LAW. 



681 



then b no 

 k*ir, * 



being in the common case presumed, from his not giv- 

 ing up in inventory the full subjects intermeddled with. 

 19 intromission is presumed, by Act S. 23, Ffb. 

 169t, in the special case where the repositories of a 

 dying person are not sealed up as soon as he becomes 

 incapable of sense, by his nearest relations ; or, if he 

 dies in a house not his own, they must be sealed by the 

 master of such house, and the keys delivered to the 

 judge ordinary, to be kept by him for the benefit of all 

 having interest But vitious intromission is excluded 

 by any probable title, or by any circumstance that takes 

 off the presumption of fraud. 



10. Where a vassal dies without leaving any heir 

 who can prove the remotest propinquity to him, it is 

 Dot the superior as the old law stood, but the king, who 

 succeeds as last heir, both in the heritable and move- 

 able estate of the deceased, in consequence of the rule, 

 quod muUiut etl, cedit domino rtgi. 



^^^ ^^ 1 1 . A bastard can have no legal heirs, except those 

 fcThcriublc of his own body ; since there is no succession but by 

 the father, and a bastard has no certain father. The 

 king therefore succeeds to him, failing his lawful issue, 

 f. mm last heir. Though the bastard as absolute proprie- 

 tor of bis own estate, can dispose of his heritage in 

 ** liege poutlie, (that is, exempt from the disease of which 

 * he afterwards dies, ) and of his moveables by any deed 

 inter tiro* ; yet he u disabled, ex defectu natalium, from 

 bequeathing by testament without letters of legitima- 

 tion from the sovereign. If the bastard has lawful 

 children he may test without such letters, and name tu- 

 tors and curators to his issue ; for in such case, the king 

 can have no interest to object, the bastard's children 

 being bis lawful heirs. 



12. A bastard is not only excluded. 1. From his fa- 

 **" ther's succession, because law knows no father who is 

 not marked out by marriage ; and, 2. From all heritable 

 succession, whether by the father or mother, because 

 he cannot be pronounced lawful heir by the inquest in 

 tams of the brief; but, also, 3. From the moveable 

 uccsissinn of his mother; for though the mother be 

 known, the bastard is not her lawful child, and legiti- 

 macy is implied in all succession deferred by law. A 

 bastard, though he cannot succeed jure taaguinii, may 

 succeed by destination, where he is specially called to 

 the succession by an entail or testament Aliens are, 

 from their allegiance to a foreign prince, incapable of 

 succeeding in feudal rights, though not in moveables, 

 uk.. naturalization. Papists may get free from 



who n--. > 



An BjgBJ, 



hst. 



T>-. k - 



their disabilities on taking the oath of abjuration, and 

 mas: rag the declaration prescribed by S3. Geo. III. 

 C44. 



BOOK HI. 



Or ACTIONS. 



1. Hitherto of the rights arising from the relation of 

 perto**, and of those arising from tltingt, the two first 

 objects of law. Action* are its third object, whereby 

 persons make their rights effectual. An action may be 

 oVfaf<, A demand regularly made and instiled in brjore 

 Iktmdgt competent, for the retaining or recovering of a 



'<'*'' 



8. The supreme power, which has the right of enact- 

 ing laws, falls naturally to have the right of erecting 

 , courts and appointing judges, who may apply these 

 laws to particular cases. But in Scotland, this right 

 has been from our earliest times intrusted with the 

 crown, as having the executive power of the state. In 



VOL. xii. PART it. 



our supreme courts of session and exchequer, not only Law 

 process but execution of diligence runs in the name ( ofScotlanA, 

 the sovereign, notwithstanding which these courts have V "Y"' 

 a proper jurisdiction, seeing all their necessary writs, 

 both of process and execution, issue under their own 

 direction. 



3. Jurisdiction is a power conferred upon a judge or Jurisdic- 

 magistrate, to take cognizance of and decide causes ac- *"">> wnat< 

 cording to law, and to carry his sentences into execu- 



tion. That tract of ground or district within which a 

 judge has the right of jurisdiction, is called his territo- 

 ry ; and every act of jurisdiction exercised by a judge 

 beyond his territory, either by pronouncing sentence, 

 or carrying it into execution, is null. 



4. All judges must at their admission swear, 1. The Oaths to be 

 oath of allegiance, and subscribe the assurance, 1693,.f a ^ en ^ 



c. 6 2. The oath of abjuration was first imposed 6 JU ges ' 

 An. c. 14, and has been since continued by several 

 British statute?. Lastly, The oath de Jidcli adminis- 

 tratione. 



5. By the treaty of union 1707, c. 7, art 3, the par- British par. 

 liaments of Scotland and England are united into one liament, 

 parliament of Great Britain. From this period, the Bri- court of last 

 tis/i House of Peers, as coming in place of the Scots resort> 

 parliament, is become our court of the last resort, to 



which appeals lie from the supreme courts of Scot- 

 land. 



6. The Court of Session, or college of justice, the Court of 

 supreme civil tribunal of Scotland, was originally form- Session su- 

 ed in the reign of James V. but has since undergone P' 

 several important changes. It at present consists of sio 

 fifteen judges, who are vested with an universal civil 

 jurisdiction, and who are distinguished into three clas- 



ses; one principally occupied in the preparation of Distributed 

 causes, called the Outer-House judges ; and two others into Outet 

 for the final determination of them, called the First and H 

 Second Divisions. Though the jurisdiction of the ses- and first and 

 sion be properly limited to civil causes, the judges have second di- 

 always sustained themselves as competent to the crime vl! 

 of falsehood, either from its necessary connection with Its criminal 

 civil right, or perhaps because the summary proceed- jurisdiction 

 ings of the court of justiciary were not well adapted to ^" 

 the tedious proofs frequently brought in improbation, 

 when pursued in the indirect manner. This court, ' ts controul 

 besides its original jurisdiction, has a power of review ^" 1 u n r , s n " 

 over inferior courts, by the processes of advocation, sus- by proceS8 

 pension, and reduction. _ of review. 



7. Five lords of session, as commissioners of justici- Justiciary 

 ary, the justice-general, and justice-clerk, form the jus- coutti su . 

 liciary court, or supreme criminal court of Scotland, preme cri- 

 The justice-general, if present, is president of the court, minal court. 

 and iu his absence the justice-clerk. By the late jurisdic- 



tion act, 20 Geo. II. circuit courts are to be held twice circuit 

 in the year in place of once as formerly, with a power couttSt 

 to his majesty to add to, or alter the places or districts 

 at which these courts are to be held, and to appoint their 

 times of meeting. One judge may by this statute, pro- 

 ceed to business in the absence of his colleague. 



8. The Scots court of exchequer, as the king's chain- Court of ex- 



. 



berlain court, judged in all questions of the revenue, chequer. 

 By 6 An. c. 2o, (passed in pursuance of 1707, c. 7, art. 

 19,) that court is abolished, and a new court erected, 

 consisting of the lord high treasurer of Great Britain, 

 and a chief baron, with four other barons of exchequer. 

 This court has a privative jurisdiction conferred upon 

 it as to the duties of customs, excise, or other revenues 

 appertaining to the king or prince of Scotland, and as 

 to all honours and estates that may accrue to the crown ; 

 iu which matters they are to judge by the forms of pro 



