1000000030

·1.

· A

.W.

beeomes efFdluall'pon his entry, Ihe fupervening right

Iccruing in that cale to the purchafer; which is a rule

IpplieabJe tO the alienation of all fubjcas oot beloogiog

to the

v~oder

at the time of ,he fale.

8. The feudal rioht, or, as it is ealled, invemmre,

c~ofiilUted

by ch:rter and f.ifio. By the chareer, we

uodernand that wriling ",hich cootains the grant of lhe

feudal fubjea la Ihe valfal, whether it be executed io the

proper form of a charter, or of a difpofilion. Chaners

by fubjea·fuperiOTs are granted, either,

me de

foperio",

111<0;

wheo tl1ey are to be holdeo, not of the

graOler himfelf, but of his fuperior. This fon is called

a public holding. becaufe valfals ' were in aoeieot times

publiely r<eeived. io the fuperior', eourt before the

pam

curitt

or co·vall'ls. Or,2.

De lile,.

where thelaods are

10 he holden of'the granler. Thefe were calledfumctimes

bafe righls, from

hal, 100000er:

and Jomelimes private,

becaufe. before lhe ellabliO,ment of our records, lhey

were eafily coocealed from third panies; tbe nature of

all wbich will be more fully explained, Tit. 14, An

origioal charter is thal hy whieh lhe fee is firfi graoled :

A cbmer by progrefs is a n ne..ed difpofilíon of lhal

fee 10 lhe

heir.or

ajligoey of lhe ..

1f.1.

AIl

doubtful

~Iaufes

io chartm by .progrefs oughl to be conflrued

agreeably 10 lhe original grant; and all e1aufes in Ihe

original eharter tte nnderfiood

be implied in lhe

~har·

lers by progrefs, if lhere be no exprefs alleralion.

. 9' The firfi e1aufe in ao original eharler, whieh follows

immedimly afler lbe oame aod defignation of lhe graoter,

is lhe narrative or recital. whieh exprelfes the eaufes

induaive of lhe grant. If the granl be made for a va·

lu.ble confideration, it is faid te I,e onerous

if for lave

and favour, gratuilouS. lo the difpofitive e1aufe of a

charter, lhe fubj eas made.over are. pefcribed eilher by

fpeeial bouodaries or march·fioots, (which is called a

bouodjng charter), or by fuch olher

eharaa.rs

as may

fuflieieotly difiinguifh them. A chmer regularly carries

rigllt to no.fubjeas but what are eontaioed In this d.ufe,

though they Ihould be meotioned io fome other e1aufe of

Iheeharter.

10,

The daufe of

lenenda!

(fromits fi rfi words,

le·

nmda/ p"Jifl.! lerra!)

exprelf"s the panicular teoure

whi~h

the lands art to be, holdtn. The dauf. of

"d·

d(ndo

(fromthe words,

rdd:ndo ¡nde anlll/,'/Iilll)

(¡Ieci.

~es

the particular dUly or ferviee whieh the

valf~1

is lO

pay or pcrforoi to the fliperior.

J J.

The e1.tife of warrandiee is that hy which the

franter obliges himrelf that Ihe right conveyod O,all be

elfe!}uallo the receiver. Warraodice is .ither perfooal

or real. Perfonal warrandiee, whm' the graoter is ollly

bound perfonally, is either,

Simple, tlm he

/h,,1I

~,"ot

deed in. prejudiee of the righl; and this lort,

whieh is eonftned 10 fmure d,eds, is

im~lied

even in do·

oations. 2. Wmandice fron, {aa and deed, l/y whieh

Ihe granter warraots that the rigill nLÍlhor has been, nor

O,all be hurt by aoy faa of his. Or, 3

~bfolule

war·

randice

conlra

.mna mnrl"I,·/,

~'hcrchy

,he righr is w,,·

ranted ag,ion ,11 legal d&as in i,t, wllic!! OIay w ry it

off from Ihe reeeiver, either

whl'lIy

or in pal t. Whcre

a fale o{ I"nds proeeeds up"o 'n o""rou' eIUfe, thl'

gr.nt

er i6 liaGle °in abfo!ute

wa~rand;~e,

lhough no w.trran:

dice .be

expre/l'~d;

but in amgoatioos to debts Or deerel:S.

no 11Igher warrandiee lhao {rom f,a and deed is implied.

12.

ratuilous grants l y Ihe erown imply

war.

randice; aod though wmand:cc OlOuld be expreOi:d, the

e1aufe isioeffdtual, from aprefuOlplioo, thal';l has crcpt io·

by the negligence of the

Cro~·n'sofficers.

But where Ihe

Crowo m¡kes a grant, not

jure coron<r,

but for an ade.

quate price, the fovereign is in the fame cafe Wilh

hi~

fubjeas.

13. Abfolute wmaodice, in cafe of .viaion, afFords

an aaioo to lhe graotce, againfi the granter, .for makiol}

up to him all that hefhall have fulfued through thed,fefr

of the right; and not filllply for his indemolfieatioo, by

lhe graoter's repayment of the priee to him. BUl as

warrandiee is pen. I, aod coofequendy

jlrj{/i jurit,

il il

not eafily prefumed, nor is it incurred from m r} light

fervilUde Ihat may afFea the fubjeél, far leCs does il ex–

teod to hurdens which may alTea the {ubjea pollerior

thegran!, oor to l.hofe impofedby public natute,

~'he;her

be/orear

aft~r,

uolefs fpecially warraoted a&ainll.

14' Real warrandiee is eilher, l. Exprefs, whereby,

io {ecurityof the laods principally eonveyed, olher·!aods,

called warrandiee·lands, are alfo made over, to whicl!.

lhe reeeiver may have reeoufe in cafe the erincipallands

be e.iaed. Or,

Tacit, which is eonflituted hy the

exehaoge or excambion of one piece of grouod Wilh a–

oOlher ; for, if lhe

la~ds

exchaoged are earried off from

eilher of the parties, lhe I.w ilrelf, without any paaioo,.

gives lhat pany immedi4le recourfe upoo his

OIVO

firll.

laods, given io exehange for lhe lands eviaed.

15. The ehapter cooeludes widl a precept of feifin,

whieh is the command oflhe fu periorgraoler of Ihe right

to his bailie, for giviog fe,fin or polfellion to lhevalTal, or

his attoroey, by delivering to him the proper fymbols.

Any perfoo, whofe naOle

m~y

be infened io the blaok,.

!eft io the precept for that purpofe, can exeeute the pre–

cept as baili,; aod whoever

~as

the precepl of feifin in

his hands, is prefuOlcd tO have a power of a!toroer.

from the valfal {or reeeiviflg poRt llioo io his name.

16. Afeifio is the iofirument or am/l'atiooof anotary,

thal p'IO'effiIlOwas aaually giveo by the fuperior 'or his

bailie.

rhe valf.1or his a'toroer; which is eonfidered

as f: nmlfary ar,'¡emo;ty, as

001

to befuppliable, eilher

by a

proor

of natural po{[,Oioo, or eveoof the rpecial

fa~

that lhe valfal was duly entered to lhe polfeffion by

th~

fuperior's b.ille.

17" The fymbols, hy which the delivery of polfeffion

is exp"lf.d, are, fo< Iaods, earu, aod /looe; for rights

of aonualrem p.yal,le forth of hod, it is alfo earth and

/looe, wilh Ihe addi,ioo of a peooy mJney; for parfon–

age teinds, a

Ihe~f

of eorn; fur jurifJiélions, the book

of lhe toun ; for pmonages, a pfall1l book, aod the

keys of Ihe churcb; for fi/hings, neland coble; for milis:

cLip and happer,

&c,

The felfio O1ull be lakeo uponthe'

grollnd of'the bnds, excepl whcrc Ihere is a {pecial die.

pen/alion in Ihe ehaner from the Crown.

,8 Al! leifins mll/l be refli/lrcd IVirbi" fixly days af.

ter Iheir date, either in Ihe gcnml regi/ler of f,ilios at

EdinLurgh, or in the rtgifler of the pa"icular /hire ap'

pointedby ,beall '617; which, it mufi be obfefl'ed, is OOt,.

io every cafe, thefilire wilhin IIhieh lhelandslie. Bur·

g,,~e!