Bairn in the House, sells that Portion in the Lifetime of the Contracter. Which was sustained, 6. of Julie 1630. Mr. James Aikenhead, contra Bothwel. So an Obligement to leave a Legacy, was found valide, and to stand as an irre∣vocable Legacy: yet only to be taken out of the Defunct's part of his free Goods. 13. of Januarie 1631. Houstoune contra Houstoune.

29. Secondly; Not only may the power of testing, be restricted by Pacti∣on; but is actually restricted by Law, to extend to no immoveable or heretable Right: which cannot be alienate, or affected upon Death-bed, or, which is equiparat, by Testament, though the Testator were in his liege pousty, or perfect Health. And that on good considerations: because Persons are or∣dinarly and still presumed to be weak, when affected with Sickness, and so not fit to alienat or affect things of their greatest concernment, as their Lands, Heretage, &c. And because it is the great interest of Persons, to be free of all importunities when they come to their Death-bed. At which time they

are only capable of their Deads part, which is seldom 〈◊〉〈◊〉 and so they cannot affect their Lands, nor can they further dispose of their Goods, upon the Solicitation of Church-men, which is very powerful in the Popish Church, where Indulgences and Prayers for the Dead, to bring them out of Purgatory, are believed, and cannot but be forcible upon dying Men who then are more concerned for the safety of their Souls, than preservation of their Estates. And every where, the pressing Desires of Wives for themselves, or for such of their Children as they most affect, or of Children, Relations, and Friends, may have great impression upon the Sick for preserving their Peace and Quiet. So there remains nothing testable, but moveable Rights. What Rights are moveable, and what heretable, see in the beginning of the Title, Rights Real, which shall not be here repeted. Thence it is, that there is a total Separation of the Succession in heritable Rights, which are only com∣petent to Heirs; and in moveable Rights, as to which because they were in∣trusted to Prelats, and their Officials, as being presumed most careful of Widows and Orphans, and that the Will of Defuncts should be effectual, who did appoint or confirm Persons to execute the Defunct's Will: the Per∣sons so appointed, or confirmed, were called Executors, and the whole move∣able Rights of Defuncts, whether tested on, or from the intested, are com∣prehended in Executory.

30. The whole interest of Executory with us, is in the Office of the Ex∣ecutor; the Division of the Communion of Goods, betwixt Man and Wife, (whereby the Relict hath her Part;) the Saccession of Children, and near∣est of Kin; or Legacies. There is with us, properly, no Institution or Substitution of Heirs. for albeit the Nomination of Executors, be in the De∣functs power, in the first place; and doth resemble the Institution of Heirs, and may receive Substitutions, in the same way; yet is it not properly a Succession, but rather an Offce, which therefore hath a part of the Goods. Executors are Heirs in mobililus, and when Heirs only are exprest, Execu∣tors are comprehended, quoad mobilia. If there be Nomination of Execu∣tors, with a material Legacy to another, it is a fideicommissiry Succession, to be restored to the universal Legatar. And Executors dative have also a fideicommissary Succession, which they must restore to the Wife, and nearest of Kin of the Defunct. So must Executors nominat, not being also univer∣sal Legatars, and being strangers: retaining only a third of Dead's part to themselves, for executing their Office. The greatest power of Defuncts, either by Testament, or otherwayes, is the power of legating by particular or univer∣sal Legacies. The interest of the Wife is not so much a Succession, as a Di∣vision, of that Communion of moveable Rights, which the Law stateth betwixt the Husband and her stante matrimonio, and which is dissolved by the Dissolu∣tion of the Marriage: and so she taketh her share of the free Goods by way of Division.

31. The Succession in Moveables from the intestat, belongeth to the near∣est of Kin; who are the Defunct's whole Agnats, male or female, being the Kinsmen of the Defunct's Father's side, of the nearest Degree, without primo∣geniture or Right of Representation: wherein those joyned to the Defunct by both Bloods, do exclude the Agnats by one Blood.

32. The Line of Succession in Moveables, is first, the nearest Descendents, male or female, in the same Degree, equally; whether Sons or Daughters, without Right of Representation. So that if the Defunct, the time of his De∣ceass

had two Daughters, though he had an Oye by a Son; the Daughters will exclude the Oye, albeit the Defunct had nothing but Moveables.

The next Degree of the nearest of Kin is, Brothers and Sisters german: and failing these, Brothers or Sisters by the Father's side only, or their near∣est Descendents of the same Degree, without Right of Representation.

As to the third Degree of Succession in Moveables, failing Descendents, and Brothers and Sisters, and their Descendents; the Question is, Whether the Father surviving, will exclude his own Brother, or if there be any place for Ascendents, in the Succession of Moveables? Such Cases occur rarely: and I have not observed it debated, or decyded. It is but of late since the like Case hath fallen in the Succession of Heirs, and Heritable Rights: wherein our Custom hath according to the course of the Law of Nature, found the Fa∣ther to be Heir to his Son, and not the Father-brother, or any of his Descen∣dents; and in that have differed from the Custom of England. And there is no reason why, if the Question should occurr, that the like should not be done in Moveables.

The next Degree is, the Father's Brethren and Sisters german; which fail∣ing, the Father's Brethren and Sisters by the same Grand-father, and their De∣scendents, in the next Degree. In all which both Bloods exclude one Blood. And if there be no Agnat or Kinsfolk found, who can instruct their propin∣quity of Blood; the Goods become caduciary, and confiscat, and belong to the King, as ultimus haeres; who, and his Donatar, have the same interest, that the nearest of Kin would have had. Vide Title, Confiscation, Section Ul∣timus hares.

Children in familia, have not only the common Right, as nearest of Kin; but have their legittime Portion, called the Bairns part: in which their Father cannot by Testament, Legacy, or Donation 'mortis causâ, prejudge them; or by any other Deed, on Death-bed.

By the Premises it appears that the whole power of Defuncts, as to Succes∣sion in their Moveables, is to nominate Executors and give Legacies.

33. The Nomination of Executors, is properly called a Testament, Ad∣ditions thereto, or Alterations thereof, are Codicils. Legacies may be left, whether there be Testaments or not; and either in the Testament, Codicils, or apart: but all is ambulatory during the Defunct's Life, and may be taken away expresly, or implicitely, by posterior or derogatory Deeds; unless the Defunct be obliged by Contract, inter vivos, not to alter the same. In which case Contract and Paction, doth so far over-rule the power of testing; that posterior Deeds whether expresly, or implicitely altering, would be ineffe∣ctual, like to that Obligement, to leave a Legacy, which was found an effe∣ctual Legacy without further Solemnity. January 30. 1631. Houstoun contra Houstoun.

34. The effect of Testaments being so small, the Solemnities thereof are no other, than what are requisit to accomplish any other Writ. For two Witnesses suffice, and if the Testament be holograph, it is valid. Or if the Testator cannot, or be not able through Sickness, to write, a Testament will be sufficient by a Notar and two Witnesses: notwithstanding the Act of Par∣liament

1579. cap. 8. requiring to Writs of importance, two Notars and four Witnesses; which holds not in Testaments, though containing matter of great importance. 18. of January 1623. Bog contra Robert Hepburn. Yea Ministers are authorized as Notars, in the case of Testaments. Par. 1584. cap. 133. The reason here of is; because Ministers are ordinarly with sick Persons the time of their Death.

Nuncupative Testaments are not of force in Scotland. For though Legacies left within an hundred pounds, may be nuncupative, without Writ; yet the Nomination will not so subsist, nor be respected by the Commissaries. And therefore a verbal Testament, taking away a formal Legacy, subscrived but by initial Letters; was not sustained, though made at Sea, and so in a Case of necessity: and not admitted to be proven by Witnesses in the Ship. Feb. 18. 1631. Houstoun contra Houstoun.

35. The effect of Testaments is not greater, though made in England, the Testator residing there: and so extends not to an Heretable Sum due in Scot∣land, left in Legacy by the Testator, being a Scots-man. July 3. 1634. Melvil contra Drummond. Hope Testaments, Purves contra Chisholm. Executors of Collonel Henrison ibid. Neither do nuncupative Testaments of Scots-men, though residing, animo remanendi, abroad, and dying there; have any effect with us: albeit nuncupative Testaments be valid according to the Law and Custom of that Place. For albeit the Custom of the Place, may supply the Solemnity of any Writs, or Evidents, for instructing a Right; as Writs made abroad by Nottaries, and Tabellions, are valid, though not done ac∣cording to the Law of Scotland, which requires two Notars and four Wit∣nesses, in Writs of importance: yet the Custom of those Places cannot consti∣tute any Right of Succession, not allowed by the Law of Scotland. And therefore William Schaw, Factor and Residenter in London, having lived and died there, in the House of one Mary Lewins, who had confirmed, in England, a nuncupative Testament, whereby he had designed her as Executrix and Le∣gatrix; and the nearest of Kin of the said William, having confirmed them∣selves Executors to him, in Scotland, and the competition being betwixt them: the Lords preferred the Executors confirmed in Scotland, and had no respect to the nuncupative Testament, as having no effect by the Law of Scotland. January 19. 1665. Schaw contra Lewins.

36. The like Solemnities will be sufficient for Codicils and Legacies. A nuncupative Legacy within an hundred pounds, is probable by Witnesses. November 24. 1609. Russel contra July 7. 1629. Wallace contra Mure. Where a greater Legacy, left by word, restricted to an hundred pounds, was found so probable.

37. The power of Testing is competent to all Persons, who have the use of Reason, though Minors, having Curators not consenting: Wives cled with Husbands, without their consent; Persons interdicted, without consent of the Interdicters: but not to Pupils, Idiots, furious Persons in their Furiosity: neither to Bastards, not having lawful Issue, or testamenti factionem, by the Kings Gift; as in the former Case, Wallace contra Mure. Vide Tit. Confisca∣tion §. Bastardry.

38. Legacies are either particular or universal, general or special. Uni∣versal Legacies are when the whole Moveables, in so far as is in the Defunct's

disposal, and not left by particular Legacies, is legat. and so it is legalum per universitatem, and like to the Succession of an Heir.

Special Legacies are, where some Individual is left, as such a Horse, Cloaths, &c. or such a Sum due by such a Person: whereby the Property is stated in the Legatar, and at most, but the Possession or Custody in the Executor. And therefore the Legatar may pursue for Delivery, or Payment of the special Legacy, against the Havers or Debitors: but he must call the Executor, that his interest may be preserved; least the Debts exhaust even the special Lega∣cy. Upon which consideration, the Lords sustained not a Pursuit upon a spe∣cial Legacy, leaving a Sum due by such a Person, in such a Bond, pursued against the Debitor; the Executor not being called. March 9. 1627. Forre∣ster contra Clerk And before, the Pursuit against the Debitor, at the Lega∣tar's instance, was simply repelled; not being against the Executor. February 4. 1623. Laird of Balnamoon contra Balcomie. Yet Process was sustained at the instance of the universal Legatar, against the Debitor, the Executor being also called. Here there was Malversation betwixt the Executor and Debitors. But ordinarly, Legatars have no immediat Action, against the Debitors of the Defunct; but only against his Executor, Hope, Legacy, Ballantine con∣tra Mr. John Eliot.

Legacies may be left, not only in Testaments, or Codicils; but where there is none: or where there is in Contract;, Letters, or Tickets apart; though the Legacies were not in the Confirmation. December 1. 1629. Executors of Sir William Scot contra Arthur Rae.

39. Legacies, and Donations in contemplation of Death, or done on Death bed, albeit as inter vivos; yet being of Moveables, as Bonds, Assignations, or Gifts of Money, or Goods on Death-bed: have the like effect, and are only effectual, as to the Defuncts free Goods at his disposal, which is called the Dead's part. And if the whole Legacies, exceed Dead's part of the free Geere; regularly they are abated proportionally. Wherein there is no pre∣ference, nor Priviledge granted to Legacies left ad pias causas: as for building of a Kirk, delivered by the Defunct long ere he dyed; which suffered pro∣portionable Defalcation with the ordinary Legacies, July 8. 1630. Doctor Monro contra Executors of William Scot. But if the Defunct express his Will, to leave a Legacy without Defalcation; it will not be defalked with the other Legacies.

40. Whether a special Legacy, without such express Will of the Defunct, will be abated proportionally with other Legacies; I have not observed oft decyded. But I conceive it will not bear proportional Deduction: because though not the express, yet the tacit and presumed Will of the Defunct seems to be so. Else why should he leave that Legacy more specially, than the rest? Which is more clear in things left in Legacy; as when a Horse, Sword, Cloaths &c. are left; and the other Legacies are not special: there seems no reason, upon failing of the other Legacies, to burthen the special Legacies; abated they cannot be, directly, not being Quantities but Bodies. The same reason is in Sums specially legat: for though it may appear that the Defunct's reason may be, to leave such a special Debt, to such a Legatar, not as a 〈◊〉〈◊〉, but because that Debitor is less solvendo; yet with that hazard, the other advantage is consequent; that as he will get no benefit with the other

Legatars, solie should bear no abatement with them. It was so decyded July 21. 1665. Spreul contra Murray.

41. Quaeritur, Whether, as in the Civil Law, so with us, if the Testator leave a special Legacy, of that which he knows is not his own; it will be va∣lid quoad valorem? It was found, that a special Legacy left of an heritable Bond, which fell not in Executory, was valid, to affect the Dead's part of Moveables, pro tanto. 22 of Januarie 1624. Drummond contra Drum∣mond.

A Legacy by a Wife, ordaining an Executor to discharge a Bond to the Legatar, was found valid, and to be made up by the Wife's Executors; al∣beit the Half of the Bond belonged to the Husband jure mariti: as being lega∣tum rei aliena scienter legatae; and the Wife was presumed to know that com∣mon Principle in Law, and not to be ignorant thereof. 18. of June 1664. Murray contra Executors of Rutherfoord. It was also so decided, of a Bond left in Legacy, which Bond had been assigned by the Defunct to another, shortly before his Death, whereof he was presumed not to be ignorant. 14. June 1664. Alexander Falconer contra Mr. John Dowgal The like was found of a Legacy, left by a Defunct, out of a Sum he had upon such Lands; which Sum he could not but know was heretable, and could not be legat: wherethe Executor, (who was also Heir,) was decemed to make good the Le∣gacy. 2. of December 1674. Robert Cranstoun contra Brown. Yet a Legacy being special, bearing such a Bond to be confirmed, and communicat to the Lega∣tar; was not found due, or to be made up: in respect that after the Legacy, the Defunct made that Bond heretable, by a superveening Security, which did import the Revocation of the Legacy. July 8. 1673. Grizel Edmondstoun contra Margaret Primrose. But where the Testator gives a special Legacy, of that which he supposeth to be his own; he giveth it, but as he hath it, without any warrandice, being meerly gratuitous: and the Executor is not obliged to make it good. As if he legat a Sum, which he supposeth moveable, and yet is truely heretable. February 21. 1663. Anna Wardlaw contra Frazer of Kilmundie.

42. Legacies are sometimes left together, in one Writ, and sometimes by posterior Writs, which do not derogat to the prior Legacies; but all come in together. If they exceed the Defunct's part, they suffer all, proportional Abatement, except such as are special Legacies. For if one Thing, or Sum be Specially legat to one Person, and by a posterior Writ, be legat to another; the posterior Legacy takes place, and is a Revocation of the former; and they do not come in together, concursu partes facere; as they would do, if left in one Writ, by the Roman Law; and each Legatar would have but a Half. But we have no such Custom, or Style, to legat the same thing intirely, to dif∣ferent Persons, in the same Writ. And if that should happen, it is like, that the posterior Legacy, though in the same Writ, would exclude the prior; as an alteration of the Testator's mind, while his Testament was a framing: for it is ordinary in the same Writ, to alter prior Clauses, by posterior. There is also this Exception, of the Consistency of Legacies, left at diverse times, that the Assignations, as inter vivos, on Death-bed, have only the effect of Le∣gacies. Yet posterior Assignations, though not special, but generally, out of so much of the Defunct's Means, are preferable to prior general Assignations. July 21. 1676. Trails contra Gordoun. And Bonds of Provision to Children, on Death-bed, though they have but the effect of Legacies; yet they do not

come in with prior Legacies, to suffer a proportional Abatement, but are pre∣ferred thereto. December 14. 1676. Katharin Mitchel contra Litlejohn. And a Defunct having, on Death-bed, given Assignation to one of his Children, to some of his Bonds, and thereafter by his Testament, nominat that Child, and an other his Executors, and universal Legatars; the universal Legacy, was not found to take away the prior Assignation: though the same was not deli∣vered, nor did contain a Claūse, dispensing with Delivery; but that Child had both the Assignation, and the Half of the remainder of Dead's part. Ja∣nuary 29. 1677. Aikman contra Successors of David Boyd. A Legacy by a Husband to his Wife, was found not to be understood, to be in satisfaction of her Third, but to be wholly out of the Defunct's Third. January 12. 1681. Trotter Lady Craigleith contra Rochead Lady Prestoungrange. And a Legacy left, for building a Bridge, being a definite Sum; the Executor having build∣ed the Bridge, with less Expense, the superplus was applyed, to build another Bridge in the same Shire. June 18. 1678. Commissaries of Berwick Shire con∣tra John Craw.

43. Legacies, Donations in contemplation of Death, or Deeds on Death∣bed, may affect the Defunct's whole free Moveables, Debts being deduced; except only as to the Relict's, part, and Bairns part: which were found not to be prejudged by an Assignation to a moveable Sum, made by the Defunct on Death-bed. July 10. 1628. Cant contra Edgar. The reason of this limita∣tion on Legacies, will easily appear, when the nature of the Relict's part, and Bairns part shall be considered.

The Relict's part of her Husban'd Executory, or Moveables, hath its rise from that Communion of Goods, betwixt Man and Wife stante matrimonio, of which, Title Conjugal Obligations, §. 12.

The Communion of Goods, betwixt Husband and Wife, is competent ipso jure, without Contract, as a part of that individual Society, wherein Marri∣age consists. And therefore by the Dissolution of the Marriage, the Commu∣nion is dissolved. So that if the Husband die first, the Wife hath her Share of his Executory: and if the Wife die first, her Executors, Legatars, and near∣est of Kin, have a Share of the free Moveables, the Husband hath, the time of her Death. In which Children of that Wife though of other Marriages, will have part of her Share, with the Children procreat betwixt the present Hus∣band, and the Wife, both being in a like propinquity to her.

44. The Bairns part is their Legittima, or Portion natural: so called, be∣cause it flows from that natural Obligation of Parents, to provide for their Children. Which is not extended, to restrain the Parent to dispose of any part of his Means; but only so, as to leave a Portion thereof to his Chil∣dren: which because the Law orders, and determins; it is called the Le∣gittime.

The Bairns part is only competent as to the Father's Means, and is not ex∣tended to the Mother, or Grandfather: nor is extended to any, but lawful Children. Neither is it extended to all lawful Children, but only to those who are not for is familiat. And it carries a Third of the Defunct's free Move∣ables, Debts being deduced, if his Wife furvived; and a Half if there was no Relict.

45. But here the Question ariseth, What is For is familiation, whether be∣ing actually out of the Family be sufficient; as if the Child exercise a Trade a part, or be married, without the Father's consent; at least without a Por∣tion or Tocher from the Father? Or whether it be sufficient that the Child be forisfamiliat, and provided by the Father, albeit the said Provision be not ac∣cepted expresly in satisfaction of the Portion natural, and Bairns part? Or whether none be accompted forisfamiliat, to exclude them from the Bairns part; unless they discharge the same, or accept a provision in satisfaction thereof? There be probable reasons for all the three parts: but the main Doubt, is upon the last two, Whether Provision be sufficient, as being pre∣sumed, to be given and accepted, in satisfaction of the Portion natural. So much the rather that in Contracts of Marriage, Fathers of times use to adject a Clause, That the Child Contracted shall be a Bairn in the House: which would be superfluous, if the Child would be a Bairn of the House, unless the Bairns part were expresly discharged. And therefore Tochers, and Provisions be∣ing neither expresly in satisfaction of the Bairns part, nor yet with provision, That that Child shall be a Bairn in the House; must be holden to be given, and accepted, in satisfaction of the Portion natural. Which is confirmed by a Deci∣sion observed by Dury. February 1. 1622. Janet Eleis having pursued the Exe∣cutors, af umquhil Patrick Eleis her Father, for her share, with the rest of the four Bairns, in the said Patrick's House; and that by a Clause, in her Contract of Marriage with John Smith, afterwards Provest of Edinburgh, providing her to be Portioner, of her Fathers free Geer, with the rest of his Bairns, provided the rest were forisfamiliat, and provided likeways by their Father. In which Case, the said Janet was found to have her Share, albeit two of the Bairns were not married, but only provided. Whereby it appears, that the Lords accounted Provision as Forisfamiliation. Yet the contrary opinion is more probable, viz. That nothing can take away the Bairns Legit∣time, unless it be discharged. And that a Presumption, of accepting a Tocher, or Portion, in satisfaction, will not be sufficient, unless it bear in satisfaction of the Portion natural and Bairns part. 1. Because the legittime is so strongly founded, in the Law of Nature, and positive Law, that Presumption or Con∣jecture cannot take it off. 2. This is more suitable to the Civil Law, which we follow in this Case, whereby the difference betwixt Children, being eman∣cipat, or forisfamiliat, or sui under the paternal power, and in the Fami∣ly is taken off as to the Succession and Legittime. And therefore there is in∣troduced collatio bonorum, whereby all that the emancipat or forisfamiliat received from their Father, must fall in under the Accompt. So their Tochers, Gifts, Provisions &c. are imputed in a part of the Legittime; but are never presumed to be the whole, unless it were exprest. 3. Collatio bonorum is ordi∣nary with us, by which the Tocher of the married Children comes in the Ac∣compt of the Bairns part: which could not take place, if those Tochers were presumed to be in satisfaction of the Bairns part, unless the Clause to be a Bairn in the House, were expresly added. Which was so found. February 27. 1627. Janet Ross contra Marion Kellie. Where the Pursuer being married, and tochered; was not excluded from the Bairns part, there being no other Bairns in the Family. Yet there was a Wife in the Family, and so the Executory was tripartite. Neither was the Pursuer made to bring in her Portion, col∣latione bonorum. But here the Contract bare, that the Tocher was in satisfa∣ction of that Daughter's right to her Mother's Third, who was her Father's first Wife.

If then it be urged, that the Clause, to be a Bairn in the House, signifies no∣thing: It is answered, that the Clause may be propter majorem evidentam & securitatem. But also as to the clearing of this Question, Whether that Clause hath not this effect, that that Child should not only come in, to have a Share of the Portion natural, with the Bairns of the Family; as if that Clause had not been adjected, but the Child had come in, only provisione legis. In which Case, the Child forisfomiliat behoved to have brought in the Tocher, or Por∣tion, collatione bonorum: but when the Child comes in also provisione hominis, the effect is, that it be without Collation. Which is so much the more evi∣dent, that oftimes Children are provided to be Bairns of the House, after the rest are likewise provided. So that when that Condition is not adjected, the meaning is, that without consideration of the Tocher, or former Provision, the Children by that Clause should have equal share. It was so found Spots. Test. Elizabeth Carsen contra Agnes and Marion Carsens.

46. Collation then hath only place amongst Children, where it is not pro∣hibite, expresly, or implicitely, by the Father, providing that Child to be a Bairn in the House. But Collation hath no place as to the Wife: because Tochers in such Provisions, being as inter vivos, of its own nature, it is no part of the Executory; but is done by the Husband in 〈◊〉〈◊〉 potestate, who is dominus omnium bonorum, at least hath plenam administrationem, notwith∣standing the Communion of Goods in the Wife: But Collatio is only a Re∣medy introduced in Law, to keep Equality amongst Children, who have an equal Interest in their Father and his Moveables: but it is not introduced, to keep an Equality betwixt the Wife, and them. Neither doth it design an Equality in all things, but in Provisions, or Tochers, in Money; which must be accompted to those who got the same. But Land disponed to a second Son for Love and Favour, not bearing for his Portion or in satisfaction thereof, was not found to exclude him from his share of the Bairns part, with his Si∣ster: nor to require him to collate what he got in Land. January 14. 1677. Duke and Dutches of Balcleugh contra Earl of Tweedale.

Hence ariseth another Branch of the former Question, Whether if all the Chil∣dren be forisfamiliat and provided; but have not discharged their Portion natural, or Bairns part, or accepted the provision in satisfaction thereof: If in that case they will have access to a Portion natural, in prejudice of the Re∣lict and Legatars? I say, if they be all provided, because if some be in the Family unmarried and unprovided, the Relict and Legatars will be no more prejudged, if all the Bairns come in, or only some of them, because many, or few, they will have all the Bairns part and no more. The former Case, Ross contra Kelly, seems to bring in the Children, though all forisfamiliat, to a Legittime with the Relict: because there was but one Child, and she marri∣ed, and tochered. Only it is observed, that her Provision was in satisfacti∣on of her Mother's part: so that albeit she was married, yet it appears that she was not provided, ex bonis paternis, but only ex bonis maternis. And there∣fore it remains yet unclear: and there seems much reason that the Wifes inte∣rest being a division of her Communion of Goods, she should not devide with them who are out of the Family and provided, unless they had a Provi∣sion to be Bairns in the Family. By the common Practick also, Commissaries divide Executory in two, where there is a Wife, and the whole Children mar∣ried, and so presumed to be provided. It was so found where there was but one Child married and provided, though not exprest in satisfaction. But the Child was admitted to a Third, offering to confer. February 18. 1663. Dum∣har

of Hemprigs contra Frazer And where a Defunct had only two Daugh∣ters, besides his Heir, the one in her Contract of Marriage, getting a Tocher in full satisfaction of her Portion natural and Bairns part; and the other in her Contract, being provided to be a Bairn in the House, was found to have the whole Right to the Bairns part, and to the Deads part, and Office of Execu∣tory, excluding the other: who was found to succeed to no part, as being renounced in favour of her Father, and returning back from him by his Suc∣cession; but that it accresced to the other, though she was not Executrix nominat, but dative. And therefore the Confirmation of her, sole Execu∣trix, was sustained. January 27. 1680. Agnes Sandielands contra Rachel San∣dielands.

There is an other considerable difference, betwixt the condition of the Wife and Children, introduced by the Act of Parliament 1641. revived Par. 1661. cap. 32. whereby Bonds and Provisions bearing Clause of Annualrent, which before were heritable, and so fell not within Executory; now are moveable, as to the Bairns, nearest of Kin, Executors, and Legatars, only excluding the Relict: and are disposeable by Legacy, or Nomination, and at the Defunct's disposal, by Testament, or any Deed on Death-bed. And they are exhaustible by Debts of the same nature, which Debts of that na∣ture, do not exhaust the Relicts part: which is inferred by a necessary con∣sequence from the foresaid Act of Parliament 1641. For seing thereby Wives have no Share of their Husband's Bonds bearing Annualrent; as they have not the benefit, so they ought not to be burthened with such Bonds: unless the Husband or Wife die before the Term of Payment of the Annualrent; or that the Bonds become moveable, simpliciter, by a Charge, or Pursuit for Payment thereof, whereby the Creditor's mind is presumed to make the Sum simply moveable. In which Case, the Wife hath both the benefit and bur∣then of such Bonds in her Share, July 14. 1664. Elizabeth Scrymgeour contra Murrays.

Yet the Wife hath her Share of the Annualrent of all Bonds, though heri∣table, due before Dissolution of the Marriage: but no Share of the said An∣nualrents after, nor of the Stock. June 24. 1663. inter eosdem. In this Case, a Bond being payable to the Husband and Wife, the longest Liver of them two, but bearing no Annualrent; the Relict was found to have her option either to lift the whole, and re-imploy it, for her Liferent use; or to have the Half of the Stock, seing it bare no Annualrent: but not to have both the Annual∣rent of the whold, and the Half of the Stock. But Bonds which exclude Ex∣ecutors, are heritable quoad creditorem: but moveable quoad debitorem. Be∣cause the Creditor excludes his Executor: whereas the Debitor's Executor is not excluded, but lyable. But Bonds bearing Clause of Infeftment are simply heritable, both as to the Debitor, and Creditor: for by these, the mind of the Creditor appears, to exclude all others but his Heir, except as to the bygone Annualrents.

48. Heirs are excluded from the Bairns part, though in the Family; be∣cause of their Provision by the Heritage: except two Cases. First, if the Heir renounce the Heritage, in favour of the remanent Bairns: for then the Heir is not to be in worse case than they; but they come in pa∣ri passu, both in heritable and moveable Rights, which is a kind of colla∣tio bonorum: which will hold when there is no Bonds but heritable Bonds.

49. Secondly, If there be but one Child in familia, and so both Heir and Executor; that Child hath not only the Heritage, but the whole Bairns part, and so abates the Relict's part, and Dead's part. Nic. Division of testaments, Kennedy contra his Father's Relict. The like without Collation of the Heritage. January 12. 1681. Catharine Trotter Lady Craigleith contra Rochead Lady Prestoungrange.

50. In the Division of Executory, respect is had to the time of the De∣funct's Death, as to the Relict and Children, though before Confirmation, or any one's owning of the Succession. For then if there be a Wise surviving, and Children, the Exeentory is tripartite, whether the Bairns be of the same Marriage, or some other Marriage. As was found in the former Case. June 17. 1631. Chapman contra Gibson. In which Case, there was but one Bairn, who if the Father had been dead, would have been Heir. The like. July 18. 1624. Henrieson contra Sanders. So the Wife and Children surviving, transmit their Parts to their nearest of Kin ipso jure. And Legatars have Right to, and do transmit Legacies, to their Executors, though they have not insisted or recovered them in their own Life: unless the Legatar die be∣fore the Testator, (for then the Legacy is not due,) or that the Legacy be conditional, and the Legatar die before the Condition be purified. And if any of the Children, who survive the Defunct, die before Confirmati∣on, they transmit.

51. Yea the nearest of Kin, surviving, transmit their Right by the Act of Parliament 1540. cap. 120. Whereby it is clear that the nearest of Kin have a proper Right, and not solly by the Office of Executory. But it is more clear by the Act of Parliament 1617. cap. 14. which maketh jus agnationis, to the nearest of Kin, due by the Executors, though the nearest of Kin be not con∣firmed Executors, and so have Interest only by the Office. And so it was found amongst the Executors of umquhil Patrick Bell in Glasgow, whose three Sisters having confirmed his Testament, one of them was found to transmit her Share to her Children, though she died before Execution. For the Son of that Sister was found to have his Share, albeit the Office of Executory accresced to the two Sisters surviving, and with the Office, the Third of Dead's part. Feb. 11. 1662. The like was found since betwixt Dame Agnes Maxwel and the Earl of Wintoun. And after full Debate, it hath been deter∣mined, that the Jnterest of the nearest of Kin, is only extended to those who are existent nearest of Kin the time of the Confirmation of the Defunct's Te∣stament, which is aditio haereditatis mobilium. And the Executor is haeres fidei∣commissarius, who must restore to the Relicts and Bairns, their part of the free Geer, Debts deduced; and to the nearest of Kin, whether Bairns or any other, in proximo gradu, the time of Confirmation, the Deads part, the Legacies deduced: reserving to the Executors nominat, if they have no pro∣per interest, a Third of the Dead's part, unexhausted by Legacies. So that the Executor adit haereditatem, not for himself only, but for all Parties hav∣ing interest. Which is suitable to the Entry of Heirs in heritable Rights: and whereby jus sanguinis, of the nearest of Kin, is not prejudged; seing immediatly after the Defunct's Death, Edicts may be served, and the nearest of Kin will be confirmed Executor, if a Nomination be not produced. And though any of the nearest of Kin, should die before a Confirmation can be expede; it is an extraordinary contingencie, which Law regardeth not. And the Act of Parliament 1617. which establisheth the Right of the nearest of Kin, by making Executors comptable to them, presupposeth a Confirmati∣on,

before the interest of the nearest of Kin be established. But though the Executor die, before the Testament be execute, there must be an Executor ad non executa, who will be comptable to those, who were nearest of Kin, the time of the first Confirmation. And if any of them die, before they attain their Share; their Bairns or nearest of Kin will have no Right, till they confirm the Testament of the nearest of Kin deceassed, and give up an Inventary, of what will be due to the Defunct's nearest of Kin, by the Ex∣ecutors of the prior Defunct. Neither will the Share of any Bairn, or nearest of Kin, deceassing without Children, belong to the Surviver jure ac∣crescendi: who will not represent them passivè, and be lyable to the Debts. And therefore must be confirmed as Executors to them: and thereby have both an active and passive Title. All which was found. Feb. 14. 1677. Duke and Dutchess of Balcleugh contra Earl of Tweeddale.

52. By the premisses it is evident how Executory is to be divided, what Dead's part is, and how it may be affected with Legacies, or Deeds of the Defunct in Testament, or on Death-bed. For first, all Persons who have no Wife, or Children unforisfamiliat, without Husband, (and Wives, though they have Children) have the whole disposal of the Execu∣tory: and may leave Legacies, and Donations of their moveable Estates, and do other Deeds on Death-bed, equivalent to their free Goods: so that Dead's part is the whole. But if the Defunct had a Wife, and Children un∣forisfamiliat, then the Executory is tripartite: and Dead's part is a Third, the Wife's part is a Third, and the Bairns part a Third. But if the De∣funct have a Wife and no Children unforisfamiliat, the Executory is bipartite: the Dead's part is a Half, and the Wife's part another Half. Or if he have Children unforisfamiliat, and no Wife, the Executory is also bipartite: and in either Case, his Legacies, or Deeds on Death-bed, may be equivalent to the Half of his free Geer. And if the Commissaries by error or mistake make the Division otherwayes, none are prejudged thereby, who are not called, and compearing: but may summarly, without Reduction of the Confirmation, be admitted to claim their Share. Which was so found. Feb. 27. 1627. Ja∣net Ross contra Marion Kello.

Children have a threefold interest in their Father's Executory. First, their Bairns part, wherein their Father cannot prejudge them. Secondly, their in∣terest in Dead's part, whereby they have Title to the Office of Executory, if the Defunct nominat none. Or thirdly, if he die, they have all that is free of Dead's part, not exhausted by Legacy, or by the Executor's Allowance, for his Administration; which is the Third of the Dead's part. And that, when he nominats Executors: unless they be also universal Legatars; or though the Children appear not, to claim their Office, when Executors dative are con∣firmed by the Commissaries.

53. This interest is common to all other nearest of Kin. This is clear by the Act of Parliament 1617. cap. 14. as to Executors nominat, that the near∣est of Kin may pursue them, for the free Geer; even for Dead's part, except a Third to the Executors for their Administration. So that if they have any Legacy, it is imputed as a part of the Third, and the Executor nominat, hath not both, separatim: and he hath but the Third of Dead's part, Debts and Legacies being deduced. So that if there be an universal Legacy to another, the Executor nominat hath nothing. November 29. 1626. Forsyth contra For∣syth. July 9. 1631. Wilson contra Tinto. Where the reason is rendered, be∣cause

before the Act of Parliament 1617. Defuncts might exhaust all their Dead's part by Legacies: and that Act was not to better Executors, but to restrict them. The like January 15. 1674. Pattoun contra Leishman. The like Spots. Executors of Moncrief contra Moncrief. And seing the said Act bears, Strangers being nominat, shall have but a Third of the Dead's part; therefore the Wife will have no more but her Third. Or if one of the Chil∣dren should be nominat, or the nearest of Kin: for none of these are Stran∣gers, and so have nothing for their Administration, but their Expenses. No∣vember 28. 1676. John Ker contra Jean Ker. But concerning Executors da∣tive, this Statute gives them no Share of Dead's part.

54. The order of Confirmation is, that the Commissaries having emitted Edicts, affixed on the Church-door, where the Defunct died, calling all Per∣sons having interest, to confirm; then, according as Parties compear, and compete, they prefer the greatest interest. First, the Executor nominat, then the nearest of Kin. Thirdly, the Relict, Legatars, and Creditors: and all failing, the Procurator fiscal, or such who are surrogat by him; who en∣joyed the whole Dead's part, till their Right were reduced, on a better Title. But since, not only the Wife and Bairns, who may call all Execu∣tors to accompt, for their parts, but also the nearest of Kin, have been ad∣mitted, to call the ordinary Executors dative to an accompt, without Redu∣ction. But before the said Statute, all Executors had the whole profit of Dead's part, as the Narrative of it bears. And yet of old, it appears the Ex∣ecutors had litle benefit, if there was any Debt, heritable, or moveable: for they only were lyable for a year: and thereafter to find Caution to re∣lieve the Heretor, Par. 1503. cap. 76. But these Executors dative have not a Third of Dead's part, for their Administration, though they be Strangers: for the Statute gives that only to Executors nominat, being Strangers. But the Fiscal, by the Trust committed to Bishops to have a care of Defunct's Executo∣ry, and the Quota, which is the twentieth penny of free Geer, should exe∣cute the Executory, where none are nominat by the Defunct. And there∣fore, Executors dative are his Assigneys, surrogat in place of the Fiscal. No∣vember 28. 1676. John Ker contra Jean Ker.

This interest of Children, as nearest of Kin, is never taken away; un∣lese they renunce or discharge, not only the Bairns part, or Portion natu∣ral, but all that they may succeed to, by their Father's Death.

To come now to the Office of Executory, and what power Executors have activè, and how far they are lyable passive; we must distinguish Executors. They are either nominat, or dative, constitute by the Commissaries: and these are preferred according to their several interests in the Executory. And these who are Creditors of the Defunct, preferred hoc nomine, are called Executors Creditors. Executors are also principal, or ad ommissa, & malè appretiata; or ad non executa. And all these may be either Sole Executors or Co-exe∣cutors.

All Executors are obliged, to give up Inventary upon Oath, bearing that they have omitted nothing known to them, nor have misapretiat the same; and must find Caution, to make the Executory foorthcoming, to all Parties having interest. They use also to protest, that what further comes to their Knowledge, they may 〈◊〉〈◊〉 or add to the Inventary: which they may still do,

before another do Diligence, to confirm a Dative ad omissa, & malè appretia∣ta; or before they be pursued for Super-intromission.

55. An Executor nominat in England, was admitted to pursue in Scotland, upon a Confirmation there, without Inventary: in respect of the Custom there, not to make Inventary. Feb. 16. 1627. Lawson contra Bartholemew Kello. But in that Case, an Executor dative, confirmed in Scotland, having found Caution, was preferred to the Executor nominat and confirmed in England. Spots. Executors, inter eosdem.

An Executor being decerned, though not confirmed, may pursue not on∣ly the Defunct's Wife and Bairns, to give up Inventary; but also Strangers. Novemb. 11. 1609. Heriot contra Heriot. But till he be confirmed, or have Licence, he cannot pursue for Payment. Decemb. 12. 1622. Cathcart contra Cu∣ninghame.

56. Executors intending to confirm, use to get a Licence to pursue: which ordinarly bears, excludendo sententiam. Which was sustained, though gene∣ral, to pursue for all the Defunct's Debts, naming none. Hope, Executors, Far∣quhar contra Law. But the Obtainer must be first decerned Executor: for till an Edict be served, and an Executor confirmed, there can be no Title given to pursue. Yet before Confirmation, the Licence may be granted.

If the Decreet be extracted, on such Licence, before Confirmation, the De∣creet is null. Hope, Executors, John Aitkin contra Richardson. Nicol. de acquiren∣da & amittenda hereditate, Janet Tweedie contra Magdalen Lawson. Licences use not to be granted, after the principal Confirmation: and therefore was not sustained as a Title. December 14. 1621. Haliday contra Yet it was sustained, for pursuing a Debt particularly exprest therein, being dubii juris. January 21. 1624. Carnousie contra The like where the Licence was granted to a Creditor surrogat as Executor Creditor, ad omissa. June 30. 1665. Stevenson contra Crawford. Feb. 21. 1668. Scot of Clerkingtoun contra Lady Clerkingtoun.

Executors confirmed, have Right to call for, and uplift all the Defunct's Moveables confirmed. The Executors of a Donatar ofa Liferent Escheat, was found to have Right to the Bygones of that Liferent, before the Donatar's Death: and his Heir to the Profits of the Liferent, after the Donatar's Death, albeit there was no Declarator in his Life. January 28. 1671. Keiry contra Nicolson. But Sums secured by a condition in a Reversion, that no Redemp∣tion should be till these Sums were payed, (where the Disposition was not grant∣ed for these sums, as the Cause thereof,) though they affect the Ground dis∣poned, yet remain a moveable Right, befalling to Executors. Feb. 18. 1676. Thomas Wauch contra Doctor Jameson.

57. It useth to be controverted, betwixt the Heir and Executor, about the Rents of Lands, and others, which run according to the legal Terms. So if the Heretor, or Liferenter, survive Whitsunday and Martinmasse; their Execu∣tors have that whole year, albeit it be Victual payable at Candlemasse. because the last legal Term is Martinmasse. And it was so decided, even in the Case of a Miln. Feb. 21. 1635. Laird of Westnisbet contra Laird of Swintoun. The like was found, albeit the Entry of the Tenent was at Whitsunday and the conventional Terms of Payment of the Miln Rent, were, the first Half at Candle∣masse,

and the second at Whitsunday; That Liferenter surviving Martinmasse, be∣ing the last legal Term, had the Rent of the Miln, both payable at Candle∣masse and Whitsunday, after that Martinmasse. July 20. 1671. Guthry contra Mac∣kerstoun. But if they live only till Whitsunday, then their Executors have the Half of the Rent, Victual, or Mony: if they live till the Term-day, though they die that Day, their Executors have that Term wherein they died. It was so found, that the Defunct dying on Martinmasse-day, at eleven hours, his Executors had that whole Years Rent. Hope, Executors, Tenents of Merchi∣stoun contra Napeir. The like, where the Defunct died on Marlinmasse-day in the afternoon, the Executor got that whole Year. 16. of Februa∣ry 1642. Lady Bruntoun Relict of the Bishop of Galloway contra his Ex∣ecutors.

58. Executors have also Right to Steelbow Goods, without prejudice to the Tenent's Tack thereof, to continue till it were expired. Decemb. 4. 1638. Countess of Westmorland contra Countess of Hume. January 28. 1642. Patrick Dundass contra George Brown. June 1681. Mackanlay contra Laird of Ardin∣caple. As to other particulars, it will appear what Rights are moveable, Title Real Rights.

59. Co executors cannot pursue, unless the rest be concurring, or called. March 8. 1634. contra Lag. Yet if any of the Executors confirmed will not concur, and contribute equal Pains and Expense; the Pursuit will be sustained without him: and he may be excluded by a Process before the Commissaries on that ground. June 29. 1629. Young contra Mur∣ray. But when Co-executors have ohtained Sentence, and so execute the Te∣stament, every one may pursue for their Shares, severally, without concourse or calling the rest. January 25. 1665. William Menzies contra Laird of Drum.

One Executor cannot discharge a Debt, wholly: seing the other Execu∣tors have equal Share in all. March 17. 1630. Semple contra Mackie and Dob∣bie. Yet this Debitor alledging, that the Executors pursuing, had received their full Share; it was sustained. March 24. 1680. inter eosdem. An Executor's Discharge was sustained, though the Executor dyed before the Testament was registrat, he having confirmed, made Faith, and found Caution. Hope, Executors, Elizabeth Lawson contra Lady Humby.

Amongst Co-executors the Office accresceth to the Survivers, who are in the same case as if the defunct Executor had not been named. Only in so far as the Testament was execute before that Executor's Death, his Share is transmitted to his Executors, and accresceth not: but is transmitted cum onere debitorum defuncti pro rata. And it seems the defunct Executors, being Stran∣gers, should have only a share of a Third of Dead's part, so far as execute in their Life: seing that benefit followeth the Office, and should be proportion∣able to the effect, and charge thereof.

60. Assignations granted by Executors, have only the effect of Procurato∣ries, and ceass by the Death of the Debitor: unless they have attained effect by Sentence, or Satisfaction, whereby alone the Testament can be execute. And if all the Executors die before the Testament be execute, in so far as it is not execute, the Goods remain in bonis 〈◊〉〈◊〉: and the Assigny cannot pursue, but there must be an Executor ad non executa. But if the Testament was execute by the Executor, by obtaining Decreet for the Sum assigned; the

Assignation is effectual, after the Executor's Death: or if the Assigny obtain sentence or Satisfaction in the Executor's life. For in either of these Cases, the Testament is execute as to that part.

61. If all the Executors be dead, and any part of the Testament unexecute; then there is place for Executors ad non executa. A Testament is execute when the Debt is established in the person of the Executor active, and the Debitor passivè; either by new Security, or by Decreet: or otherways, when it is discharged, or assigned to a party interessed in the Executory. But Litiscontestation doth not execute the Testament. Feb. 20. 1627. Duke of Lennox contra Alexander Weyms. But the Execution of the Testament, doth not establish the full Pro∣perty of the Goods in the Executor, leaving only an Action against him, to the Defunct's Creditors: but he continues as Administrator. And therefore in competition betwixt the Creditors of the Defunct, and the proper Credi∣tors of the Executor affecting the Sums or Goods which were the Defunct's, by Arrestment; the Defunct's Creditors, without respect of Diligence, are always preferred to the Executor's proper Creditors. July 8. 1664. William Veatch contra Lord Lee. December 16. 1674. Kelhead contra lrving and Borthwick. December 16. 1675. Crediiors of James Mastertoun and Eleis Thin. Neither doth the Executors Delinquency or Rebellion confiscat further than their own Interest in the Executory, but not the Interest of Creditors, Legatars, Wife, or Bairns: albeit the Executor have execute the Testament by Decreets. De∣cember 21. 1671. Mr. Arthur Gordoun contra Laird of Drum.

But it may appear, that seing now the nearest of Kin surviving, transmit their part of the Executory to their Executors, though they die testamento non executo; there should be no need of Executors ad non executa: but the Executors of the Wife, Bairns, and other nearest of Kin, might confirm the same in their Testament, and not in the first Defunct's Testament; not being in bonis primi defuncti, but secundi, being transmitted to his Successors. But this is not consequent, or consonant to our Custom. And therefore, to clear this difficulty, advert, that though the Right to the Goods, be in the nearest of Kin surviving; yet the administration and possession is in the Exe∣cutor. And therefore, the Goods are still said to be in bonis defuncti, till they be established in another's person, active, by execution. So that their Goods remain in bonis primi defuncti, though all his Executors die, as well as one, and are not in bonis of the nearest of Kin, who have but an Obligation on the Executor, or jus ad rem, whereby the Goods are still said to be in bo∣nis defuncti. So that all the Executors of the Defunct dying, there should be a Confirmation ad non executa: yet if the nearest of Kin die, there may be another Confirmation of his Executots to establish the Right of the nearest of Kin in their person; to the effect his Executors may pursue the first De∣funct's Executor ad non executa. In the same way as if the first Executor had been alive, and the nearest of Kin had died before execution; the Execu∣tors of the nearest of Kin, behoved to confirm his Right, and thereupon re∣presenting the nearest of Kin, pursue the Executor of the first Defunct, as the nearest of Kin himself could have done. If it be objected, that there is no Representation in mobilibus: the answer is, that this is to be understood at the time of the Defunct's Death; whereby those only who survive, have Right per capita, and not the Descendents of those who died before the Defunct. But if all survive, the Right is in all, and transmitted, not by Right of Repre∣sentation, but as jus quaesitum, to their immediat Predecessors. And though the Office will belong only to those, who are alive the time of the Confir∣mation,

in the nearest Degree to the Defunct; yet the nearest of Kin to those who survived the Defunct, and died before Confirmation, will get the Share of their surviving Parent, as to the Bairns part or Relicts part: because these are not properly Succession.

But as to the Deads part, which befalleth to the nearest of Kin jure agna∣tionis, it is conveyed by a proper Succession to the nearest of Kin: wherein Children unforisfamiliat, succeed as nearest of Kin, and so are lyable to the Legacies, and Deeds of the Defunct on Death-bed, as to the Deads part; but not as to their Bairns part. And therefore Bairns surviving their Father, though they die before Confirmation, they transmit their Bairns part, but not Deads part, unless they also survive the Confirmation; that being aditio haereditatis in mobilibus.

62. Executors ad omissa, & malè appretiata, ought to call the principal Executor to their Confirmation: else their Confirmations are null. February 14. 1622. Bain contra March 12. 1631. Duff contra Alves. But this holds not in Executors Creditors ad omissa. June 28. 1623. White contra These having a more favourable interest, for satisfying their own Debt.

It may be questioned here, Whether those things can be called malè appre∣tiata, which are pretiat by the Defunct himself? Doubtless modica differentia is not to be regarded: but if the Price be considerably to the lesion of Cre∣ditors, Legatars, or others, as being a Half, or Third within the just Price, they may be repretiat. Feb. 1. 1662. Belshes contra Other∣ways it stands: though both the Quantity and Price were known to be greater, the Difference not being exorbitant. Feb. 2. 1672. Agnes Nimmo contra William Martin. And Executors are comptable, according to the ordinary Prices: seing id non agebatur by the Price, to gift to the Executor; unless it had been exprest that the Price should not be questioned. And then it is as a Legacy to the Executor, and to be imputed in part of the Benefit of his Office: and prejudges none, but Legatars. For the Defunct can do no Deed on Death-bed, or in Testament, further than extends to the Dead's part. An Executor ad omissa pursuing the principal Executrix, who de∣poned that she had confirmed her Husband's Corns, by an Estimat thereof, in the Barn-yard, by skilled Men; but that it had arisen some Bolls higher: and that she had confirmed a part of a Sum, contained in a Bond granted to her Husbands, because she knew the rest was payed: she was found lyable, not according to the Estimat, but according to the Quantitie the Corns arose to; and for the whole Sum contained in the Bond: unless she produced the Bond, that the Executor ad omissa might proceed thereon for the rest; or otherways, that she proved that part she omitted, was payed by the Debi∣tor: and that her oath of Knowledge could neither exoner the Debitor, nor her Self. November 6. 1679. Alexander Bruce contra Anna Douglas. And an Executor was made to depone, upon the Goods, Quantities and Prices, in the Inventary, at the instance of an Executor ad omissa, notwithstanding the principal Executor's Oath at the Confirmation. July 18. 1667. Jean Ker contra John Kiv.

63. Executors Creditors must instruct their Debt before the Commissaries. And therefore if they have no Writ to instruct it, they may pursue the near∣est of Kin cognitionis causâ. And having obtained Decreet, it will instruct

their interest, to get Confirmation as Executors Creditors: which being done they need not instruct their Debt to the Defunct's Debitors, or others, but the Confirmation is sufficient; the Debt being but the ground, on which the Commissaries preferred them to be Executors dalive. Spots. Testament, James Reid contra James Lochier. So that no Objection against their Title or Debt, or that they are satisfied by the Executory or otherwise, will exclude them: as that the Debt was a Bond on Death-bed, though proponed by other Exe∣cutors Creditors, confirming within some dayes after. Feb. 16. 1628. Credi∣tors of Adam Marshal contra Byres. And therefore, they may confirm, and uplift much more than the Debt due to them: but are lyable for the superplus. But their Confirmation prejudgeth not other Creditors, who used Diligence before the Confirmation.

64. So much for the Office, Power, and Interest of Executors activè. Let us now consider their Duty and Burthen passivè. And that is, first, All Exe∣cutors are lyable for Diligence in executing the Testament, but not all equally: for those who have a profitable Office, are lyable for more Dili∣gence, than these who have not; as Executors nominat, where Dead's part is not exhausted with Legacies, are most obliged for exact Diligence. But if there be an universal Legatar, whereby the Executor hath no benefit, the Executor is only lyable quoad dolum & latam culpam, and for supine negli∣gence; but not to use Horning and Poinding, but to assign when ever the Legatar insisteth. June 11. 1629. Nivine contra Hogs. The like as to a spe∣cial Legacie, whereof the Executor had no benefit, and the Legatar might have pursued for it himself. December 2. 1628. Port contra Morison.

The ordinary Diligence required of Executors, is Sentence and registrat Horning against the Defunct's Debitors: but how soon this must be dispatch∣ed, is according to the difficulty and length of the Process, quod est in arbitrio ju∣dicis. Executors are lyable in the first place, to the Defunct's Creditors, se∣cundûm vires inventarii, and no further. And that not only to the Creditors, to whom moveable Debts are due: but also to the Creditors in heritable Debts or Obligements prestable by the Executor, not consisting in facto proper to Heirs, as to dispone Land, &c. December 14. 1609. Gray contra Craig. February 24. 1627. Carnagie contra Lermonth. Hope, Executors, Adam contra Gray. And so were found lyable, to imploy a Sum on Land or An∣nualrent for a Wife's Liferent-use. Hope, Executors, John Tran contra James Jackson. February 17. 1632. Kincade contra Yeoman. Where the Execu∣tor was not only found lyable to imploy the Sum, but to pay the Annual∣rent of it. March 12. 1622. Sir William Fairly contra Executors of Fairly. And also for Warrandice of an Infeftment, being liquidat. July 22. 1630. Salmond contra Orre. And an Executor was found lyable to pay a Credi∣tor of the Defunct, the Price of Lands sold to the Defunct by a Minute: without restricting the Creditor to the Heir, who only would get the Right of the Land by the Minute, which remained incomplete; or without caus∣ing the Creditor dispone the Land to the Executor, in lieu of the Move∣ables exhausted by the Price: reserving to the Executor Relief against the Heir as accords. July 1. 1662. William Baillie contra Margaret Henrison. And generally Creditors have their option, to pursue the Heirs or Execu∣tors of their defunct Debitors. Yet Executors were not found lyable for an annual Payment for Years after the Defunct's Death, but only his Heir. Febrnary 5. 1675. Mr. Ninian Hill contra Maxwell. But if there had

been no heretable Right to affect, the Executor would have been found lyable.

It was long dubious, whether Executors Creditors were lyable for any Diligence, seing they confirmed for Payment of 〈◊〉〈◊〉 own Debts, and therefore were only obliged to assign to Creditors after the Executors them∣selves were satisfied; or at least that they had sufficient time to recover Satis∣faction. Till the Lords by Act of Sederunt of the 5. of March 1679. de∣clared Executors Creditors, lyable for what they confirm, as other Execu∣tors dative: but that they are not 〈◊〉〈◊〉 to confirm the whole Inventary. And that they might have Licence to pursue, to find out the most solvent Deb of their defunct Debitors, making Faith that they doubted of the ex∣istency 〈◊〉〈◊〉, or 〈◊〉〈◊〉 of these Debts; and finding Caution to confirm what they found good Debt. And that other Executors might be confirmed ad omissi, who should be lyable to all Parties as principal Executors. The reason whereof was, because the Means of Orphans, might be neglected by the Confirmation of Executors Creditors, who were obliged to give up, and confirm a full Inventary upon oath, though far exceeding their own Debt, whereby other Executors that were obliged to Diligence, were ex∣cluded and hindered.

Executors Creditors, are lyable for the Defunct's priviledged Debts: as funeral Expenses, Servants Fees for a Year or a Term as the Servants 〈◊◊〉〈◊◊〉: which are preferable to the Executors Creditors own Debt. Nov. 25. 1680. David Crawford contra Huttoun.

65. But the Executors have Relief of all heritable Debts against the Heir, as the Heir hath of moveable Debts against the Executor. July 30. 1630. Carnousie contra Meldrunt. December 11. 1632. Geills Shaw con∣tra Shaw.

66. Executors may not prefer one Creditor to another: and so may not make voluntary Payment, but upon Sentence without Colinsion. And if before Payment any other Creditor use Citation, they may not pay securely, till in 〈◊〉〈◊〉 Double-poynding the Creditors be called, and dispute their preference. December 2. 1628. Lyel contra Hepburn. December 16. 1629. White contra Relict of the Master of Jedburgh. July 8. 1634. Dame Margaret Prestoun con∣tra Executors of Hepburn. Unless the Creditor citing, pass from that Instance. December 4. 1623. Rochead contra Manderstoun.

And therefore the ordinary Defence is, That the Executor is exhausted by Payment, made upon Sentences before intenting of the Pursuer's Cause. Yet if the Executor have payed, he may alledge, That the Creditor to whom he hath payed, had done more timous Diligence, and so was preferable: in which case he will be heard as that Creditor were competing. And Exe∣cutors may pay Creditors whose Debts are acknowledged in Testament, without Process, if the same be payed before intenting of any other Credi∣tor's Pursuit: but after Citation Debts may not be payed, though given up by the Defunct in Testament. March 31. 1624. Lady Curriehill contra Laird of Curriehill, Nicol. de haereditariis actionibus. March 28. 1627. contra Anderson. Neither may the Executor pay any other Debt, though before Citation, in prejudice of the Debts in the Defunct's Testament, which puts the Executor in mala fide, and in necessity to suspend on Double-poynding,

though these Debitors testamentary insist not. March 8. 1631. Duff con∣tra Alves. Nicol. de haereditariis actionibus. March 28. 1631. Scougal contra Horseburgh. Yea Executors may not safely pay any Creditor of the Defunct, not being a testamentary or priviledged one, but upon Sentence. Other∣wise Executors might before any Pursuit prefer what Creditors they pleas∣ed. June 7. 1677. Andrew contra Anderson.

67. But because Creditors, Relict, Bairns, or Legatars, may pursue the Executor immediatly after the Confirmation, before Executors can do Dili∣gence; therefore they cannot be decerned to pay: but either time will be granted to do Diligence; or the Executor will be liberat, upon granting Assignation to parts of the Inventary. Wherein the Creditors will be first pre∣ferred, and next the Relict, Bairns, and Legatars.

68. And because Creditors at distance, may be excluded, not knowing of the Defunct's Death; therefore the Lords by Act of Sederunt. February 28. 〈◊〉〈◊〉. did declare, That all Creditors of Defuncts, using legal Diligence, at any time within half a Year, of the Defuncts Death, by confirming themselves Executors Creditors, or by Citation of the Defunct's Executors, or vitious Intromettors with their Goods; shall all come in pari passu, without respect of the prioritie or posterioritie of their Diligence. Whereunto it is necessarly consequent, that all Decreets against Executors, within six Moneths of the Defuncts Death, except for priviledged Debts, ought to bear Superceeding exe∣cution for seven Moneths at least, after the Defunct's Death: that in the se∣venth Month Executors may suspend upon Double-poinding, all Decreets a∣gainst them within six Moneths of the Defunct's Death. To the effect all the Creditors may come in joyntly, if they exceed not the Inventary: and if they do exceed, they must suffer proportional Abatement. But if the In∣ventary exceed all the Debts, the Relict, and Bairns, will have their Shares, of what is free: and Dead's part will be applyed to the Legatars, who if their Legacies exceed, must suffer proportional abatement; but if they be less, the Remainder will belong to the Children or other nearest of Kin.

69. After the six Moneths are run from the Defunct's Death, and all Debts, recovered in that time, are fatisfied; Creditors pursuing thereafter, are preferable, according to the Sentences recovered by them, without col∣lusion. As if the Executor defend against one, and not another; or that af∣ter Process before the Lords, other Creditors prevent them by prior Senten∣ces before inferior Courts: the first Citation will be preferable, if they have not been negligent.

70. If the Executor make payment, bona fide, to the Relict, Bairns, or Legatars of the Defunct, before intenting of any Creditors Cause; he will be secure, against Creditors intenting posterior Process: for he could not hin∣der the Payment of these, upon unknown Creditors. But voluntary Pay∣ment, without Sentence at the instance of the Relict, Bairns, and Legatars, will not secure him. By the Roman Law Legatars were obliged to find cau∣tionem mucianam, obliging them to refound their Legacies, in case posterior Creditors did pursue. l. si cujus es ff. de jure deliberandi, which hath not been accustomed with us. But there is competent to such Creditors, Action of Repetition, against the Relict, Bairns, or Legatars, which will be instructed by the Discharge to the Executors.

71. Testaments or Confirmations are execute, when the Inventary is established in the person of the Executor, either by obtaining payment Bond or Decreet. Yet thereby the Executor becomes not to have the full Propertie of the Defunct's Goods and Debts so established: but he remains Fideicommissarie, and is obliged to restore. Yea the Decreet, or Bonds gran∣ted to him for the Defunct's Estate, may be affected for Debts due by the Defunct. And in Competitions betwixt the Creditors of the Defunct, and the Creditors of the Executor, the Defunct's Creditors are preferable: though the Creditors of the Executor proprio nomine, have done more Diligence. And for the same cause the Rebellion of the Executor or his Delinquency doth not confiscat the Executory, although established in his person by Decreets, in prejadice of the Defuncts Creditors; but only the Executors own Interest therein. December 21. 1671. Mr. Arthur Gordoun contra Laird of Drum.

72. But Executors may safely pay funeral Expenses, comprehending Me∣dicaments to the Defunct: because these have a Priviledge, from the common Obligation of Humanity to bury the Dead; and therefore are preferable to all other Debts of the Defunct, and so may be payed at any time. Decem. 16. 1674. Kelhead contra Irving and Borthwick. Item Servants-fees for a Year or Term as they are hired, and a Term's House-maill or Cures to the Defunct on Death-bed, have the like Priviledge.

73. Arrestment was found habilis modus, to put the Executor in mala fide to pay other Creditors, not calling the Arrester, who being a Cautioner, arrested all Sums in the Executor's hands due to the Creditor, though he had not used Diligence thereupon to make foorthcoming. June 14. 1625. Andrew Couper contra Lady Haltoun. Yet without legal Diligence or Inti∣mation, exhausting as aforesaid was not found relevant against a Creditor, whom the Executor had acknowledged ypaying Annualrent to him. Spots. Executors, Janet Telfer contra Moffat. The Executory is likewise exhausted, by Debt due to the Executor himself, without any Process but meerly by exception of Compensation, though he be not confirmed Executor qua credi∣tor, but Executor otherwise.

74. The Defunct's Debitor will not get Compensation, upon an Assigna∣tion to any Debt of the Defunct's taken after the Defunct's Deceass, where∣by that Debitor would be preferred to other Debitors doing Diligence. Feb. 8. 1662. Thomas Crawford contra Earl of Murray. Feb. 14. 1662. Children of Mouswell contra Lawrie of Maxwelstoun. And likewise, if the Executor had payed a Debt, for which he or his Predicessor was Cautioner for the Defunct, whereof the Terms were past before Payment, (though without Process) it may be allowed: but not for Cautionry, not payed before intenting of another Creditor's Cause. Januarie 26. 1628 Adie contra Gray.

75. The old Custome was, that Executors behoved to get Exoneration before the Commissaries, calling the Creditors and all having interest, and compting to them. And it was not relevant to alledge Exhaustine, by Ex∣ception, but there behoved to be a Deereet of Exoneration obtained, which is the only sull and general Liberation. But it is not valid against Creditors having out the Executor in mila fide, as being Creditors testamentarie, or 〈◊〉〈◊〉 by the Executor, or using Citation or Arresiment. June 14. 1625.

Andrew Couper contra Lady Haltoun. Neither is Exoneration valid being ge∣neral, not containing a particular Accompt. March 10. 1632. Lady 〈◊〉〈◊〉 contra Haddo.

76. But now for a long time, the Lords have been accustomed to admit the Exception of Exhausting, albeit there hath not been a Decreet of exone∣ration obtained. For instructing Exhausting, Executors may found upon Pay∣ment of the priviledged Debts at any time: upon the Expense of Confirma∣tion: upon Debts due to themselves, before Confirmation; but not upon Debts assigned to them after Corfirmation: upon Payment of testamentary Debts, after six Moneths, though without Process: upon Payment of other Debts thereafter, according to the priority of Diligence: upon Absolvitors of Debts due to the Defunct in the Inventary: upon Diligence by Process or Execution for recovery of the Defunct's Debts not recovered: and upon Expenses of Process or Execution; seing Executors get no Expenses modifi∣ed against the Defunct's Debitors, who are not obliged to pay, without Sen∣tence. All which being allowed, if any thing in the Inventary remain un∣recovered; the Executors will either get time to do further Diligence, or will be liberat, granting Assignations to the Creditors according to their Di∣ligence.

Executors are not obliged to make faith on the Defunct's Debts, except in so far as may concern the Executor, without prejudice to Creditors, Legatars, Wife, Bairns, and nearest of Kin. Spots. Executors. Monteith contra Katha∣rine Smith. March 6. 1627. Scot contra Cockburn. March 13. 1627. Ker contra Lady Covingtoun. And therefore they cannot exoner themselves by Decreet, upon their Oath or holding them as confess'd, without having other probation which may be taken off by the Executors Oath. Nicol. hic, Bell contra Gib.

Executors are not conveenable Severallie nor lyable in solidum but pro vi∣rili parte: unless they have intrometted with as much as will satisfie the Debt in question. July 22. 1630. Salmond contra Orre. July 23. 1625. Mr. Peter Ewat contra Atkin. July 12. 1626. Turnbull contra Mathison. Hope, Legacies, Mackmichael contra Mackwharie.

If any of the Executors be dead, the Office accresceth to the Survivers: and they are lyable and conveenable alone. But if the deceased have intromet∣ted with, or done Diligence for any part; in so far as the Testament was exe∣cute before the Executor's death, it liberats the Survivers, and the Pursuers must have access to those representing the deceassed. But for what is want∣ing through negligence of the whole Executors, the Survivers are lyable. And so where the deceassed had intrometted with their Share, the Survivers were only found lyable for their own parts. Hope, Legacles, Haliday contra Halidly. July 16. 1628. Peacock contra Peacock. July 23. 1625. Atkin con∣tra Mr. Peter Ewat.

Executors are lyable for the Inventary, without necessity for any to prove that they intrometted therewith: which is presumed, unless the Executor show his Diligence, and how he was excluded. Which was sustained as to the Moveables of the Defunct, consirmed by an Executor Creditor. Februarie 7. 1679. Pearson of Kippen-Ross contra James Wright. And likewayes an Exe∣cutor was foundly able for Sums confirmed, due by Bonds whereof the Dates

were exprest in the Confirmation: which were presumed payed, seing the Bonds were not produced. Januarie 29. 1681. Gray contra Brown.

Executors are to be confirmed ubi defunctus habuit domicilium: and these who have Houses or Residence in divers Commissariots, the chief Residence is the Domicile, and that Commissary only confirms the whole, though in other Jurisdictions. June 25. 1611. Laird of Abercrombie contra The Wife's Domicile follows her Husband's: and though she resided several Months in another Comissariot and died there, yet her Testament was con∣firmed where her Husband resided. July 23. 1622. Procurator-fiscal contra Lady Gordoun. But as to Defuncts residing out of the Countrey, their Te∣staments are confirmed at Edinburgh, Yet if they die in Edinburgh, or else where, not animo remanendi; their Testaments are not to be confirmed at E∣dinburgh, but where they had their Domicile. So albeit a Defunct had dwelt in Edinburgh half a year, in a House taken for a year and furnished for himfelf; it was found that his Testament behoved to beconfirmed in the Countrey: be∣cause he had his principal Domicile there with some Children and Servants, and attended only at Edinburgh on Law Affairs. Procurator-fiscal of the Commissariot of Edinburgh contra the Relict and Children of the deceass'd Earl of Panmoore.

TITLE XXXI. Vitious Intromission.

• 1. Vitious Intromission onlie a passive and no active Title, even against other vitious Intromettors, with∣out Assignation from the Credi∣tor.
• 2. Vitious Intromission is the 〈◊〉〈◊〉 e∣tensive passive Title, reaching onlie those who might 〈◊〉〈◊〉 Defunct, but all other 〈◊〉〈◊〉 mettors.
• 3. The reason of the large extent of Title.
• 4. All vitious Intromettors are 〈◊〉〈◊〉 in solidum, and conveena 〈◊〉〈◊〉 verally.
• 5. Whether vitious Intromission be com∣petent by Exception?
• 6. Vitious Intromission sustained ge∣nerally, without the Pursuer's Condescendence.
• 7. Vitious Intromission is onlie compe∣tent to Creditors.
• 8. How far vitious intromssion must be universal.
• 9. Vitious Intromission is excluded, if Executors were confirmed be∣fore Citation, though after the Intromission.
• 10. Whether Executors Creditors, being confirmed, exclude 〈◊〉〈◊〉 In∣tromission pursued thereafter.
• 11. How far Confirmation of Executors although after Citation, ex∣cludes vitious Intromission.
• 12. Super-Intromission.
• 13. Vuious Intromission how far ex∣cluded by Gift of Escheat and Declarator.
• 14. Vitious Intromission is excluded, by anie colourable Title, though defective.
• 15. The Cusiom of England as to Intro∣mission.
• 16. Vitious Intromission sapit deli∣ctum, and is onlie competent against Intrometters themselves during their lise.
• 17. How far vitious Intromission is ex∣cluded by acquiring bona fide?

VITIOUS Intromission is only a Passive Title, making the Intrometter lyable to all the Defunct's Debts, passive: but is not an active Title, whereby the Intrometter can call and pursue activè. For there∣upon there is no ordinary Action com∣petent at the instance of the Intrometter, against his Complices, for mutual Relief: but the Intrometter paying, must only make use of the Creditor's name to give him a Title, upon the Creditor's Assig∣nation; which will necessitat the other Intrometters to satisfie but only pro rata, they alledging that it is to the behoose of another Intrometter, whose part at least must be abated.

2. This is the largest passive Title, extending not only to those who have relation to the Defunct, and have a Title to be his Heir or Successor in move∣ables; but to any Stranger intrometting without any interest: whereas gestio pro haerede, and Successor titulo lucrativo post contractum debitum, can be inci∣dent to none but apparent Heirs, qui precipiunt haereditatem. But not only the Children and nearest of Kin intrometting, are lyable in solidum for the De∣funct's whole Debts, but any other Person having no legal interest of Suc∣cession. Which is peculiar to this and no other Nation, and not without ground.

3. The rise and reason of this passive Title is, because Moveables are more easily abstracted from Creditors of Defuncts, than their Lands, or Profits thereof, which every one will not attain without a Title, at least without being apparent Heir therein. But if Defuncts Moveables might be medled with without Confirmation, or making Inventary upon Oath, and no further hazard than single R eitution; there would never be a Confirmati∣on: but both Creditors and Orphans would be highly prejudged by ab∣stracting and concealling the Moveables of Defuncts. And to remedy this, our Law hath introduced this passive Title, that without Confir∣mation or other Title, the Medler shall be lyable in solidum to Cre∣ditors.

4. Vitious Intromission is so far extended, that one Intrometter may be con∣veened singly in solidum, and his alledging other Intrometters will not li∣berat him pro tanto. July 12. 1628. Moristoun contra Laird of Frendraught. But where more persons (viz. two) were conveened together as Vitious Intrometters, and the Probation instructed that both intrometted; they were not found lyable in solidum, but equallie, without consideration of the proportion of their Intromission. November 16. 1626. James Chalmers con∣tra Marshal and White.

5. Whether Vitious Intromission be competent by Exception, or only by Action, is not yet come the length of a current Custom. But there are De∣cisions

favouring either side. As if any person pursue the Executor Heir or Cautioner of a Defunct, the Question is, Whether they may except, That the Pursuer is Vitious Intrometter with the Defuncts Goods, and thereby is lyable to pay his Debts, and so is Debitor aswell as Creditor, & confusu ne tollitur obligatio? It was decided affirmativè, Hope, Exception. Lindsay con∣tra Douglass: but it was decided negativè, November 20. 1630. Pride con∣tra Thomson. And the Negative seems more favourable, not to extend this burthensom and odious passive Title ultra 〈◊〉〈◊〉. And therefore Vitious Intromission may alwayes be purged by Confirmation, before intenting of the Pursuer's Cause. To which it is more consonant that they who alledge Viti∣ous Intromission, should not be permitted to except but pursue: that before the Pursuit the Intrometter may have liberty to purge. It was so found in the Case of an Assigny pursuing, against whom the Debitor pursued alledg∣ed, That the Assigny could be in no better case than the Cedent who was Vi∣tious Intrometter with the Debitor's Moveables, and so was both Debi∣tor and Creditor. Januarie 20. 1671. Captain Ramsay contra William Hen∣rison.

6. Vitious Intromission was also sustained generally, without necessity to the Pursuer to condescend on Particulars: seing the Libel bare the De∣fender to be universal Intrometter with the Defunct's Moveables, which is the ordinary Stile of this passive Title. In which Case the Defender was found obliged to condescend upon particular Moveables which were the Debitor's, and intrometted with by him by a Title. Januarie 20. 1630. Adam∣son contra Ireland. But if the Pursuit be against the Defender as Vitious Intrometter, he ought to condescend upon the special Intromission; unless he refer it to the Defender's Oath, who knows his own Intromission and must either adject a Quality where competent, or propone a Defense, to purge the Vitiositie.

7. This passive Title being so large, wants not its own Limitations and Exceptions. As first, it is only effectual to Creditors, and not to Lega∣tars, or any other Party, who cannot pursue upon this ground, nor for any further than is truely intrometted with, in those Cases where these can pursue Intrometters, as in special Legacies, &c.

8. The Intromission must be universal: not that the Intrometter must medle with all the Defunct's Moveables, but must medle quasi prr universi∣tatem, because Heritage is per universitatem. And he that medles with a Flock of Sheep, medles per universitatem: yet many of the Flock may be medled with by others, but what remains being still the Flock, he is on∣ly said to medle with the Flock. And so Intremission with one thing, or some small thing will not infer this passive Title, to make the Intrometter lyable. So a Relict was not found lyable in solidum, as having intromet∣ted with the Crop of five Bolls of Corn, eating of four or five Sheep, and detaining in her possession thretty more; not upon the accompt of her being Relict, or of necessary Intromission, but for that her Intromission was not Universal. December 5. 1623. Scot contra Levingstoun. But if universal Intromis∣sion be libelled, though the Probation be not so ample, yet if it reach Par∣ticulars of diver Kinds, and these of moment; it was found enough. Ja∣nuarie 12. 1623. Bruce contra Where fewer Kinds of less value proven, were found sufficient reo absente. And Vitious Intro∣mission was inserred, by the Son of a Wright's continuing to work with

his Father's Tools. June 15. 1625. Laird of Abercairnie contra Nicol. This was for a year's Rent due by the Defunct to his Master. But vitious Intro∣mission was not 〈◊〉〈◊〉 by the Servants of a Coal-heugh continuing to use the Instruments of the Coal-work for some time, without determin∣ing whether those Instruments were moveable or not: but the Heir was not found Vitious Intrometter thereby. June 9. 1680. William Brain contra the Earl of Lothian.

9. It seems to be on this ground, that it is a legal Desense against Viti∣ous Intromission, to alledge, That there are Executors confirmed to the Defunct; whether it be the Intrometter, or any other, though the Intro∣metter derive no Right from these Executors, nor had no Warrant of Intromission. Because Executors being Universal Intrometters, there can∣not be more Universal Intrometters severally: and therefore there can∣not be both Executors, and other Universal Vitious Intrometters. And albeit more persons may be conveened as Vitious Universal Intrometters, yet one or other of them must be understood to be sole Vitious Intrometter; or otherwise that they all joyn in Universal Intromission.

Confirmation of Executors was found sufficient to elide Vitious Intro∣mission, albeit after the Intromission the Intrometter caused a person wholly insolvent be confirmed and find a Cautioner insolvendo, and the Intrometter payed the Quote, and was at all the Expense. July 28. 1620. Tenent contra Tenent. Spots. Universal Intrometters. Stevenson contra Paterson.

10. Some have questioned, Whether Confirmation of Executors Credi∣tors could purge Vitious Intromission, seing Creditors do only confirm for their own satisfaction, and not to execute the Defunct's Executory, and so need confirm no more than will satisfied themselves. But I have not ob∣served it repelled, nor is the difference convincing. For albeit Executors Cre∣ditors confirm to their own behoofe, yet are they universal Intrometters, and must confirm all they know, and so make Inventary: albeit their interest to be Executors, be but qua Creditors. And albeit they be not lyable for so exact Diligence as others, it was found relevant to exclude Vitious Intromission, That an Executor Creditor was confirmed. June 20. 1629. Douglass contra Touris. January 20. 1663. Stevenson contra Ker and others. The matter may be more dubious now, since the late Act of Sederunt, whereby Executors Cre∣ditors are not obliged to confirm all they know, or make faith on the Inven∣tary; but so much as they think may secure their Debts: and therefore other Executors may be confirmed. So that the danger and inconveniency of Viti∣ous Intromission remains, and Executors Creditors so confirming, are not Uni∣versal Intrometters. And therefore it is like, that by such Confirmation Viti∣ous Intromission with Moveables not confirmed, will not be excluded by such Confirmation.

11. Confirmation of Executors regularly, is not relevant to purge vitious Intromission, whether by the Intrometter, or others, in so far as concerns those Creditors, who had used Citation and Diligence against the vitious Intrometters before Confirmation, whose Sentences are drawn back to their Citation: espe∣cially si non sint in mora, and so est jus iis quaesitum, at least inchoatum, before Confirmation. Decem. 12. 1609. Durtie contra Clerk.

But this must be limited thus. If the Creditor hath used Citation shortly after the Defunct's Death, there being no competent time to confirm, neither any time limited in Law other than year and day, after which the Executor must be comptable to relieve the Heir: therefore unless the Intrometter were meer∣ly praedo having no interest, as neither being Wife, Bairn, nearest of Kin, or having a Disposition without delivery; it is sufficient to confirm after the in∣tenting of the Creditor's Cause, being within year and day. In which case the Intrometter confirming will be lyable secundum vires inventarii, albeit only con∣veened as Intrometter, not as Executor: without necessity of a new Process. It was so found in the Case of the Defunct's Son, who intrometting, and being cited, yet confirming within year and day; was but lyable as Executor. January 24. 1628. Aldie contra Gray. Hope Executors, Bald contra Hamiltoun. Spots. eod. Thomson contra Laird of Rentoun. Jan. 28. 1663. Margaret Stevenson contra Ker and others.

12. The Exception of Confirmation of Executors is elided, by alledging That the Intrometter, though having confirmed, yet hath fraudently concealed some part of the Goods and Means, not put in the Inventary. Which Super∣intromission dolosè, is relevant to elide Confirmation. Hope Executors, Raeside contra Cathcart. Spots. eod. Cleiland contra Baillie. Which holdeth, if the Intro∣mission were before the Confirmation: but if it was after, it useth not now to be sustained, till the Creditor confirm as Executor dative ad omissa, that the Quote be not lost. July 8. 1676. Irving contra Forbess of Tolquhon.

Super-intromission was also sustained without a Dative ad omissa, to elide Ex∣hausting proponed by an Executor. Jan. 14. 1639. Margaret Inglis contra 〈◊〉〈◊〉 Bell.

13. When Defuncts die at the Horn, Declarator of their Escheat hath the same effect to exclude Vitious Intromission as the Confirmation of their Execu∣tors; not only competent to the Donatar intrometting, but to any other In∣trometter: for both being Universal Titles, reaching the Defunct's Moveables, every Intrometter there with is lyable. Decem. 15. 1638. Ogilvie contra And a Gift of the Escheat obtained by the Intrometter, albeit after the Intromission, being before Citation at the instance of the Creditor pur∣suing; was found relevant to exclude Vitious Intromission: because the Do∣natar needs no Declarator for what was in his Possession, Nicol. de haereditariis actionibus, Moodie contra Hay of Fourlands. But if the Gift were taken before the Defunct's Death, if it be simulat, by the Defuncts retaining Possession du∣ring his Life; it will annull the Gift and Declarator, and exclude the Defense thereupon: as was found in the foresaid Case, Ogilvie contra

Nor will a Gift and Declarator be sufficient against any Creditor pursuing the Intrometter, the Gift being post motam litem. Or though the Gift was ante motam litem, it will only defend the Donatar intrometting, or those deriving Right from him: but not other Intrometters, as Had. observes, but expresseth not the Parties. Jan. 25. 1611. And as was found in the Case of the Intrometter's obtaining a Gift ante motam litem, though after his Intromission: although Ci∣tation was used before Declarator. July 17. 1635. Lord Johnstoun contra John∣stoun. Jan. 22. 1675. Chalmers contra Agnes Gordoun. And Vitious Intromis∣sion was elided by an Heir's Intromission with his Father's Moveables, having obtained a Gift as soon as was possible, his Father having died Rebel in Sepemb. and the Gift being obtained in Novemb. so soon as the Exchequer sat, albeit the Gift was after Citation. January 8. 1680. John Urquhart contra Arthur Delgarno. Yea if the Intrometter did intromet by Right or Warrant from the Donatar, whose Gift was ante motam litem albeit before Declarator, it is sufficient. As was found by a Tolerance from the Donatar. Nicol. de haereditarits actionibus

Cairncross contra Crookshank. And by a Warrant from the Donatar. July 4. 1665. Mr. Walter Innes contra George Watt. But it is not relevant to alledge, That the Defunct died at the Horn, and thereby had no Moveables, which were become escheat to the King. Feb. 7. 1662. Gray contra Dalgarne.

14. Vitious Intromission is also restricted to the single value, when it is by ver∣tue of a Disposition from the Defunct, albeit the Disposition was found null by Reply, as done in defraud of Creditors, by a Husband to his Wife. June 16. 1671. Bonar contra Lady Couper. And a Disposition of Moveables, with an Instru∣ment of Possession, being for a cause onerous, granted while the Defunct was on Death-bad though there was no natural Possession till after his Death; wassus∣tained to purge Vitious Intromission. July 6. 1664. Alexander Brown contra Lawson. But a Disposition of Moveables, where the disponer retained Posses∣sion during his Life, was not sustained. Nicol. de haereditariis actionibus, Strachan cont. Scot. The like where the Disposition was to the Defunct's Son's Wife: seing the Defunct retained Possession for a considerable time; his Son and his Wife being with him in Family June 28. 1632. Dalrymple of Waterside contra Laird of Closeburn. So that such Dispositions, if the Defunct live long after retenta possessione, are not sufficient, as in the last two Cases. But if the Disposition were shortly before the Defunct's Death, that his continuing in Possession would not 〈◊〉〈◊〉 simulation or frand, the same would purge the Vitious Intromission, at least restrict 〈◊〉〈◊〉 to the single value.

15. By the Law and Custom of England, Vitious Intromission with a Defunct's Moveables doth only extend to the single value. And therefore Intromission being made in England, was extended no further here. July 26. 1619. Lord Dingwal contra Wanderson.

16. Vitious Intromission being penal, sapiens naturam delicti, is not to be sus∣tained against any as representing the Intrometter, when there is no Action intented against him in his own life: after which, no other can be able to clear the Title of his Intromission with moveableGoods quae transeunt per commercium, and so the Defunct might have bought them bona fide. July 10. 1666. Cranstoun contra Wilkison. And for the same reason Behaving as Heir by Intromission with Heirship-moveable, is not sustained after the Intrometter's Death, as hath been observed in that Title; though there can be less pretence of Commerce in that case. Yet though Decreet were not obtained before the Intrometter's Death, if Litiscontestation were made against him compearing, when it was pro∣per to him to purge his Intromission by any competent Defense; if the same were proven after his Death, it might overtake his Successors: unless the Intro∣mission had been simply referred to his Oath; for then dying before he gave his Oath, his Successors could not be lyable, because he might either have quali∣fied or denyed his Intromission.

17. Vitious Intromission is simply excluded by those who acquire, by way of Commerce bona fide, for a just Price: albeit in some Cases Executors may reco∣ver Defuncts Goods reivendicatione. But where bona fides doth not appear, but Collusion or Fraud, the buying of Defuncts Goods will not be sustained. As was found in the Case of a Party deponing that he bought a Defunct's Goods within ten dayes after the Defunct's Death, when he knew there could be no Confir∣mation of the same, or lawful Title thereto: albeit he deponed that the Seller had a Disposition from the Defunct, but which he did not produce, and his Oath was not found to prove it, but the Acquisition was found to be a Collusion, the Buyer being the Defunct's Goodson, pretending to buy from a Stranger. Nov. 29. 1679. Irving contra Kilpatrick.