U. 



.. >.,,.:> 



LAW. 



69 



tenure of those holden of subjects, into feu for pay- 

 ment of such yearly feu-duty in money, victual, or cat- 

 tle, in place of all services, as shall be fixed by the 

 Court of Session. 



2 1 . The only casualty, or rather forfeiture, proper to 

 a*n-!y- Jeu-hoUinft, is'the loss or tinsel of the feu-right, by the 



feu - neglect of payment of the feu-dutv for two full years. 



22. The casualties common to all holdings, are non. 

 entry, relief, liferent, actual, declamation, and purpres- 

 ture. \on-eninf is that casualty which arises to the 

 superior out of the rents of the feudal subject, through 

 the heir'* neglecting to renew the investiture after his 

 ancestor'* death. This casualty was introduced thut 

 the superior, while he was without a vassal, might be 

 enabled to provide himself with a proper person to 

 serve him ; the heir, therefore, as soon as by entering 

 he becomes capable of serving his superior, returns, by 

 our customs, to the full enjoyment of his feu. 



The heir, from the death of the ancestor till he 

 be cited by the wperior in a process of general declara- 

 tor of DOB-erUry, loses only the reteured duties of his 

 land*; and he forfeits these, though his delay should 

 not aigM any contempt of the superior, because the 

 casuaky is considered to fall as a condition implied in 

 the feudal right, and not as a penalty of transgression. 

 But where the delay proceeds not from the heir, but 

 frosn the superior, nothing is forfeited, not even the 

 retoUMd duties. 



The heir, after he is cited by the superior in the 



.ted to the full 

 excusable 

 before citation 



our dune* are Jttita f**di. which the superior, as creditor, may 

 * /* recover by a poinding of the ground ; but the right 

 which he ha* to the full duties that fall after citation, 

 don not accrue to him as creditor, but as interim do- 

 mimia of the rents ; in which character be can make 

 the rents effectual by a petitory action against tenants 

 and intromitten, improperly called a special declarator. 

 25. R'lirf it that casualty which entitles the supe- 

 rior to an acknowledgement or consideration from the 

 heir fur receiving him as vassal. It is called relief, be- 

 cause by the entry of the heir his fee is relieved out of 

 the hands of the superior. The superior can recover 

 this caxuahy, either by a poinding of the ground, as a 

 . sMt/sm lumdi, or by a personal action against the heir, 

 if the lands hold of the crown, is subjected by his 

 taking a precept of seisin from the chancery, though 

 he should not inJeft himself u|>on it. In blanch and 



jfel afttt. 



action of general declarator, is subjected tc 



rent* till hi* eater, because his neglect is lew < 



MEW after citation. The retourcd duties due bfor 





a year' 

 sides t 



al * 



of 



ftsj holdings when this casualty is expressly stipulated. 

 r's blanch or feu-duty is due in name of relief, be. 

 the current year's duty, payable in name of blanch 

 or feu-lar 



86. Etchrmt (from etcketir, to happen or fall,) an- 

 ciently signiiad any casualty or forfeiture by which a 

 com the proprietor, or accrued to another; 

 has been since restricted to that special t 

 lure which falls through a person's being denounced re- 

 bel. It is either single -or liferent. Single escheat, 

 though it don not accrue to the superior, must be ex- 

 plained in this place, because of its coincidence with 

 mt. 



97- After a debt is constituted, either by a formal 

 decree, or by registration of the ground of debt, (which, 

 to the special effect of execution, is in law accounted a 

 decree) the creditor may obtain letters of horning, is- 

 uing.rrn*ij the signet, commanding messengers to charge 

 the debtor to pay or pcrfoini hit obligation within a 



day certain. Where horning proceeds mi a formal de- Law 

 cree of the Session, the time indulged by law to the of Scotland. 

 debtor is fifteen days ; if upon a decree of the commis- ~ w jj at ~ 

 sion of teinds, it is ten : Where it proceeds on a regis- number of 

 tered obligation, which specifies the number of days, days they 

 that number must be the rule ; and if no precise num- pioceed; 

 ber be mentioned, the charge must be given on fifteen 

 d.iys which is the term of law, unless where special 

 statute interposes ; as in bills, upon which the debtor 

 may be charged on six days. 



28. The messenger must execute these letters, (and t ! leir execu- 

 indeed all summonses) against the debtor, either per- tlon 

 sonally or at his dwelling-house. If payment be not 

 made within the days mentioned in the horning, the 

 messenger, after proclaiming three oyesses at the mar- form of de- 

 ket cross of the head borough of the debtor's domicil, nunciation. 

 and reading the letters there, blows three blasts with a 

 horn, by which the debtor is understood to be pro- 

 claimed rebel to the king for contempt of his authori- 

 ty ; after which he must affix a copy of the execution 

 to the market-cross. This is called the publication of 

 the diligence, or a denunciation at the horn. Persons its cone- 

 deiuumccd rebels have not a persona standi in judicio ; qaeaces. 

 they can neither "sue nor defend in any action. Per- 

 sons cited to the Court of Justiciary may be also de- 

 nounced rebels, either for appearing there with too 

 great a number of attendants, or, if by failing to ap- 

 pear, they are declared fugitives from the law. By Escheat 

 the act abolishing ward-holdings, the casualties both of upon debt! 

 tingle and liferent escheat are discharged when pro- n * d " - 

 renting u()oii denunciation for civil debts; but they 

 still continue when they arise from criminal causes. 

 All mmealiles belonging to the rebel at the time of his 

 rebellion (whether proceeding upon denunciation or ?'.P crt 5 r 

 sentence in a criminal trial), and all that shall be after- J 

 wards acquired by him until relaxation, fall under sin- 

 gle escheat. 



5iy. The rebel, if he either pays the debt charged Letters of 

 for, or suspends the diligence, may procure letters of 

 relaxation from the horn, which, if published in the 

 same place, and registered fifteen days thereafter, in 

 the same register with the denunciation, have the ef- 

 fect to restore him to his former state. 



30. The rebel, if he continues unrelaxed for year 



and day after rebellion, is construed to be civilly dead : es<= heat - 

 And, therefore, where he holds any feudal right, his 

 superiors, as being without a vassal, are entitled each 

 of them to the rents of such of the lands belonging to 

 the rebel as hold of himself during all the days of the 

 rebel's natural life, by the casualty of liferent escheat ; 

 except where the denunciation proceeds upon treason or 

 proper rebellion, 1535, c. 32, in which last case the 

 liferent falls to the king. 



31. Disclamation is that casualty whereby a vassal Disclama. 

 forfeits his whole feu to his superior, if he disowns or Ul 

 disclaims him without ground, as to any part of it. 

 Purpraltire draws likewise a forfeiture of the whole Pn rp rcs. 

 feu after it, and is incurred by the vassal's encroaching ture, 

 upon any part of his superior's property, or attempting 



by building, enclosing, or otherwise, to make it his 



own. In both these feudal delinquencies, the least Co- Bight of 



leur of excuse saves the vassal. vassal. 



32. Under the dominium utile which the vassal ac- Dominium 

 quires by the feudal right, is comprehended the pro- *** 

 perty of whatever is considered as part of the lands, re ^ rv ^j by 

 whether houses, woods, enclosures, &c. above ground; aomt tx . 

 or coal, limestone, minerals, c. under ground. pt where 



33. There are certain rights naturally consequent expressly 

 on property, which are deemed to be reserved by the conveyed. 



