LAW. 



667 



L t. All right* of r affecting lands, under which are 



* comprehended houses, mills, fishings, teinds ; and all 

 " right* of subjects that arefnid-i n'tnein, whether com- 

 1 t>y seisin or not, are heritable ei tua natura. On 

 the other part, every thing that moves itself, or can be 

 moved, and in general whatever is not united to land 

 is moveable ; as household furniture, corns, cattle, cash, 

 arrears of rent and of interest, even though they should 

 be due on a right of annualrent ; for though the arrears 

 last mentioned are secured on land, yet being already 

 parable they are considered as cash. Bygone feu du- 

 ties like other arrears are moveable, and' consequently 

 belong to the superior's executors. In rights bearing 

 a tract of future time, t. e. rights which cannot be ful- 

 filled at once, and which carry a yearly profit to the 

 creditor while they subsist, e. g. an annuity for a cer- 

 tain term of years, though the arrears due before the 

 creditor'* death are moveable, yet the rights themselves 

 are heritable, both because they yield an annual profit, 

 and because nothing falls under executory but what is 

 instantly payable, and can be gathered in and di.-tri- 

 buted among those that have interest in it So that 

 lisa ill ina them not to be heritable ex tua natura, the 

 heir is the only person that can take them. Leases of 

 land are heritable, both as they have a tract of future 

 time, and aa statute ha* given to them in certain re- 

 spects the effect of real rights of land. 



f , - i .1 S. Debts (nomina debitor**) when due by bill, promis- 



stafcu p*r- snry note or account, are moveable. When constituted 

 *** by bond, they are moveable aa to succession, but heri- 

 " table aa to the fisk and the relict, that is, though by the 

 general rule moveable rights fall under the communion 

 uf goods consequent upon marriage, and the moveables 

 of denounced persons fall to the cron n or fisk by sin- 

 gle tschsat. yet bonds bearing interest <!> neither, but 

 are heritable in both respects. When constituted by 

 bond having a clause of infeftment, they are heritable. 

 VWr* W V Where lands are voluntarily sold, either by a fonn:il 



Iss* ; disposition, or even by a minute of sale, the price, if it 

 *^** *"* be not heritably secured, must as a mme.ible subject go 

 in t.. the seller's executors. But in judicial sales for the 

 behoof of creditor*, the debts continue heritably secu- 

 red on the price tiU payment or the conveyance to the 

 pun hail i ; and therefore in so far as they are'not paid 

 to the creditor himself, they must go to hi., heir. 



5. All questions whether a right l>e heritable or 

 moveable, mu*t be determined according to the condi- 

 tion of the subiect at the time of the ancestor's death, 

 was heritable at that period it must belong to the 

 heir ; if moveable k must fall to the executor, without 

 regard to any alterations that may have affected the 

 (object in the intermediate period between the ances- 

 tor death and the competition. 



Tm r IF. Oftke Ctmitiiition of Heritable Rightt, of 

 t, mud of the respective Rights of the Superior 

 *W Faisal. 



Heritable right* are governed by the feudal law, 

 i owed it* origin, or. at least its first improvements 

 to the Longobards, whose kings, upon having pcnetra- 

 to Italy, the better to preserve their conquests 

 found it their* interest to make grants to their principal 

 commander* of great part of the conquered provinces, 

 to be again subdivided by them among the lower offi- 

 cers, voder the conditions of fidelity and military ser- 







*,:.-. t 



. In feudal questions we are governed, in the first 

 place, hy'our own statutes and custom* ; where tliese 



fail us, we have regard to the practice f neighbouring 

 countries, if the genius of their law appears to be the 

 same with ours ; and should the question still re- 

 main doubtful, we may have recourse to the written 

 books of the feus, as to the original plan on which all 

 feudal systems have proceeded. 



3. This military grant got the name, first of benefi- 

 citim, and afterwards of fendiim ; and was defined, A 

 gratuitous right to the properly of lands, made under the 

 conditions of fealty and military service, to be performed 

 by the granter to the receiver, the radical right of the 

 lands still remaining in the granter. Under lands in this 

 definition, are comprehended all rights or subjects so 

 connected with land, that they are deemed a part there- 

 of ; as houses, mills, fishings, jurisdictions, patronages, 

 &c. Though feus in their original nature were gratui- 

 tous they soon became the subiect of commerce; ser- 

 vices of a civil or religious kind were frequently sub- 

 stituted in place of military ; and now, of a long time, 

 services of every kind have been entirely dispensed 

 with in certain feudal tenures. He who makes the 

 grant is called the superior, and he who receives it the 

 vassal. The subject of the grant is commonly called 

 the feu, though that word is at other times in our law 

 used to signify one particular tenure. The interest re- 

 tained by the superior in the feu, is styled dumininm 

 directum, or the superiority; and the interest acquired 

 by the vassal dominivm tilile, or the property. The 

 word fee is promiscuously applied to both. 



4-. Allodial property is opposed to feus, by which is 

 understood, property enjoyed by die owner indepen- 

 dently of a superior. All moveable goods are allodial ; 

 but with us no lands are allodial except those of the 

 king's own property, his s\ijx>riorities, and manses and 

 gleljcs, the right of which latter is completed by the 

 presbytery's designation, without any feudal grant. 



5. A vassal, though he has only the dominium utile, 

 can sub-feu his property to a sub-vassal by a subaltern 

 right, and therebv raise a new dominium directum in 

 himself, subordinate to that which is in his superior, 

 and so in infinitum. The vassal who thus sub-feus, is 

 called the sub-vassal's immediate superior, and the vas- 

 sal's superior is the sub-vassal's mediate superior. 



6. Every heritable subject capable of commerce may 

 be granted in feu. From this general rule is excepted, 



1. The annexed property of the crown, which is not 

 alienable without a previous dissolution in parliament. 



2. Tail/icd lands, which are devised under condition 

 that they shall not lie aliened. 3. An estate in hereditate 



jacente cannot be effectually aliened by the heir appa- 

 rent (i. e. not entered) ; but such alienation becomes 

 effectual upon his entry, the supervening right accru- 

 ing in that case to the purchaser. 



7. The feudal right, or as it is culled investiture, is 

 constituted by charter and seisin. By the charter, we 

 understand that writing which contains the. grant of the 



feudal subjects to the vassal, whether it be executed in the 

 proper form of a charter or of a disposition. Charters by 

 subject-superiors are granted, either 1. A me tie superiore 

 meo, when they are to be holden not of the granter him- 

 self but of his superior. This sort is called a public hold- 

 ing, because vassals were in ancient times publicly re- 

 ceived in the superior's court, before the pure* curix or 

 co-vassals. Or, 2. De ie, where the lands are to be 

 holden of the granter. These were called sometimes base 

 rights, from lias, lower, and sometimes private, because 

 before the establishment of our records they were easily 

 concealed from third parties: the nature of all which will 

 be more fully explained in the following Title. An orijp- 



Lw 



of Scotland, 



Definition 

 ol feus. 



Fens now 



patrimonial. 



Allodial 

 property- 



Who ran 

 grunt !i m 

 rights? 



What ob- 

 jects can be 

 granted. 



Fcuilal 

 charter. 



Charter 

 a me. 



De me. 



