Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.

Consolidation.

A Person having Right by Assignation to a comprysing of Lands hol∣den of himself, whether eo ipso that he has the foresaid Right, will the Property consolidate with the Superiority? Seing a Comprysing is e∣quivalent to a Disposition and Resignation thereupon: And the Superior having Right by an Assignation to a Disposition whereupon there is Resig∣nation, and to the said Resignation; It seems that in that case there is Con∣solidation: In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him: And because he cannot Infeft him∣self, the Law doth introduce Consolidation. Ratio Dubitandi is, That Con∣solidation is upon the matter a Seasin of the Property; And a Seasin being facti, cannot be without some deed of the Person, in whose favours the Consolidation is to be made, Declaring that he accepts a Right to the effect foresaid. If it be not fit in such cases, that the Superior should before a Notar and Witnesses Declare, that seing he has both a Right to the Proper∣ty and Superiority in his Person, It is his will and intention that the Pro∣perty should be consolidate with the Superiority; And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam: And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam?

When a Person Infeft in the Property of Lands, acquires and is Infeft in the Superiority. Quaeritur, If eo ipso there be a Consolidation of both Rights? Item if the Superior succeed as Heir to the Right of the Property Quaeritur, If in that case there be a Consolidation, so that Dominium di∣rectum trahit ad se utile? Seing the Superior could not Infeft himself, and by his purchasing of the Property he enters to the Right thereof, and so the Property is consolidate fictione juris, in the same manner as if he had been Infeft.

If vice versâ, The Proprietar acquire the Superiority, If eo casu there be a Consolidation of both Rights? Answer. It is thought, not: And that Dominium utile cannot draw to it directum, without Infeftment by the Su∣perior of the Dominium directum.

If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer; be thereafter In∣feft as Heir to his Father in the Superiority of the said Lands, which be∣longed to his Father and his Heirs Male. Quaeritur. Whether there will be a Confusion and Consolidation of the Property and Superiority? It is Answered. During his Lifetime there will be a kind of Consolidation, see∣ing he cannot be Superiour to himself: But it will cease by his Death, so that the Superiority will belong to his Heirs Male, and the Property to his Heirs whatsomever.

If he intends that there should be a Consolidation, what course is to be taken to that purpose? Answer. If, as in the case foresaid, he was Infeft first in the Property and then in the Superiority, he must dispone the Pro∣perty to a Confident; And the Confident being Infeft must resign ad Re∣manentiam, to the effect the Property may be consolidate with the Superio∣rity to him and his Heirs Male and their Successors.

If a Superior should succeed in the right of the Property. Quaeritur. If there be a confusion of both Rights in his Person? Answer. It is thought, though they may appear to be a Consolidation dureing his Lifetime, they are nevertheless distinct; Seing the right of the Superiority may be to Heirs Male, and the Property to Heirs whatsomever: And the said Heirs may succeed Respectivè.

If the said Superiour, being Infeft in the Right of the Superiority, succeed thereafter in the Right of the Property, what way shall he be Infeft there∣in, seing he cannot Infeft himself? Answer. It is thought that it is not inconsistent, that the Superior may give Precept to give Seasin to an Actor∣ney in his name and for his use.

If the said Superior intend that the Property should be consolidate with the Superiority, what way shall it be done? Answer. He may direct the said Precept in these Terms for Infefting him: And seing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority; The Precept may be in these Terms, to give Seasin to the effect the Property may be consolidate with the Superiority; To be hol∣den both of his Superior in all time coming, in the same manner as if they had never been severed.

If a Precept may not be obtained in subsidium out of the Chancery, for Infefting the said Person in the property to be holden of himself, seing he cannot Infeft himself? Answer. It is thought that a course may be taken upon a Bill to the Lords, ordaining the Director to the Chancery to di∣rect a Precept upon the reason foresaid.