668 



LAW. 



Orginal 



Instrument 

 of seisin. 



l-iw n/i/charter is that by which the tec ts first granted; a char- 

 Scotland ie r y progress is a renewed disposition of that fee. The 

 ' constituent parts of a charter are, the narrative or reci- 

 tal, which expresses the causes inducing the grant ; the 

 By progress, dispositive clause, in which the subjects made over are 

 (ts conai- described by such characters as may sufficiently distin- 

 tuent parts, guish them, and here also the order of succession and 

 limitation of the fee is expressed ; the clause oflenendas, 

 declaring the particular tenure by which the lands are to 

 be holden; the clause of warrandice, by which thegrant- 

 er obliges himself that the right conveyed shall be 

 effectual to the receiver ; and the precept of seisin, 

 which is the command of the superior or granter of the 

 right, to his bailie, for giving seisin or possession to the 

 vassal or his attorney, by delivering to him the proper 

 symbols of that possession. 



8. A seisin is the instrument or attestation of a no- 

 tary, that possession was actually* given by the superior 

 or his bailie to the vassal or Ms attorney ; and it some- 

 times gets the name of infeftmcni, though that word in 

 its proper sense signifies the whole feudal right. For a 

 long time, the appending of the bailie's seal to the su- 

 perior's charter or precept, and sometimes his separate 

 declaration that he had given seisin, completed the vas- 

 sal's right, without the attestation of a notary. But af- 

 terwards a notorial instrument came to be considered as 

 a necessary solemnity, not suppliable either by a proof 

 of natural possession, or even of the special fact, that 

 the vassal was duly entered to the possession by the su- 

 perior's bailie. 



9. All seisins and other real rights mentioned in 1617, 

 c. 16, must be registered within sixty days after their 

 date, either in the general register of seisins at Edin- 

 burgh, or in the register of the particular shire appoint- 

 ed by the acts, which, it must be observed, is not in 

 every case the shire within which the lands lie. Unre- 

 gistered seisins are ineffectual against third parties, but 

 they are valid against the granters and their heirs. 



1 0. The" attestation of the keeper of the records on 

 the back of the seisin that it was registered, was deemed 

 a sufficient registi-ation l686,c. 19- But as this weakened 

 the security intended from the records to singular suc- 

 cessors, the actual booking of seisins and of other wri- 

 tings presented for registration, is now required, 1696, 

 c. 18. Seisins regularly recorded are preferable, not 

 according to their own dates but the dates of their re- 

 gist ration. 



11. Seisin necessarily supposes a superior by whom 

 it is given ; the right, therefore, which the sovereign, 

 who acknowledges no superior, has over the whole 

 lands of Scotland, is constituted jure corona without 

 seisin. In several parcels of land that lie contiguous to 

 one another, one seisin serves for all, unless the right of 

 the several parcels be either holden of different supe- 

 riors, or derived from different authors, or enjoyed by 

 different tenures under the same superior. 



12. A charter not perfected by seisin, is a right mere- 

 ly personal, which does not transfer the property ; and 

 a seisin of itself bears no faith without its warrant. It 

 is the seisin and charter joined together that constitutes 

 the feudal right, and secures the receiver against the 

 effect of all posterior seisins, even though the charters 

 on which they proceed should be prior to his ; and still 

 more against all qualities burdening his author's right, 

 contained in latent personal declarations or back-bonds, 

 which have not been rendered litigious before his seisin. 



13. No quality which is designed as a lien or real 



Registra- 

 tion of sei- 

 sins and 

 other real 

 rights ne- 

 cessary. 



What is 

 considered 

 a registra- 

 tion. 



Crown 

 ri<;ht con- 

 stituted 

 without re 

 gistration. 



Charter not 

 real till af- 

 ter seisin. 



Real bur- 

 dens must 



be inserted burden on a feudal right, can be effectual against sin- 

 in investi- gular successors, if it be not inserted in the investiture, 

 tui*. 



14. Feudal subjects are chiefly distinguished by their Lavr. 

 different manners of holding, which weje either ward, of Scotlam 

 feit, blanch, or burgage. Ward- holding, which is now ~~-"~ 

 abolished by 20 Geo. I. c. 50, was Slat -Vhich was hVuUnra, 

 granted for military service. Ward. 



15. Feu-holding is that whereby the vassal is obliged holding. 

 to pay to the superior a yearly rent in money or grain, ., 

 and sometimes also in services proper to a farm ; as j n l u " ' 

 ploughing, reaping, carriages for the superior's use,&c. 

 nomine feudi firmce. 



16. B/anc/t-hoUing (not unlike \hefetidum francum Blanch, 

 of the Lombards) is tliat whereby the vassal is to pay to holding, 

 the superior an elusory yearly duty ; as a penny money, 



a rose, a pair of gilt spurs, &c. merely in acknowledg- 

 ment of the superiority, nomine alttce firma: 



17- Burgage- holding is that by which boroughs roy- Bur^c. 

 al hold of the sovereign the lands which are contained holding, 

 in their charters of erection. 



18. Feudal subjects granted to churches, mona.-te- Mortifica. 

 ries, or other societies for religious or chnr'table uses, are tion. 

 said to be mortified, or granted ad manum morluam ; 

 either because all casualties must necessarily be lost to 

 the superior, where the vassal is a corporation which 

 never dies ; or because the property of these subjects 

 is granted to a dead hand, which cannot transfer it to 

 another. In lands mortified in times of Popery to the 

 church, whether granted to prelates for the behoof of 

 the church, or in purum eleemosynam, the only services 

 prestable by the vassal, were prayers and singing of 

 masses for the souls of the deceased, which approaches 

 more to blanch-holding than ward. The purposes of 

 such grants having been upon the Reformation decla- 

 red superstitious, the lands mortified were annexed to 

 the crown. But mortifications to universities, hospitals, 

 &c. were not affected by that annexation ; and lands 

 may at this day be mortified to any lawful purpose, ei- 

 ther by blanch or by feu-holding. 



1 9- The right of the superior continues unimpaired Rights of 

 notwithstanding the feudal grant, unless in so far as superior. 

 the dominium utile, or property is conveyed to his vas- 

 sal : His infeftment in the lands subsists, and his heir *' xetl 

 is entitled to be vested, not in the superiority only, but r '8 htf 

 in the lands themselves, of which his ancestor had 

 made over the property. Hence he can sue all real 

 actions concerning the lands, against every person 

 but the vassal, or those deriving right from him. The 

 superiority carries a right to the services and an- 

 nual duties contained in the reddendo of the vassal's 

 charter. The duty payable by the vassal is a debitum 

 fundi, i, e. it is recoverable, not only by a personal ac- 

 tion against himself, but by a real action against the 

 lands. The services with which he is charged, if they 

 are annual, as ploughing, cutting of corns or hay, &c. 

 must be exacted within the year. The services of per- 

 sonal attendance, by hosting, hunting, watching, and 

 warding, due by vassals, are abolished, 1. Geo. II. 

 st. 2. c. 54; and in lieu of them, the superior is- enti- 

 tled to a certain annual payment, to be fixed by the 

 Court of Session, if the parties themselves cannot set- 

 tle it. 



20. Besides the constant fixed rights of superiority, Casual 

 there are others which, because they depend upon un- r <8 nts - 

 certain events, are called casualties. The casualties Casualties 

 proper to a ward-holding, while that tenure subsisted, of ward- 

 were ward, recognition, and marriage. By the late J 1 "^'^ 

 statutes, 20 and 25. Geo. II. for abolishing ward-hold- 

 ings, the tenure of lands holden ward of the crown, 

 and of the prince, is turned into blanch, for payment 

 of one penny Scots yearly, si petalur tantum ; and the 



