672 



L A W. 



fow wadset is that whereby it is agreed that the use of the 

 ^Scotland. j an(1 sha jj K0 for the "use of the money; so that the 

 ""Y"^ wadsetter takes his hazard of the rents, and enjoys them 

 without accounting in satisfaction or in solutum of his in- 

 terest. Though, therefore, the rent of the lands should 

 be less than the yearly interest of the sum lent, the 

 lands are redeemable upon payment of the bare prin- 

 cipal sum, without any claim for bygone interests ; if 

 it amounts to more, the wadsetter is not obliged to im- 

 pute the surplus (in soriem) towards the extinction of 

 the principal sum. Where the wadsetter thus subjects 

 himself to all the chances by which the fruits may be 

 lost, it is a proper wadset, though the reverser should 

 be obliged to pay the public burdens. 



improper, 3. In an improper wadset the reverser, if the rent 

 should fall short of the interest, is taken bound to make 

 up the deficiency ; if it amounts to more, the wadsetter 

 is obliged to impute the excrescence towards extinction 

 of the capital. And as soon as the whole sums, princi- 

 pal and interest, are extinguished by the wadsetter's 

 possession, he may be compelled to renounce or divest 

 himself in favour of the reverser. Where the wadset- 

 ter, in place of possessing by himself, grants a back- 

 tack of the lands to the reverser for payment of the in- 

 terest of the wadset sums, as the tack duty, the wadset 

 is thereby rendered improper ; for the wadsetter has in 

 that event no chance of getting more than his interest ; 

 and consequently the redemption is burdened, not only 

 with the payment of the principal sum, but of the in- 

 terest or tack duties remaining unpaid. But this bur- 

 den is ineffectual against singular successors, if it be 

 not expressed in the right of reversion, or if the back- 

 tack be not recorded in the proper register. 



Right of 4. Infeftments of annualrent are also redeemable 

 annualrent. rights. A right of annualrent does not carry the pro- 

 perty of the lands, but it creates a real nexus or burden 

 upon the property, for payment of the interest or an- 

 nualrent contained in the right ; and consequently the 

 bygone interests due upon it are debita fundi. 

 Right of 5. Infeftments in security are another kind of redeem- 

 security. a b] e right, (now frequently used in place of rights of 

 annualrent,) by which the receivers are infeft in the 

 lands themselves, (and not simply in an annualrent forth 

 of them,) for security of the principal sums, interest, and 

 penalty contained in the rights. These rights when 

 they are granted, not to the creditors for payment of 

 their debts, but to cautioners for relief of their engage- 

 ments, are caHed infeftments of relief. If an infef't- 

 ment in security be granted to a creditor, he may there- 

 upon enter into the immediate possession of the lands 

 or annualrent for his payment ; whereas rights of re- 

 lief are conditional, and have no operation till the cau- 

 tioner either pays the debt, or is distressed for it. 



6'. All rights of annualrent, rights in security, and 

 generally whatever constitutes a real burden on the fee, 

 may be the ground of an adjudication, which is prefer- 

 able to all adjudications or other diligences intervening 

 between the date of the right, and of the adjudication 

 deduced on it, not only for the principal sum contained 

 in the right, but also for the whole past interest contained 

 in the adjudication. This preference arises from the 

 nature of real debts, or debita fundi, and is expressly re- 

 served by the at 1661, c. 62, establishing the part 

 passu preference of adjudications ; but in order to ob- 

 tain it for the interest of the interest accumulated in the 

 adjudication, such adjudication must proceed on a pro- 

 cess of poinding the ground. 

 .Servitude, 7. Servitude is a burden affecting lands or other heri- 



y reference 



of debita 

 fundi. 



What. 



table subjects, whereby the proprietor is either restrain- 



ed from the full use of what is his own, or is obliged Lwr 

 to suffer another to do something upon it. Servitudes of Scotland, 

 fire either natural, legal, or conventional. Nature itself X ~"""Y"'" >/ 

 may be said to constitute a servitude upon inferior tene- natu I ; 

 ments, whereby they must receive the water that falls 

 from those that stand on higher ground. Legal servi- [ e _ al . 

 tudes are established by statute or custom from consi- 

 derations of public policy : among which may be num- 

 bered, the public restraints laid upon the proprietors of 

 tenements within the city of Edinburgh, by 1621, c. 26, 

 and 1 698, c. 8. There is as great variety of conven- conven- 

 tional servitudes, as there are ways by which the exer- tionaU 

 cise of property may be restrained by paction in favour 

 of another. They are constituted either Ay grant, where 

 the will of the party burdened is expressed in writing ; 

 or by prescription, where his consent is presumed from 

 his acquiescence in the burden for forty years. 



8. Servitudes are either predial (sometimes called Servitudes 

 real) or personal. Predial servitudes are burdens im- either pre- 

 jjosed upon one tenement in favour of another tene- dial or B er - 

 ment, and are divided into rural servitudes, or of lands; sonal - 

 and urban servitudes, or of houses. The rural servi- P'" e dial 

 tudes of the Romans were iter, actus, via, aquasductus, servitudes s 

 aqiue haiistus, and jus pasccndi pecoris. Similar servi- p!, s u roa *'* 

 tudes are recognised in the law of Scotland ; as of a foot & c> 

 road, horse road, cart road, dams and aqueducts, wa- ' 

 tering of cattle, and pasturage. The chief servitudes of 

 houses among the Romans were those of support, viz. 

 tigni immittcndi, and oneris ferendi. The first was the 

 right of fixing in our neighbour's wall a joist or beam 

 from our house ; the second was that of resting the 

 weight of one's house upon his neighbour's wall. To 

 these may be added the servitudes altius non lollendi, et 

 non qfficiendi luminibus vcl prospeclui, restraining pro- 

 prietors from raising their houses beyond a certain 

 height, or from making any building whatsoever that 

 may hurt the light or prospect of the dominant tene- 

 ment, which several servitudes are also known in the 

 law of Scotland. 



9. But besides these, there are two predial servitudes Servitude 

 usual in Scotland to which the Romans were strangers, of feal and 

 viz. that of fuel or feal, and divot, and ofthirlage. The divot ' 

 first is a right, by which the owner of the dominant te- 

 nement may turn up peats, turfs, feals, or divots, from 



the ground of the servient, and carry them off either for 

 fuel or thatch, or the other uses of his own tenement. 

 Thirlage is that servitude by which lands are astricted of thir- 

 or thirled to a particular mill, and the possessors bound *> e< 

 to grind their grain there, for payment of certain mul- 

 tures and sequels, as the agreed price of grinding. 



10. Servitudes are extinguished, 1. Confusione, when Extinction 

 the same person comes to be the proprietor of the do- of servi - 

 minant and servient tenements ; for res sua nemini ser- tu 



vit, and the use the proprietor thereafter makes of the 

 servient tenement is not jure servitutis^, but is an act of 

 property. 2. By the perishing either of die dominant 

 or servient tenement. 3. Servitudes are lost non utendo, 

 by the dominant tenement's neglecting to use the right 

 for forty years, which is considered as a dereliction of 

 it, though he who has the servient tenement should have 

 made no interruption by doing acts contrary to the ser- 

 vitude. 



Personal servitudes are those by which the property Pcrsonaf 

 of a subject is burdened in favour not of a tenement but servitudes. 

 of a person. The only personal servitude known in our Lifererit; 

 law, 'is usufruct or liferent, which is a right to use and 

 enjoy a thing during life, the substance of it being pre- 

 served. A liferent cannot therefore be constituted upon 

 things which perish in the use ; and though it may 



