SCOTS
CMSW

Hand-Book of the Law of Scotland

Author(s): Lorimer, Mr James

Text

A HAND-BOOK
OF THE
LAW OF SCOTLAND.
CONTENTS.
Page
Preface. . . . . . xiii

INTRODUCTION.—OF THE LAW OF SCOTLAND. . .1

BOOK I.
OF THE FAMILY RELATIONS, . . .3
CHAPTER I.
Of Husband and Wife,. . . .3
I. Constitution of Marriage, . .3
II. Regular Marriage, .5
III. Irregular and Clandestine Marriage, . . . 7
IV. Impediments to Marriage, . . . 9
V. Effects of Marriage on the Personal Status and Property
of the Spouses, . . . . 10
VI. How the Husband ceases to be liable for the Wife's Debts, . . 17
VII. Community of Goods, . . . . 20
VIII. How the Husband's power is excluded, . . . .2
IX. Separation — Judicial and Voluntary, . . . 25
A HAND-BOOK
OF THE
LAW OF SCOTLAND,
ADAPTED TO THE USE OF THE GENERAL PUBLIC,
AND OF STUDENTS AND STRANGERS.
BY
JAMES LORIMER, ADVOCATE,
AUTHOR OF "POLITICAL PROGRESS NOT NECESSARILY DEMOCRATIC," ETC.
EDINBURGH:
T. AND T. CLARK, 38, GEORGE STREET.
GLASGOW: SMITH & SON. LONDON: STEVENS & NORTON;
AND SIMPKIN, MARSHALL & CO.
MDCCCLIX.
MURRAY AND GIBB, PRINTERS, EDINBURGH.
Page
X. Donations between Husband and Wife, . . 28
XI. Dissolution of Marriage, . . . . 29
XII. Effects of Divorce, . . . .40
XIII. Declarator of Nullity of Marriage, . . . 42
XIV. Consistorial Actions, . . . . 42
XV. Marriage Contracts, . . . . 42

CHAPTER II.
Of Parent and Child, . . . . 46
I. Legitimacy, . . . . 46
II. The Paternal Power, . . . . 49
III. Duty of the Father to aliment the Child, . . 50

CHAPTER III.
Of Guardianship, . . . . . 55
I. Tutory . . . . . 56
II. Curatory, . . . . . 66
III. Pro-Tutors and Pro-Curators, . . . 71
IV. Factors loco tutoris, and Curators bonis, . . 72
V. Cautioners for Guardians, . . . 76
VI. Guardianship of Insane and Facile Persons, . . 76
VII. Curators bonis to the Insane appointed by the Court of
Session, . . . . .79
VIII. Interdiction, . . . . . 80
CHAPTER IV.
Of Master and Servant, . . . . 82
I. Verbal Contract, . . . . 83
II. Written Contract, . . . . 83
III. Implied Contract, . . . . 84
IV. Duration of the Contract, . . . . 85
V. Exceptions to the obligation on the Servant to enter and
continue in the Service, or on the Master to retain him, 88
Page
VI. Obligations of the Master, . . . 100
VII. Termination of the Contract, . . . 110
VIII. Statute Law relative to the Contract of Service, . 112
CHAPTER V.
Of Master and Apprentice, . 120
I. Origin and Nature of the Contract, . . 12
II. Obligations of Master and Apprentice, . . 123
III. Dissolution of the Contract, . . . 124
CHAPTER VI.
Of Heritable and Moveable Succession, . . . 126
I. Distinction between Heritable and Moveable Property, . 126
1. Natural Character, . . . . 12
2. Accessory Character, . . . . 127
II. Succession in general, . . . 129
III. Descent and Consanguinity as applicable both to Heritable
and Moveable Succession, . . . 131
IV. Heritable Succession, . . . 132
1. Intestate Heritable Succession, . . . 132
2. Heritable Succession by Deed, . . . 136
3. Entails, . . . . .139
4. Conditional Settlements, . . . .152
5. Law of Deathbed, . . . 152
6. Entry of the Heir, . . . . 154
V. Succession in Moveables, . . . . 159
1. Intestate Succession, . . . 159
2. Testate Succession in Moveables, . . 161
CHAPTER VII.
Of Trusts and Trustees, . . . . 171
BOOK II.
Page
OF THE RELATIONS BETWEEN INDEPENDENT MEMBERS OF THE COMMUNITY,
. . . . . . 175

CHAPTER I.
Of the Constitution of Contracts in General, . . . 176

CHAPTER II.
Of the Contract of Sale, . . . . 180
I. Sale of Moveables, . . . . 181
1. Delivery, . . . . . 181
2. Implied Conditions of Sale, . . . 185
3. Express Conditions of Sale, . . . 188
4. Sale and Return, . . . . 189
5. Special Warranties, . . . . 189
6. Payment, . . . . 190
7. Stoppage in transitu, and retention of Goods by the
Seller, . . . . 190
II. Sale of Ships, . . . . 193
III. Sale of Heritage, . . . 195
1. Constitution and Transmission of Heritable Rights, . . . . . 196
2. Constitution of Feudal Rights, . . . . 196
3. Transmission of Heritable Rights, . . . . 198
IV. Sale by Auction, . . . . 205

CHAPTER III.
Of the Rights and Burdens attaching to Heritable Property, . 207
I. Public Burdens, . . . . 207
II. Servitudes, . . . . 212
Page
III. Stipend, . . . . . 215
The Church, . . . . . 216
The Manse, . . . . . 216
The Glebe, . . . . . 216
Schoolmaster, . . . . . 217
IV. Pigeon-Houses, . . . . . 217
Game, . . . . . 218

CHAPTER IV.
Of Prescription, . . . . 219
Forty Years' Prescription, . . . 219
The Lesser Prescriptions, . . . 221
Vicennial Prescription, . . . . 221
Decennial Prescription, . . . . 222
Septennial Prescription, . . . . . 222
Sexennial Prescription, . . . . . 223
Quinquennial Prescription, . . . . . 224
Triennial Prescription, . . . . . 224

CHAPTER V.
Of the Contract of Letting and Hiring, . . . 226
Of the Agricultural Lease, . . . . 227
Conditions of the Lease, . . . . 233
Renting of Houses, Shops, and other Subjects, . . . . . 238
Letting and Hiring of Ships, . . . . . 241
Shipmasters, Innkeepers, and Stablers, . . . . . 243
CHAPTER VI.
Of Pledge and Lien, . . . . .245
CHAPTER VII.

Of Bankruptcy and Insolvency, . . . . 250

CHAPTER VIII.
Page
Of Bills and Promissory Notes, . . . .265
CHAPTER IX.
Of Partnership, . . . . . 279
Partnership Proper, . . . . 279
Joint Stock Companies, . . . .288
CHAPTER X.
Of Cautionary Obligations, . . . . 299
CHAPTER XI.
Of Insurance, . . . . . 308
Marine Insurance, . . . . 308
Fire Insurance, . . . .313
Life Insurance, . . . . 316
CHAPTER XII.
Of Copyright, . . . . 318
CHAPTER XIII.
Of Patents, . . . . 325
CHAPTER XIV.
Of Securities for Debt, . . . 331
CHAPTER XV.
Of the Poor, . . . 335

BOOK III.
Page
OF THE MACHINERY OF THE LAW, . . . . 349

CHAPTER I.
Of the Supreme Courts and Judges of Scotland, . . 349
The Court of Session, . . . . 349
Departments of the Court of Session, .. 354
I. The Jury Court, . . . . 354
II. Court of Exchequer, . . . . 357
III. Teind Court, . . . . 360
IV. Court of Admiralty, . . . .361
V. Commissary Court, . . . . 362
House of Lords, . . . . . 363
Court of Justiciary, . . . . 364
CHAPTER II.
Of the Inferior Courts of Scotland, . . . 368
I. The Sheriff Court, . . . . 368
II. Sheriff's Small Debt Court, . . . 370
III. Sheriff's Police Court, . . . . 372
IV. Burgh Courts, . . . . . 373
V. Dean of Guild's Court, . . . . 374
VI. Justice of Peace Courts, . . . . 374
VII. Justices' Small Debt Courts, . . . . 378
VIII. Court of the Lord Lyon, . . . . 379
CHAPTER III.
Of the Ecclesiastical Courts, . . . . 380
I. Kirk Session, . . . . 380
II. Presbytery, . . . . . 381
III. Synod, . . . . . 382
IV. General Assembly, . . . . 383
CHAPTER IV.
Page
Of the Practitioners of the Law, . . . 386
1. Advocates, . . . . . 386
2. Writers or Clerks to the Signet, . . 387
3. Solicitors before the Supreme Courts, . . . . 389
4. Solicitors-at-Law, . . . . 389
5. Provincial Writers, . . . . 389
CHAPTER V.
Practical Suggestions with Reference to Judicial Proceedings, . 390
Civil Actions, . . . . . 391
Criminal Actions, . . . . 393
INDEX, . . . . . . 395
ERRATA.
Page 218, for "see ante, p. 230," read "see infra, p. 231."
Page 228, 1292, for "will cover leases," read "will not cover leases."
Page 372, for "civil," read "civic."
PREFACE.
WHEN a popular book on a professional subject is presented
to the public by a professional man, it is usual for him to
preface it with an apology for its existence; and were his
object either to diminish the scientific exactitude of professional
study, or to open the practice of a profession to those
who have received no special training, there would be reason
for an apology, if indeed any apology could avail. But the
case, I trust, is very different where all that has been attempted,
as regards practice, has been to furnish the means
of encountering, with confidence and serenity, those occurrances
in which the non-professional person must act without
professional aid; and as regards study, to afford a general
view of the subject, and a guide to more recondite sources
of information. These are the objects which I have endeavoured
to keep exclusively in view in the preparation of
this work; and I therefore believe, with some confidence,
that whatever may be its other defects, it will not be found
to have overstepped the legitimate province of the class of
works to which it belongs.
In a book intended for practical application in emergencies,
the first requisite is, that the rules enunciated shall be safe;
and this I have endeavoured to insure by drawing only from
acknowledged sources. To have enumerated my authorities
in every instance, would have been needlessly to encumber
the pages of a popular treatise. Who they are, and where
their dicta are to be found, my professional brethren will discover
without difficulty, and the non-professional reader will
not care to know. It may be proper, however, to state, that
wherever I have adopted the opinion of an individual,
however eminent, I have mentioned him by name; and
where I am silent as to authority, the reader may assume,
either that the doctrine as stated has been formally affirmed
by a decision, or that it is recognised as trite law by textwriters
of unquestionable reputation. The second requisite
in such a work is, that the doctrines shall be stated with
such precision and brevity as to exclude the possibility of
misapprehension. Of the success with which the requirement
of precision has been satisfied I can express no opinion;
but, as regards brevity, I may mention, that in an undertaking
of which the sole object was utility, and in which originality
would have been a fault, I have endeavoured to earn such
credit as it might yield by condensing, on almost every occasion,
even where I have not otherwise altered, the expressions
of former writers.
In addition to the two classes of persons whose requirements
I have had primarily in view, — viz., the general
non-professional public on the one hand, and students on
the other, — there is a third to whom I hope this little
work may not prove unacceptable, — I mean strangers and
foreigners who visit Scotland, and Scotchmen whom long
or early absence from the country may have prevented
from acquiring the knowledge of our legal arrangements
usually possessed by intelligent persons. With a view to
their service I have been careful to point out, in so far as
the nature of the work permitted, in what respects the law
of Scotland differs from that of England, and resembles the
systems of Continental Europe, from which, up to the period
of the Union, and indeed for half a century later, it was
mainly derived.
Though exclusively popular in character, it is hoped that
in one respect the work may not be without utility even to
lawyers, the very extensive changes in the Law of Scotland
of late years having rendered a Treatise, embracing the
whole subject and bringing down the Law to the latest date,
a desideratum in professional literature.
The only novelty in form which the book presents, so far
as I am aware, consists in the division which I have adopted;
which, though suggested by, does not correspond to, that of
the Institutes of Justinian, and is wholly different from that
of our own text-writers. That the distribution of our whole
legal rights and obligations into those which, arising from
the family tie, exist between parents and children of the same
house, and into those which, springing from the human or
citizen relation, subsist between those who are merely
brother men, possesses the charm of simplicity at least, will
not be contested. To what extent it is inferior to more
complicated arrangements, either in philosophical accuracy
or practical usefulness, it is for others to determine.
Before concluding, I must avail myself of this opportunity
to express my very sincere thanks to those friends who have
lent me their encouragement and their aid. To Mr Fraser,
Advocate, I am indebted not only for originally suggesting
the undertaking, but for much valuable advice and assistance
during its prosecution; and Mr Sheriff Hallard, and Mr J.
R. Stodart, W.S., by giving me the benefit of their knowledge
and experience, the one as a Magistrate and the other
as an Agent and Practical Conveyancer, have enabled me
to present it to the public, if not with confidence, at least
with far less hesitation than I should otherwise have felt.
ADVOCATES' LIBRARY, July 1859.
INTRODUCTION.
OF THE LAW OF SCOTLAND.
1. THE customs which spring from the notions of right and
wrong of a rude and simple community, form the groundwork
of the legal arrangements of Scotland, as of every other
nation.
2. These customs, transmitted first orally and then by writing,
and modified and supplemented by the increased experience, the
growing requirements, and the external relations of each generation,
constitute the law of Scotland as it now exists.
3. Amongst the external causes which have acted on the law
of Scotland, there are two which may be singled out as the most
important: the intimate connection which subsisted for several
centuries between this country and the continent of Europe,
more particularly France and, the Union with England.
1st, To the French connection, which at one time amounted to
actual internationalisation,1 we trace a large infusion of the principles
of the Roman civil law into our law of marriage, of guardianship,
of contracts, and the like; and the adoption of several
judicial arrangements peculiarly French, such as the constitu1
1558, c. 66.
tion of the College of Justice on the model of the Parliament of
Paris, and the institution of a public prosecutor of crimes.1
2d, To the Union we ascribe the assimilation which has already
taken place, and which is daily going on, between the laws of Scotland
and England. This assimilation has hitherto been most
perceptible in the different departments of our mercantile law,
and in our law of evidence.
4. The statute law of Scotland divides itself into two distinct,
and, in many respects, dissimilar portions; the first having been
enacted by the Parliament of Scotland previous to the Union,
the second by the Parliament of Great Britain.
5. The earliest statute now in force is the 11th of the First
Parliament of King James I. (1424), "Of Cruves, Zaires, and
Satterdaies Slop," as interpreted by the Act 1477, c. 73, "Anent
Cruves." In both of these Acts reference is made to an "old
statute made by King David," requiring that "ilk heck of the
foresaidis Cruves be three inche wide" It thus happens, by a
singular chance, that this unimportant regulation as to the mode
of catching salmon, is the oldest statutory provision now in force
in Scotland.
6. In some respects the early legislation of Scotland was advanced
beyond that of conterminous and contemporary nations.
The important Act by which agricultural leases are made effectual
against the successors of the granter, was passed in 1449
(c. 18), and the Act establishing the prescription of obligations
by the lapse of forty years, in 1469 (c. 28). In opposition to
the English view, it has always been held that the ancient
1 Much of the legal and official terminology by which the law of Scotland is
distinguished from that of England, and which it possesses in common with the
legal and judicial systems of the continent, is to be ascribed to the same cause.
The ouverture of the French estates still lives in the overtures of our ecclesiastical
courts; the English mayor with us becomes a provost or prevôt, the
alderman becomes a baillie, the barrister an advocate or avocat, the agent a procurator
or procureur, and the like.
Statute Law of Scotland may be repealed by desuetude; and
the circumstance to which the old statutes, which we have mentioned,
owe their binding force at the present day, is consequently
not that they were once enacted, but that they are still in accordance
with the requirements of the community.
7. The Acts of Sederunt, or ordinances made by the Court
of Session for regulating the forms of proceeding to be observed
in actions, are likewise regarded as a part of the written law of
Scotland: the Court having a delegated power from Parliament
to "make sik actes, statutes, and ordinances, as they sail thinke expedient,
for ordouring of proces, and haistie expedition of justice."1
BOOK I.
OF THE FAMILY RELATIONS.
8. THE family being the original seat of legal as well as of moral
rights and duties, it has been customary with lawyers to give to
the relations which subsist between its members, and the obligations
which spring from them, precedence over those between the
members of the same or separate communities simply as such.
CHAPTER I.
OF HUSBAND AND WIFE.
I.—Of the Constitution of Marriage.
9. Marriage, in the eye of the law of Scotland, is a civil contract,
constituted, like every other civil contract, by consent.
1 1540, c. 93.
10. Nor does the fact of consent to this contract require to be
established by any peculiar civil solemnities, but admits of being
proved by ordinary evidence, either parole or written.
11. Fully alive, however, to the peculiar importance of this
contract, of which Lord Stowell has justly said, that it is the
"parent, not the child of civil society," the law of Scotland has
always watched with jealous care over the completeness of the
evidence by which it is alleged to be established. Moreover,
the circumstance of its being constituted in the same manner,
does not place the contract of marriage in all respects on a
footing of equality with other civil contracts. Being, as Lord
Stair observes, "a divine and not a human contract;" the
obligations arising from it are not like those which "take their
rule and substance from the will of man." It cannot, for example,
be arbitrarily limited in its duration; it cannot be so framed as
to invert the relative position which nature has assigned to the
sexes; it cannot be entered into by parties within certain degrees
of relationship, and the like.
12. In consequence of this peculiarity in its nature there are
certain impediments to marriage which are not impediments to
the formation of other contracts. In other respects the following
observations are general, and may be regarded as a statement
of the principles by which all contracts are governed.
13. Legal consent must be voluntary and intelligent; and
persons who are either actually, or whom the law presumes to be,
incapable of such consent, are consequently incapable of marriage.
14. For this reason neither idiots, madmen, nor pupils can
marry, — and a marriage will be invalidated by force, fear, error,
or extreme intoxication.
15. Twelve in females, and fourteen in males, being the ages at
which their pupilarity ceases, are the ages at which they may respectively
marry. This arrangement, which was borrowed from
the Roman law, and which may have been suited to the climate
of Italy, can scarcely ever have been free from inconvenience in
this country.
16.Extreme youth of one of the parties, even where the years
of pupilarity have been passed, has always been regarded in
Scotland as raising a presumption that he has been the victim of
fraud; and circumstances which, in the case of persons more advanced
in life, would not be listened to, will be regarded as important
in judging whether a very young person has given that
free and intelligent consent which alone constitutes marriage.
17. The consent of parents or guardians does not enable
pupils to marry; and is not necessary to the marriage of minors.
18. The consent which constitutes marriage must be to a
present act, and, consequently, all ante-nuptial contracts, sponsalia,
and other promises to marry, whatever may be the form of their
expression, may be resiled from. They then become grounds
for actions of damages.
19. The reverse is the rule where sexual intercourse has taken
place between the parties subsequent to a promise of marriage.
20. It has been keenly discussed amongst lawyers, whether
promise followed by copula is itself marriage, or is only a
ground on which either of the parties may force the other to
complete a marriage. This point, which may come to be of great
importance in a question as to the legitimacy of children, if raised
after the death of either of the parents, and when solemnization
has become impossible, has never arisen in such a form as to receive
a judicial decision.
21. It is not uncommon, where there has been sexual intercourse,
to insert in the summons of an action of declarator of
marriage by the woman, an alternative conclusion for damages
for seduction.
II. — Of Regular Marriage.
22. The ordinary form in which express consent is given, in
Scotland as elsewhere, is by a solemn vow of the parties, uttered
before a clergyman, in the presence of at least two witnesses.
23. Regular marriages, in the Presbyterian form, are not celebrated
in church; but the place of celebration, in the eye of
the civil law, is a matter of perfect indifference.
24. A regular marriage must be preceded by the publication
of banns.
25. This proclamation, by which a purpose of marriage is
announced, and all concerned are required to state any objection
to the proposed union which they may know, takes place in
church, when the people are met for divine worship, either on
three several Sundays, or, as is now more usual, three times on
the same Sunday. The session-clerk cannot proclaim banns until
the parties have resided six weeks in the parish. Where the
parties reside in different parishes proclamation must be in both.1
In populous parishes, where the session-clerk must often have
no personal knowledge of the parties, they must bring him a
certificate, signed by two householders, or by an elder, stating
that one or both of them have been residenters in the parish for
six weeks or more; and that they are unmarried.2
26. Registration. — It is required, by 17 and 18 Vict., c. 80,
that in all cases of regular marriages, when the certificates of the
proclamation of banns are given out, that they shall be accompanied
by a copy of the schedule (C.); and that, upon the
solemnization of the marriage, such schedule, having all the information
thereby required inserted, shall be produced to the
minister, or the person solemnizing the marriage according to
the rites of Jews or Quakers; or shall be filled up in the presence
of the minister, and signed by the parties contracting the
marriage, and by the witnesses, male or female, present thereat,
1 Act of Assembly 1699, c. 5; and Regulations of 1782 and 1784, c. 8; see
also Cook's Styles of Procedure, p. 32.
2 Cook's Styles of Procedure in Church Courts, p. 33.
not being less than two, and also by the minister; and shall be
delivered to the parties, who within three days, shall either deliver
it, or send it by post, to the registrar of the parish wherein
the marriage was solemnized (sec. 46).
In an English Act, 19 and 20 Yict., c. 119, it is provided
that, where one of the parties intending to marry without
license is resident in Scotland, a certificate of proclamation of
banns in Scotland, by the session-clerk, shall be valid and effectual
for authorising the solemnization of marriage in England
(sec. 8). There is no reciprocal Act; but the invariable practice
in Edinburgh is to make the proclamation if one of the parties
has been resident for the requisite period. The same rule is
followed in the case of soldiers and sailors.
27. Dissenters. — Till a recent period only the clergy of the
Established Church of Scotland could celebrate regular marriages.
The statute 10 Anne, c. 7, allowed Episcopal clergymen,
who had taken the oaths to government, to marry, and this
privilege was extended by 4 and 5 William. IV., c. 28, to all
persons in holy orders, of whatever communion, after proclamation
of banns in the Established churches of the parishes of both
parties. In the case of Episcopalians, the statute requires that
proclamation shall also be made in the chapel.
28. The form of the marriage service, both in the Presbyterian
and Episcopalian churches, is in strict accordance with the
principle of the marriage being the result, not of the ceremony,
but of the expressions of mutual consent. In the Presbyterian
Church the clergyman declares the parties to be married; in the
Episcopal Church he is instructed to say, "Forasmuch as these
two have consented together, I pronounce that they be man and
wife together."
III. — Of Irregular and Clandestine Marriage.
29. All marriages which are not celebrated by a clergyman
after proclamation of banns, are irregular, and such of these
irregular marriages as are entered into before a person professing
to act as a religious celebrator, without being a minister of
religion, are clandestine, and expose the parties, the celebrator,
and the witnesses, to certain penalties.
30. Express consent may be either in words before witnesses,
or in writing by the parties. No particular form is required
either for a verbal or written declaration, the only indispensable
requisite being, that the fact of present resolve shall be rendered
indisputable.
31. Matrimonial consent will be inferred from "habit and
repute," that is, from cohabitation of the parties, and from their
having the reputation of being married. The cohabitation must
have been in Scotland, and the repute must not be confined to
a few individuals, but must be general in the neighbourhood, and
unequivocal.
32. If the connection has begun in concubinage, a very palpable
change of purpose will be required in aid of the proof of public
opinion.
33. By 19 and 20 Vict., c. 96, it is enacted, "that, after the
31st December 1856, no irregular marriage shall be valid in
Scotland, unless one of the parties has lived in Scotland for the
twenty-one days next preceding the marriage, or has his or her
usual residence there at the time." It is further enacted, that the
parties, to such a marriage, may apply within three months jointly,
to the Sheriff or Sheriff-substitute of the county for a warrant
to register it. Upon proof that one of them had lived for
twenty-one days, or had his usual residence in Scotland, and
that they have contracted marriage, the Sheriff is to grant a
warrant to the Registrar of the parish, to record the marriage.
A certified copy of the entry, signed by the Registrar, which he
is bound to give for 5s., is declared to be evidence of a valid
marriage.
IV. — Of the Impediments to Marriage.
34. There are certain incapacities to marriage which do not
affect other contracts.
35. Impotency, being an incapacity to perform the duties of
this contract, is a bar to its formation. Impotency cannot be
pleaded by a third party. When judicially established by either
of the parties themselves, it is held by the Court to be a ground,
not for dissolving the contract, but for declaring that no contract
ever existed.
36. Previous marriage, whilst subsisting, forms an incapacity,
Which will not be removed by the fact that the party may have
believed in its dissolution by the death of his partner.
37. Adultery is a statutory impediment to marriage between
the adulterers.1
38. Relationship within certain degrees, either of consanguinity
or affinity, renders the parties incapable of contracting matrimony.

The forbidden degrees are the following: —
1. Ascendants and descendants, — i. e., parents and children,
grandparents and grandchildren, etc., to the most distant
degree.
2. Collaterals in the first degree, — i. e., brothers and sisters.
3. Collaterals who stand in loco parentis, — i. e., where the one
party is brother or sister to the direct ascendant of the
other.
39. There is no difference between full and half-blood.
40. The degrees which are prohibited in consanguinity are so
in affinity.
41. The question of the validity of a marriage with the sister
1 1600, c. 20. As to whether this statute is in desuetude, see Mr Fraser's
Domestic Relations, vol. i., D. 82 et
of a deceased wife has not been formally decided in Scotland
in any civil cause; but the connection, when occurring in the
wife's lifetime, has been held to be incest by the Court of Justiciary.1

V: — Effects of Marriage on the Personal Status and Property
of the Spouses.
42. In the eye of the law, the person of the wife is sunk in that of
the husband. It is in obedience to this principle that she assumes
his name and rank, that she becomes legally subject to him in
all domestic and conjugal affairs, and that he is her curator, with
powers in some respects more extensive than those which belong
to the curator of a minor. The husband is further the sole and
absolute manager of the common fund which is created by the
union of the moveable property which belonged to the spouses
before, or which may accrue to them during the marriage.
43. The personal obligations of married women are invalid;
and, consequently, they cannot grant bonds, bills, or promissory
notes. Even where a bill granted by a woman before marriage
was discharged, and renewed by another bill after marriage, the
renewed bill has been held not effectual against her. 2
44. The husband's consent will not validate the wife's obligation,
because he cannot authorise her to shake off the disability
which the law has imposed. But in certain cases, as for instance
a bond granted by the wife over her separate heritage, the husband's
consent will give legal completeness to the obligation,
when coupled with the ratification of the wife out of the presence
of the husband and before a judge.
1 John Oman, Inverness, April 14, 1855, Irvine, ii. p. 149. A sentence of
transportation for fourteen years was pronounced in this case, which, on application
to the Home Secretary, was remitted, conditionally on the panel not
living in Scotland during that time.
2 Balfour v. Ewing, 5th Mar. 1831.
45. From the wife's inability to enter into obligations, it follows
that she cannot sue or be sued at law. This disability
continues to subsist even after the dissolution of marriage by the
death of the husband, as regards all obligations entered into
during its subsistence, — the view of the law being that they never
were contracted. But a bond entered into during marriage may
be rendered effectual by being acknowledged and acted upon after
the marriage has been dissolved.1
46. Though a wife cannot be obliged, she may insist on the
fulfilment of obligations which have been entered into with her
by others who were aware of her situation. This privilege belongs
to married women in common with minors and pupils. Of
course the wife must perform her part of the contract to the
person whom she thus compels to perform his.
47. There are certain exceptions to the rule that obligations
by married women are null..
(1.) A contract by a married woman will be effectual against
her separate estate, if the subject of the debt has been applied
for her own peculiar benefit in a matter which was not legally
and properly a debt of the husband. Debts contracted by her
before marriage, and monies expended on improvements of her
estate, or expenses incurred in the management of her property,
are held to be in this position.
(2.) A wife can execute a testament as to her separate estate
without her husband's consent, or contract a personal obligation
which is not to come into operation till after the marital power
has ceased. Till recently, her power of testing extended to her
portion of the goods in communion; but by the recent Act to
regulate intestate succession in moveables,2 it is provided (sec.
6), that in case of the wife's predecease, whether testate or intestate,
her representatives shall have no right to any share of
the goods in communion; nor shall any legacy, or bequest, or
1 Erskine, iii. 3, 47; Fraser, i. 254. 2 18 Vint., c. 23.
testamentary disposition thereof by such wife, affect or attach to
the said goods or any portion thereof.
(3.) Where a wife fraudulently holds herself out to be unmarried
she will be bound.
(4.) It has been held that, where she incurs a fine for a crime
which she has committed, her separate estate may be attached
for its payment; but her person cannot be attached during the
subsistence of the marriage.1
(5.) Where the husband is civilly dead, i. e., where he has been
outlawed for not appearing to stand trial for a crime.
(6.) Where the husband is insane, his curatorial powers are
at an end, and the wife may manage and even alienate her property.
The privilege seems, however, to be confined to her
heritable estate, and does not extend to the granting of personal
obligations.
(7.) Where the spouses live separately, and the wife has an
aliment, that aliment may be attached by a creditor for debts
which she has contracted for necessaries. The husband, having
supplied her with a suitable provision, will be free from all
further liability.
(8.) Where the spouses are judicially separated, the wife will
have a separate aliment allocated to her by the Court; and this
a creditor may attach, provided the debt incurred be for necessaries.

(9). Where a wife has been compelled by ill-treatment to
desert the society of her husband, she may incur a debt for
necessaries, which will be binding on him; and the same is the
rule where she is deserted by him.2
(10.) When the husband is abroad, the obligations of a married
woman will be effectual so far as they are for necessaries to
herself and her family. If, in order to obtain a livelihood, she
1 Fiscal of Lanarkshire v. M'Luckie, 20th Jan. 1796; Hume's Decis.
2 Fraser, i. 264, 319; and cases referred to.
should, in such circumstances, commence business as a merchant,
keep a tavern, or the like, she may enter into contracts relative
to such business, and these contracts may be enforced by diligence
against her. As soon as her husband returns to the country
the obligations for necessaries which she has incurred may
be enforced against him, but her powers of independent action
cease. If she still continues to trade, she is presumed to do so
with his consent, and her deeds are binding not on her, but on
him.
48. Curator ad Litem. — As a wife cannot sue or be sued in
her own name, the Court is in use to appoint a curator ad litem
to supply the place of the husband in cases in which she has a
separate interest, or where he will not appear as a pursuer, or
cannot be cited as a defender.
49. The general case in which a curator is appointed, is when
the husband is insane, abroad, or in banishment, where his
residence is unknown, where he refuses unreasonably to concur,
or where the wife is obliged to institute an action against
him.
50. A wife will not be allowed to sue her husband except on
necessary or urgent occasions, as for aliment, judicial separation,
divorce, or implement of her marriage-contract when he is on
the verge of bankruptcy.
51. The domicile of the wife follows that of the husband; and
she must be cited to the court which has jurisdiction over him,
except in the special cases where she can be proceeded against
separately.
52. The husband becomes liable for the moveable debts of the
wife contracted before marriage, even where she had no separate
estate. Amongst her moveable debts are included interest on
heritable bonds, or other heritable debts, whether due prior to
marriage, or falling due during its subsistence.
53. The husband is liable for his wife's marriage clothes, as
they are supposed to have been purchased for his peculiar benefit;
but he is not liable for her ordinary clothes if she resided in
family with her father previous to the marriage.
54. Though the husband has renounced his right of administration,
and every pecuniary advantage from the marriage, his
liability for the debts of the wife still continues; the principle
being, that "by marrying her he withdraws her body from personal
diligence," and must put himself in her stead.
55. A debt contracted by the wife after proclamation of banns,
is held not to be a debt before marriage, and in so far as the
husband is concerned it is null.
56. The liability of the husband ceases with the dissolution of
the marriage, either by death or divorce; and hence a decree
against him for a debt of the wife's is qualified. She is herself
decerned against as principal debtor, and the husband for his
interest. Execution against the wife is superseded during the
marriage.
57. The husband's heritable as well as his moveable property
is liable to diligence for this purpose; and wherever either
moveables or heritage have been actually attached, the death of
the wife will not release them.
58. Where the wife is possessed of a separate heritable estate,
the husband is entitled to relieve himself from it for her debts
which he has paid, whether heritable or moveable.
59. The rule regarding the heritable debts of the wife is,
that the husband is liable for them only to the extent to which
he is enriched by the marriage.
60. A husband who has only received a moderate tocher is
not held to be enriched, he being himself regarded as a creditor
for a provision to that extent.
61. What is a competent tocher, is a question to be determined
according to the circumstances of each case, and when
contested is entirely in the discretion of the Court.
62. Even after the dissolution of the marriage the husband
continues to be liable for the wife's debts to the extent to which
he is held to have been a pecuniary gainer.
63. Where the wife has conveyed her whole property, heritable
and moveable, to the husband, he is liable for all her debts,
even after the dissolution of the marriage.
64. The wife's heirs are liable before the husband, even where
he is lucratus by the marriage.
65. There are certain cases in which, even during marriage,
the wife is able to contract so as to bind the husband. This
exception to the general rule proceeds on the principle that in
these cases she acted as his agent.
66. The wife is presumed by the law to be set over the
domestic affairs of the family, and entrusted with their management
(præposita negotiis domesticis); and, consequently, the husband
is held to have consented to all contracts that are entered
into by her in that capacity.
67. In this respect, however, the position of the wife is not
peculiar, as the same rule holds with reference to a daughter or
any other recognised housekeeper.
68. It is only for necessaries that the husband is thus liable;
but this word will be so construed as to include whatever is
suitable for a family in the station of life occupied by the husband.
Nor is it confined to the furnishings of the family, but is
held to include all expenditure on the part of the wife which is
absolutely indispensable, from whatever cause. On this ground,
a husband has been held liable for the expenses incurred to an
agent for carrying on an action of declarator of marriage, in
which he himself was defender,1 and for defending her in an
action of divorce in which she was unsuccessful.2
69. A tradesman, dealing with a married woman, is bound to
1 M'Alister v. Husband, Mor. 4036.
2 Gray v. Mickle, Mar. 10, 1803.
exercise a sound discretion as to the character of the goods furnished
to her, as her husband will not be bound if they altogether
exceed, either in quantity or quality, the reasonable requirements
of a person in his condition.
70. If it is in his power to return the goods, and he omit to
do so, he will be liable; and it will be no answer to say that the
wife is disobedient, as it is his duty to exercise his marital
rights.
71. The presumption that the debt was incurred with the
husband's authority, will be repelled by evidence showing that
the credit of the wife was alone relied on by the tradesman.
72. The husband will be liable for articles of dress or ornament,
which the wife has worn in his presence without his
objecting.
73. The husband's liability will not be removed by having
given money to the wife for the purpose of paying a debt, if she
has not applied it to that purpose.
74. The wife cannot borrow money in her capacity of domestic
manager; and in order to render the husband liable, it must be
shown that it has been actually expended either for his benefit
or for the aliment of the wife.
75. If the husband has acknowledged the debt, by asking
indulgence from the creditor, or by paying interest, he will be
liable.
76. The wife cannot sell or pledge money or furniture belonging
to the husband.
77. She is entitled to hire domestic servants without his authority.
This point does not appear to have been determined
in Scotland, but it has been so fixed in England.1
78. The separate estate of the wife is not liable for alimentary
or necessary debts which she has incurred for the family, even if
the husband should be bankrupt.
1 Fraser's Domestic Relations, i. p. 306.
79. In addition to the cases in which the law presumes the
consent of the husband from the mere fact of the marriage, there
are others in which it will be presumed from special circumstances.
In these the wife holds to the husband the position of
a mandatory.
80. If for a length of time he has fulfilled her engagements,
his consent will be presumed. it is generally in the case of
their carrying on some sort of joint trade, such as keeping an
inn, that she is held to bind him in business transactions.
81. It is said that the wife may be specially constituted commissioner
to the husband; and in that capacity may manage his
heritable estate, grant leases, burthen his property with debt,
enter vassals, and even sell. Further, that she may be appointed
his factor or agent, and as such may grant bills for him, and
enter into contracts as an ordinary agent; the husband in such
cases being liable in damages for the wrongous acts of the wife.1
82. But in general no act by a wife during her husband's lifetime
is excepted from his curatory; and where his consent is
attainable it ought always to be procured, especially in any
transaction having reference to heritage.
VI.—How the husband ceases to be liable for the Wife's Debts.
83. Inhibition is a species of legal notification to which the
husband must resort in order to free himself from liability for his
wife's acts in those cases in which his consent is presumed by the
law. It is in his power to resort to this expedient whenever he
wishes to depose his wife from the office of domestic manager
which the marriage has conferred; and he may use it according
to his pleasure or caprice, with reason or against reason. The
object of conferring this arbitrary power on the husband, is to
prevent the necessity of exposing domestic quarrels to the judgment
of a court or a jury.
1 Fraser, i., 310.
84. The inhibition is in the form of a judicial prohibition, addressed
to the wife, forbidding her to dispose of her husband's
effects, or contract debts, and to the lieges in general, forbidding
them to buy his goods from her, or give her credit.
85. The inhibition must be executed both on the wife and the
public. The first is effected by a messenger-at-arms serving a
short copy on her at her residence; the second, by publication at
the head burgh of the shire where the husband resides, and by
registration either in the particular register of the shire, or in the
general register of inhibitions at Edinburgh.
86. No particular intimation of the inhibition to the merchants
with whom the wife was in the habit of dealing is necessary;
and it will be operative against them even should they be
ignorant of its existence. The effect will be the same though
the merchants be resident abroad, it having been decided that
"the diligence, being regular according to the law Of Scotland,
must be effectual against all mankind."1
87. The only exception to the validity of an inhibition is
where the husband fails to provide the wife with a sufficient
maintenance. In that case she may contract in so far as is necessary
for her own subsistence.
88. Even after inhibition, the wife may contract with her husband's
consent; and this consent may be inferred from his knowing
and approving of her transactions.
89. Private notice to a tradesman, in so far as the particular
instance is concerned, is equally effectual with inhibition.
90. Where the husband and wife have separated, either by
mutual consent or in consequence of maltreatment by the husband,
the law will no longer presume that the wife has his authority
for incurring debts for domestic purposes. The only
grounds on which a tradesman will be entitled to recover from
1 Topham v. Marshall; Mor., App. v. Inhibition, No. 2 (1808).
the husband, in such circumstances, will be that the debts were
incurred for the wife's personal maintenance.
91. Though a husband has turned his wife out of doors for
adultery, he cannot exempt himself from the obligation to
maintain her by an advertisement in a newspaper cautioning the
public not to trust her, nor by particular notice to individuals not
to give her credit.
92. But where the wife, without sufficient cause, leaves the husband,
he is not bound to furnish her with a separate aliment, nor
will he be liable for the debts which she contracts for that purpose.
93. Where a wife went to London without her husband's consent,
it was found that he was not liable even for her necessary
furnishings whilst there.1
94. In order that the husband's liability for aliment may continue,
the wife must assign such a cause for leaving him as a court
or a jury can entertain, and not such as has its existence only in
the mind of a fanciful and capricious woman.
95. Adultery on the part of the husband, or the introduction
of a prostitute into his house, will be sufficient.
96. If no inhibition has been used, and no notice given to the
tradesman, the onus of showing that he knew of the separation
will lie on the husband.
97. It has been held in England, that if the tradesman was aware
of the fact of separation, he must accept the onus of showing that
it took place in such circumstances as not to free the husband
from liability.
98. If, during her desertion, the wife become insane, the
husband is bound to maintain her, because from that moment
she no longer has the will to violate the duty of conjugal adherence;
and she is held no longer to do so.
99. Where the husband has made a suitable allowance for a
separate establishment to the wife, tradesmen who deal with her
1Countess of Caithness v the Earl, M. 5886. Fraser, i., p 320.
must rely on this allowance alone; and no intimation will be required
to free the husband from liability.
VII.—Of the Community of Goods.
100. The community of goods, amongst the Teutonic races to
which its origin has been traced, was an actual partnership between
the spouses; bringing along with it equal rights both to
the property and management of the common fund. On being
adopted by the customary law of France, the doctrine of the
communio underwent an entire change. The husband became
"lord of the moveables and conquest heritage," and the wife's
right resolved itself into a claim to a certain portion of them (a
half or a third) after his death. The name, no longer retaining
its original signification, continued to hold its ground in France,
and was imported into Scotland, towards the end of the reign of
Charles II., by the lawyers, who were then almost invariably educated
in France. But the arrangement regarding the moveable
property of the spouses which had formerly prevailed in Scotland,
being not very dissimilar to that which had grown up in France,
underwent no very serious alteration; and the doctrine of the
community of goods, though supported by the high authority of
Lord Stair, never was accepted in Scotland to the extent of
establishing an equality of rights between the parties, or extensively
affecting the marital powers of the husband.1
101. The true doctrine of the law of Scotland, and that which
has since been followed in the courts, was laid down in 1842:-
" The absolute power of use and disposal being in the husband,
we must consider the goods, nominally in communion, as truly his,
not at all the wife's property."2
1 This interesting speculation, the soundness of which has not been universally
admitted, will be found at length in Fraser, i., 322, et seq.
2 Shearer v. Christie, Nov. 18, 1842.
102. In accordance with this view, it has been further decided1
that the claims of the wife on the estate of the husband, after his
death, is not a claim to the division of a common fund, but simply
a right of debt by which the wife becomes a creditor of the husband's
executors. The same doctrine has been applied to the
claim of the children, hereafter to be mentioned.
103. In apparent consistency with the doctrine of a community
of property, the husband, till the passing of the recent
Moveable Succession Act, was bound, in the event of the wife
predeceasing him, instantly to account to her heirs for her half of
the goods. By that Act (18 Yid., cap. 13), in accordance with
what we have seen to be the true principle of the husband's proprietory,
it is provided (sec. 6), that, "where a wife shall predecease
her husband, the next of kin, executors, or other representatives
of such wife, whether testate or intestate, shall have no
right to any stare of the goods in communion, nor shall any legacy
or bequestor testamentary disposition thereof, by such wife, affect
or attach to the said goods, or any portion thereof."
104. Another provision which was borrowed by our law from
that of France was to the effect that, if the marriage was dissolved
within a year and day without a living child, all that the husband
had received must be returned. By the 7th sec. of the Act to
which we have just referred, the distinction between this case
and the case of a marriage which has endured for a longer period
is removed.
105. The proprietory powers of the husband are confined to
the moveable estate of the wife; whatever the law of Scotland
holds to be heritable, remains the property of the wife.
106. The distinction between heritable and moveable, or, in
English phraseology, between real and personal, property being
the same when applied to the rights of husband and wife as of
heir and executor, will be considered under Succession.
1 Fisher v. Dickson, 16th June 1840; affirmed 6th April 1843.
VIII.—How the Husband's Power is Excluded.
107. The conjugal power of the husband may be excluded
either by the nature of the subject, by implication from the
position of the other parties, or expressly.
108. A provision for the support and aliment of the wife,
whether proceeding from a third party or from the husband
himself, is removed beyond his control. He cannot demand it
when due by a third party, and his discharge would not be a sufficient
discharge to a debtor, though, as matter of prudence, the
third party should always require the husband's concurrence to
the wife's discharge.
109. If the alimentary provision be greatly in excess of the
requirements of a person in the social position occupied by the
wife, it will, to the extent to which it is in excess, be attachable
by the husband's creditors.
110. If the alimentary provision has proceeded from a third
party by whom the power of the husband has been expressly excluded,
it will not be attachable, however large, either by the husband
or his creditors.
111. The paraphernalia of the wife—i.e., her dress, jewels, and
other strictly personal possessions—do not fall under the power
of the husband. She may give them away without his consent,
and they cannot be attached by his creditors.
112. Articles of furniture, though belonging to the department
of the domestic economy over which the wife may be supposed
to preside more exclusively, such as tea-plate and linen, even
though given to her before marriage, and marked with her
initials, are not paraphernal. A chest of drawers, on the other
hand, in which the dress and ornaments of the wife were kept,
was found to be paraphernal.
113. The character of paraphernalia may be communicated to
articles not falling strictly under the above category, by being
given by the husband to the wife, previous to marriage, on this
express understanding.
114. These articles would lose this character by his death, and
might be attached by the creditors of a second husband. On the
death of the wife, her paraphernalia descend to her own executors
in preference to her husband or his representatives.
115. The wife may exercise over her heritable property, with the
husband's consent, all the acts of administration competent to
any other proprietor. She may sell, alienate, burden, or grant
it in lease. She may also borrow money, and grant an heritable
bond over it. But it is the husband alone who can uplift the
rents and profits of the wife's estate, in all cases in which his
marital powers are not expressly excluded or renounced. As the
property, however, continues in the wife, he cannot alienate it
or burden it with debt, so as to affect it after his own decease,
nor can he grant it in feu. He may grant a lease to last during
his own life, but not longer.
116. In treating of the powers of the husband, it is necessary
to remark that a distinction exists between the jus mariti and
the right of administration, as the former may be excluded where
the latter remains. In this case, the fruits and annual returns
from the property belong to the wife, and the application of them
must be according to her direction; but she will not be able to
sue for them without her husband's concurrence, or even perform
the ordinary acts of administration, such as granting leases
and removing tenants, without his consent. The exclusion of the
jus mariti will, however, protect the property effectually against
the diligence of the husband's creditors.
117. Where both the jus mariti and right of administration
are excluded, the wife becomes the independent manager of all
the property thus possessed by her. But it would be very unsafe
to take a conveyance of heritage from a woman in such circumstances,
without her husband's consent as her curator.
118. The marital powers of the husband are not affected by
voluntary separation, or by the absence of the husband from
Scotland; and it is doubted whether even judicial separation
would entitle her to alienate or burden her property, or to exceed
the limits of ordinary administration and management.
119. "Where the husband," says Mr Erskine, "is from
furiosity, or other disability, rendered incapable of interposing
his consent as curator, the necessity of the case may support a
deed granted by the wife alone, affecting her heritage, if it be
rational."1
120. In order to protect a deed by a married woman from
challenge, on the ground that it was executed under the influence
of the force or fear of the husband, it roust be ratified by an
oath emitted by her, in his absence, before a judge. This
duty is generally performed by a justice of the peace at his
own residence. The ratification is indorsed on the deed, and
must be subscribed by the wife, or by two notaries when
she cannot write. The attestation of the justice will not be
sufficient.
121. This ratification does not bar the wife from challenging
the deed on any other plea than force or fear, such as fraud;
neither is the allegation that the force or fear proceeded from
third parties excluded.
122. When the wife raises an action of separation or divorce,
she will be entitled to a separate aliment from her husband
during its discussion.
123. She will have no such claim, however, if she has a separate
estate sufficient for her maintenance; and, in any case, it is in the
discretion of the Court to give or withhold the aliment, and to fix
its amount according to the circumstances of each particular
case.
1 Ersk. i., 27.
IX.—Separation—Judicial and Voluntary.
124. The law considers conjugal adherence to be one of the
most sacred duties arising from the married state; and, as a
general rule, it may be stated, that the only case in which a
judicial separation will be granted by a court of law in Scotland,
is that in which this duty can no longer be performed without
danger either to life or character.
125. All the grounds for separation may thus be reduced to
the two heads of cruelty and adultery.
126. Personal violence endangering life, reasonable apprehension
of such violence, or anything analogous to personal
violence, such as starving a wife, exposing her, or the like, will
he sufficient to authorise judicial separation.
127. Threatening words must be of such a character as to
show a settled purpose of acting on them; not mere expressions
of passing anger.
128. A false imputation of lasciviousness, made by the husband
against the wife publicly and perseveringly, was held by the
Commissaries and the Court of Session to be a sufficient ground
for judicial separation; but this decision the House of Lords reversed,
after a three days' hearing.1 The correctness of this
decision, however, has been called in question by obiter dicta
from the bench; and opinions have been indicated that a course
of harsh and contumelious usage is conceivable, which, though unaccompanied
by threatenings of personal violence, would be sufficient
to warrant separation.
129. It is thus apparent that no amount of mere austerity of
temper, petulance of manner, rudeness of language, or even
occasional passion, will be held as amounting to cruelty. Still
less will the denial of indulgences, luxuries, and accommodations,
however unreasonable, be held as such; for "the Court
1 Leckie v. Moir; Elch., v. Husband and Wife. No. 33 (1750).
has no scale of sensibilities by which it can guage the quantum
of injury done and felt."
130. Habitual intoxication on the husband's part, not accompanied
by personal violence, will not be sufficient; but turning
the wife out of doors amounts to cruelty, and opens to her the
remedy of judicial separation. It is doubtful if the husband's
desertion has the same effect.1 Either proceeding, if continued
for four years, forms the ground of an action of divorce for
desertion.2
131. The husband is entitled to forbid the wife's friends from
visiting her; and he may confine her to the house, or at least
direct her movements so as to prevent her from going to places
and engaging in pursuits of which he disapproves. Though
such prohibitions, in ordinary circumstances, would unquestionably
amount to a harsh exercise of the marital authority, there
may be causes to justify them, of the reasonableness of which a
court cannot, and is not called upon to judge.
132. The husband's crimes, as being productive of personal
danger to the wife, both physical and moral, are just causes of
awarding her the remedy of separation.
133. The fact of either spouse having become diseased, however
loathsome may be the character of the affection, will not
have this effect, except in the single case where the disease is of
such a character as of itself to afford prima facie evidence of
adultery.
134. Neither venereal disease contracted before marriage, nor
impotency supervening from the effects of incontinence before
marriage, nor the taint of hereditary madness, if undeveloped,
will be adequate grounds for separation.
135. Adultery is a ground for separation, which may be
chosen in preference to divorce at the option of the injured
party.
1 Fraser, p. 458. 2 Infra, p. 38.
136. The remedy of judicial separation is competent to both
spouses, though, where cruelty is the ground on which it is
sought by the husband, the facts must be somewhat different
from those which would be sufficient to entitle the wife to the
remedy.
137. It has been held incompetent to pronounce judgment in
an action of separation in favour of the pursuer, merely upon
the admissions of the defender.
138. Judicial separation annihilates the marital power over
the wife's person. She may go where she chooses; and, consequently,
the rule of law, that the husband's domicile is hers,
no longer holds; and she must be cited as if she were unmarried.

139. Except as regards the wife's separate aliment, judicial
separation makes no change on the patrimonial relations of the
spouses.
140. The custody of the children will be regulated by the
Court, in the exercise of a sound discretion. Where the husband
commits the wrong, they will, in the general case, be given to the
wife till the girls be twelve and the boys seven years of age.
141. The separation may be recalled by the same Court which
granted it, on proof of the fact that the cause for which it was
granted no longer exists.
142. It may also be recalled by mutual consent, which may
be either express or implied. Thus, where a wife, having obtained
a decree of separation, returned to the society of her husband
before an aliment was modified to her, and lived with him for
four years, it was found that a remission of the decree by implication
had taken place.
143. Lawburrows is a remedy of which those spouses may
avail themselves who are unwilling to proceed to so extreme a
measure as separation, and who, notwithstanding, feel that they
stand in need of the protection of the law.
144. There is this difference between this remedy as applied
to husbands and wives and to parties unconnected with each
other, that whereas, in the latter case, it is enough if the party
injured swear that he dreads bodily harm, in the former, the
libel must be served on the wrong-doer, and its whole averments
supported by proof before the prayer of the petition will
be granted.
145. Voluntary separation is the remedy adopted where the
spouses live unhappily together, but where neither has acted towards
the other in such a manner as to warrant judicial separation,
or where they are unwilling to expose their failings in a
court of law.
146. By our ancient law, a contract of voluntary separation
was regarded as null, on the ground that, being inconsistent with
the duty of adherence incumbent on married pairs, it was contra
bonos mores. This doctrine is still adhered to, to the extent of
not enforcing such contracts with regard to future time, though
they will be held as having regulated the rights of parties as
regards the past.
147. The contract of separation narrates the intention of the
parties to live separately, and sets forth the causes of separation.
This latter is a point on which the injured party should carefully
insist, so as to obtain a judicial separation without difficulty
should the voluntary contract be revoked. Either party may
revoke the deed during marriage, but not after its dissolution.
X.—Donations between Husband and Wife.
148. Donations between man and wife, by the law of Scotland,
are not null; but they are revocable by the donor at any time
of his or her life. The object of this rule is to prevent the
spouses from despoiling themselves or their heirs from mutual
affection.
149. After the marriage is dissolved by divorce, there is no
impediment to grants by either party to the other, and such
donations would be irrevocable. But previous donations are
held to be revoked by the divorce of the donee for adultery.
150. If a deed between husband and wife do not contain the
recital of an onerous cause of granting, it is presumed to be a
donation. This presumption, however, may be redargued by
contrary proof, and its only effect is in fixing the burden of
proof upon the party against whom it bears.
151. The renunciation of the jus mariti without onerous cause
is a donation which the husband will be entitled to revoke.
152. A donation will be tacitly revoked by the donor doing
anything which is plainly inconsistent with its continuance in
the hands of the donee; but revocation will not be inferred
from a voluntary, or even a judicial separation, between the
spouses.
153. The predecease of the donee does not effect a revocation
of the gift, which passes to his heir; but no length of enjoyment
by a third party will, in the case of heritage, deprive the donor of
his right of revocation.
154. A general conveyance of property does not infer a tacit
revocation.
XL—Dissolution of Marriage.
156. Marriage is dissolved in two ways: by death and by
divorce.
1. Death.
156. Where the marriage is dissolved by the death of either
of the spouses, the other is at liberty to marry again immediately;
there being no "year of grief" imposed by the law of
Scotland, as there was by the law of Rome.
157. If the widow is pregnant, and the circumstances be such
as to give rise to a reasonable suspicion that a supposititious heir
is about to be palmed off as the issue of the deceased husband, it
is said that a medical examination will be ordered on application
to the Court of Session.1
158. The widow is entitled to aliment from the husband's
representatives till the first term of Martinnias or Whitsunday
after his death. The principle of this rule is, that the law holds
the husband's domestic establishment not to be broken up till
the term following his death, and the wife receives aliment on
what may be regarded as a fiction of his continued existence.
The widow's mournings are included in the provision to which
she is thus entitled, and being part of her husband's funeral expenses,
they form a preferable debt on his funds.2
159. The claim for aliment on the part of the widow does not
possess a preference over the claims of the husband's creditors,
and it is doubtful how far it can compete with them.
160. It will not be invalidated by the fact that the wife possesses
separate property of her own.
161. The surviving spouse is entitled to certain provisions
both from the heritable and moveable property of the predeceaser.

162. It is still the rule in Scotland, as regards heritable property,
that if the marriage be dissolved within year and day,
without the birth of a living child, it shall not be regarded
as a completed contract, and that the parties shall stand,
as regards their interests in each other's estates, on the same
footing in all respects as if no marriage had ever taken place.
We have already mentioned3 that, in so far as moveable property
is concerned, this rule has been altered by a recent
statute.
163. Terce is a liferent accruing to the widow in one-third of
1 Fraser, i., p. 1, 2. 2 Sheddan v. Gibson, May 15, 1802. 3 Ante, p. 21.
the heritage in which the husband died infeft. It corresponds
to the English dower, and, like it, is of "reverend antiquity."
As the statute referred to applies only to moveables, the widow's
right to terce will still be invalid if the marriage has been dissolved
within year and day without the birth of a living child.
If it has exceeded the year and day, the claim for terce arises
though there be no issue.
164. If a special provision has been granted to the wife, either
by ante-nuptial or post-nuptial settlement, or by any other deed,
the terce will be held to be tacitly excluded unless the deed contains
an express reservation of it.
165. Lesser terce is that which is due out of lands still burdened
with terce to the widow of a former proprietor. It is,
therefore, one-third of the remaining two-thirds. On the death of
the former tercer, it extends to a complete third of the whole lands.
166. The terce is diminished by all real burdens completed
by infeftment before the husband's death. The mansion-house
has also been excluded by custom from the terce.
167. Terce is due where the death of the husband is merely
civil, and it is due also if the marriage is dissolved by divorce
either for adultery or desertion by the husband.1
168. No terce is due from property held by burgage tenure
from a royal burgh, even although such lands should chance to
be situated in the country; nor from superiorities, mines and
minerals, or patronages.
169. Courtesy, or, the courtesy of Scotland, as it is called,
because it was said to be peculiar to this country, though it is
now traced to a continental origin, is a liferent corresponding to
the widow's terce, which accrues to the husband on the death of
the wife; but differing from terce in this, that it extends to the
whole of the heritable property in which she died infeft.
170. The right to courtesy does not emerge unless a living
1 Fraser, i., 605.
child has been born of the marriage, however long it may have
endured. This child must further be the mother's heir; so that,
if there be a child by a former marriage who is the mother's
heir, courtesy will not be due to the second husband. Should
this child die before he has made up his titles, and thereby vested
his mother's estate in his person, courtesy will be due to the
second husband, provided the second marriage has produced an
heir. It is thus rather as the father of an heir, than as the
widower of an heiress, that courtesy is due to the surviving
husband. But it is not necessary that the child should survive.
If it has once lived, and been heard to cry, that is sufficient to
confer the right.
171. If the child was born before the marriage of the parents,
but legitimated by their marriage subsequently, the husband will
be entitled to courtesy, though the wife die immediately after
marriage.
172. Courtesy extends to all heritage to which the wife succeeds,
whether as heir of line, tailzie, or provision, and whether
before the marriage or during its subsistence.
173. It does not extend to heritage acquired by purchase,
donation, or other singular title,—i. e., to what in Scotland is
called conquest.
174. Burgage property and feu-duties fall under courtesy,
though not under terce.
175. As the wife's representative; the husband, whilst possessed
of the Iiferent of her heritage, is liable for all annual
burdens affecting it, and also for the current interest of her personal
debts, at least in so far as he is enriched by the courtesy.
For such personal debts as he may thus pay he will have
recourse against the wife's executors, or her heirs succeeding to
property which does not fall under the courtesy.
176. Courtesy vests in the husband without service or any
other legal form.
177. The claim to courtesy is barred by an express discharge
by the husband; but, unlike terse, it is not tacitly excluded by a
conventional provision not declared to be in lieu of it.
178. Jus relictæ may be regarded either as the wife's share, or
as a claim on the moveable property of the spouses, emerging to
her on the death of the husband.
179. If there be children of the husband, either by his last or
by any former marriage, a tripartite division of the moveable
property of the spouses takes place: one-third falls to the children;
one-third, which is at the husband's disposal, and which,
failing his destination, goes to his children as executors, is called
"dead's part;" and the remaining third accrues to the widow as
jus relictæ.
180. Where there are no children, the moveable property is
divided into two equal parts, one of which is dead's part, and the
other jus relictæ.
181. The wife's claim to jus relictæ will not be taken away by
a conventional provision unless it be expressly renounced.
182. The husband cannot affect the jus relictæ by any testamentary
or other deed, although he may diminish its amount
indirectly during the marriage by his manner of administering
the joint property of the spouses.
183. Personal bonds bearing interest, though moveable in
other respects, are excluded from the jus relictæ'.1
184. The jus relictæ does not entitle the wife to compete with
the husband's creditors, or to rank on his bankrupt estate.
185. The jus relictæ not being regarded as a succession, vests
in the wife without confirmation, and pays no legacy duty.
186. Though the wife should have children by a former marriage,
the division will still be simply into two equal parts, they
having already shared in the estate of their own father. Where
1 Stat. 1651, c 32
the husband leaves children by a former marriage, on the other
hand, it becomes tripartite.
187. The claim to jus relictæ is not now invalidated by the
dissolution of the marriage within year and day.1
188. Where the wife shall predecease the husband, it is provided,
by the statute just referred to, that "the next of kin, executors,
or other representatives of such wife, whether testate or intestate,
shall have no right to any share of the goods in communion, nor
shall any legacy or bequest, or testamentary disposition thereof,
by such wife, affect or attach to the said goods or any portion
thereof." The wife's power of testing, and the claims of her
executors should she die intestate, are thus confined to her
separate estate.
189. Legitim, or the claim accruing to the children on the
moveable estate of the parents, will be considered under the
head of Parent and Child.
2. Divorce.
190. There are two grounds only on which the law of Scotland
will sanction the disruption of the matrimonial tie: adultery,
and malicious desertion.
191. In thus limiting its interference to cases of absolute
necessity, where it does little more than provide for the consequences
of a fact which is already accomplished, our law seems
to have struck a happy medium between the laxity which at one
time disgraced the Christian world, and the over-stringent provisions
of the Canon Law.
192. The Scottish law of divorce is moreover in accordance
with that which prevails in almost all the Protestant countries
of Europe, England excepted. "The conjugal relation," says
Mr Fraser, "has stood not less, but infinitely more secure and
sacred, since separations a mensa et thoro for adultery, which were
1 18 Vict., c. 23.
extremely common under the Popish jurisdiction, fell into total
disuse; and the number of actions for divorce a vincula has, in
proportion to that of the population, remained nearly the same
at all periods since the commissaries were first appointed in 1563,
down to the present time."1
Adultery.
193. Divorce for adultery was not introduced into Scotland
by statute; but immediately after the Reformation it was held
by the courts, as a consequence of that event, to be the common
law.
194. Divorce is equally competent in Scotland, whether the
crime of adultery has been committed by the husband or the wife.
195. It is not adultery if one spouse (say the wife) has been
constrained by force to have connection with another than her
husband; or if the intercourse has taken place by mistake, she
believing the person to be her husband.
196. Neither is it adultery if, acting on a belief in his death,
founded on false intelligence, or other reasonable grounds, she
have married another.
197. The action is competent only to the aggrieved spouse.
It is not competent to his or her heir or creditor, though they,
or any other parties interested in the defender of an action of
divorce, may competently state defences.
198. If the Scotch courts have jurisdiction over the defender,
divorce will be granted, though the adultery was committed
abroad, and though he be absent from the country at the time
of raising the action.
199. Divorce can be granted only by the Court of Session;
and residence for forty days in Scotland will render the defender
amenable to the jurisdiction of that court. It has been decided,
however, that such a domicile of jurisdiction, as it is called,
1 Domestic Relations, vol. i., p. 656.
acquired by the husband, does not change that of the wife to
Scotland; and, consequently, that she cannot be sued in an
action of divorce, unless she herself has been personally resident
in Scotland for forty days.
200. The pursuer must also have resided forty days, in
all cases in which he has no other connection with Scotland.1
It may be remarked, that actions of divorce which are
brought into the Scotch courts by foreigners, and apparently
for no other reason than to avoid the jurisdiction of the courts
of a country in which this remedy is less easily obtained, are
regarded by the judges with great suspicion. No case has
occurred in which there has not been a longer residence than
forty days on the part either of the pursuer or the defender; and
should such a case be presented to them, though it is difficult to
see on what principle they could dismiss it, there is no doubt
that the courts would deal with it very reluctantly.
201. In order to prevent spouses who have become tired
of each other's society from entering into a private compact to
obtain a decree of divorce, the pursuer is called upon to swear
that the action is not collusively raised.
202. The oath of calumny is to the effect, that the pursuer has
just cause to insist in the present action; that he believes the
defender to have been guilty of adultery; and that the facts
stated in the condescendence (which is read to him at the time)
are true; that there has been no .concert or collusion between
him and the defender in raising the action; nor does he know,
believe, or suspect that there has been any concert or agreement
between any other person and the defender, on his behalf.
203. It has not been found practicable to lay down any rule
as to what shall amount to collusion; and it is therefore to be
feared, notwithstanding the stringency of the oath, that a secret
understanding between the parties is not uncommon. It may be
1 Shields v. Shields, Dec. 1, 1852.
stated, on the one hand, that simple knowledge, on the part of
the pursuer, that the defender wished him to succeed in his action,
would not be collusion; whilst, on the other, an agreement that
the husband, say, should commit adultery, in order that the
divorce might be obtained, certainly would.
204. In proof of adultery, the first fact to be established is
marriage; for where there was no marriage there can be no
adultery.
205. Presumptive evidence of adultery is admitted as sufficient,
because that fact is one of all others which least admits of being
established directly; and unless it were competent to arrive at
it by a train of circumstances, no protection whatever could be
given to marital rights.
206. It is impossible to indicate universally what circumstances
will warrant this conclusion, because, as Lord Stowell
has remarked, "they may be infinitely diversified by the situation
and character of the parties, by the state of general manners,
and by many other incidental circumstances, apparently slight
and delicate in themselves, but which may have most important
bearings on the particular case. The only general rule that can
be laid down is, that the circumstances must be such as would
lead the guarded discretion of a reasonable and just man to
the conclusion."
207. Divorce will not be granted where the injured party has
connived at the crime of adultery. This plea has never been
put forward in bar of an action of divorce, except by the wife.
It arises where the husband becomes the instrument of his own
dishonour, by conniving at his wife's adultery, or inciting her,
directly or indirectly, to the commission of the crime.
208. Again, if the party injured has been reconciled to the offender,
he is held to have passed from his right to rescind the
marriage contract, and his right to divorce is barred.
209. The most pregnant circumstance in proving remission is
always the voluntary continuance of matrimonial intercourse
after the knowledge of the adultery.
210. Recrimination is no bar to divorce in Scotland, though
mutual guilt may affect the patrimonial consequences of the dissolution
of the marriage.
211. Long delay may raise a presumption that remission of the
injury has taken place; but it is not in itself a bar to an action
of divorce.
212. Desertion, cruelty, the neglect of conjugal duties, or the
denial of conjugal rights on the part of one spouse, will not
justify adultery in the other, or bar the action of divorce.
Malicious Desertion.
213. Apostolic sanction has been claimed for divorce on the
ground of desertion.1 As now recognised in this country, it is
grounded on a statute,2 in which it is spoken of as resulting from
the doctrines of the Reformation. It is recognised in all the Protestant
countries of Europe except England, in America, and
in those of our colonies in which the law has not been derived
from that of England.
214. The first step towards obtaining a divorce, on the ground
of desertion, is to raise an action of adherence, which may be
brought either before the Sheriff or the Court of Session. Where
this action is pursued by the wife, it may be accompanied with
a claim for aliment. The pursuer having proved both the marriage
and the desertion, decree of adherence will be granted;
the church (i.e., the presbytery, as coming in place of the bishop)
is then called upon to admonish, and if necessary to excommunicate,
the offender—a duty which it now invariably declined
If these warnings be disregarded, an action of divorce, reciting
the procedure in the action of adherence and before the presbytery,
may then be pursued in the Court of Session.
1 1 Cor. vii. 10, 11. 2 1573, c. 55.
215. The action of adherence may be raised, and sentence
pronounced in it after one year's desertion; but four years must
intervene between the first desertion and the divorce.
216. Even where no appearance is made for the defender, the
oath of calumny1 must be emitted by the pursuer, after which the
action will be held to be sufficiently supported by production of
the documents by which the proceedings in the previous action of
adherence are proved.
217. The oath of calumny must also be taken where the
defender appears; but he is not entitled, at this stage of
the proceedings, to bar the decree of divorce by offering to
adhere.
218. Desertion must be malicious; and in the case of a defender
who remains abroad, it will be necessary to prove that he
does so with a deliberate purpose of abandoning his conjugal
duties, and that he is not detained by the exigencies of the
public service, or of his own private affairs.
219. It was long doubted whether malice could be presumed, to
the effect of allowing an action of divorce to proceed, without
personal service and intimation to the defender. The point was
rendered of much practical importance by the fact that the residence
of the defender, in such cases, is very frequently unknown;
and had such intimation been required, the injured party
(usually the wife) would have been deprived of her legal remedy.
It has now been held that an action of divorce, on the ground
of desertion, may competently proceed on edictal citation;2 i.e.,
on such intimation as would suffice in an ordinary action against
a person abroad. The action of adherence on which the divorce
proceeded was held by the Lord Ordinary, in the same case, to be
competent on a similar citation; but the point did not receive the
more deliberate decision of the Court.
1 Supra, p. 36.
2 Smith v. Smith, Feb. 11, 1854,
220. It had long ago been decided that such citation was sufficient
where the ground alleged was adultery.1
221. Where the husband has acquired a foreign domicile, it is
incompetent for him to sue for a divorce in Scotland2 onthe ground
of adultery committed abroad. If the adultery has been committed
in Scotland the reverse will be the case.3
222. Any ground which would have justified a demand for
judicial separation, will be a good defence against an action of
adherence; e.g., cruelty on the part of the pursuer, that he committed
adultery, and the like.4
223. It would be a valid defence against an action of adherence
or of divorce on the ground of desertion, in which the
wife was pursuer, that the husband had required her to accompany
him abroad, and she had refused; because she is bound
to follow him throughout the world.
224. After the four years have expired, and all the preliminary
proceedings have been gone through, the pursuer is entitled
to decree of divorce, and cannot be barred from obtaining
it by the defender then offering to adhere.
XII.—Effects of Divorce.
225. Divorce being a complete disruption of the marriage tie,
both parties are at liberty to marry again. To this rule there is
one exception—the offending spouse and the paramour are not
permitted to marry.
226. Where divorce has followed on the ground of desertion,
it has been determined by the statute (1573, c. 55), as interpreted
by Lord Stair, that "the party injurer loseth all benefit accru1
Buchanan v. Downie, Nov. 18, 1857.
2 Bennie v. Bennie, June 30, 18-49.
3 Shields v. Shields, Dec. 1, 1852:
4 Vide supra., p. 25:
ing through the marriage; but the party injured hath the same
benefit as by the other's natural death."1
227. If the husband is the guilty party, he is thus obliged not
only to restore the tocher (dos), but he forfeits such conventional
provisions as may have been made by the marriage contract2 in
his favour, together with his rights of courtesy and jus mariti.
Should the wife, on the other hand, be guilty, she has no claim
for the restitution of the tocher, nor for terce or jus relictce, nor
for any conventional provision in her favour by marriage contract.

228. The innocent party in either case continues to be entitled
to the legal provisions. The wife may claim her terce arid jus
relictce, unless they are excluded by her contract of marriage, and
the husband's right to courtesy emerges just as if she were
dead.
229. Death before decree of divorce bars these consequences.

230. Divorce for adultery not having been introduced by legislative
enactment, like divorce for desertion, but having its origin
in the common law, its effects on the patrimonial interests of the
parties can only be ascertained from the decisions of the Court.
These have established the same general rule as that received in
the case of divorce for desertion.
231. To this there would appear to be one exception.3 The
tocher, which must be restored by the husband who has deserted
his wife, may be retained by him who has committed adultery.
The grounds of this distinction are not apparent.
232. Donations by the innocent to the guilty spouse are revoked
by divorce; those by the guilty to the innocent become
irrevocable.
1 Stair i. 4, 20. 2Vide infra, p. 42.
3 Fraser's Domestic Relations, vi., p. 691; and authorities cited.
XIII.—Declarator of Nullity of Marriage.
233. A marriage, however celebrated, may be declared by the
Court of Session to have been no marriage at all, if it be proved
that any of the impediments to marriage above enumerated1 existed at the time when it was attempted to be contracted.
234. Unlike actions of divorce, actions of nullity of marriage,
on any other ground than impotency, may be instituted, not only
by either of the parties to the alleged contract, but by any one
having a patrimonial interest in setting it aside.
235. Along with the conclusion for nullity, a conclusion for
damages is sometimes inserted against the party, who, knowing
of the impediment to the marriage, yet entrapped the other into
the connection. Damages in such a case are generally high, on
account of the peculiar aggravation of the wrong.
XIV.—Consistorial Actions.
236. Consistorial actions,—i.e., declarators of marriage, nullity
of marriage, declarators of legitimacy and bastardy, actions of
divorce and separation,—must now be brought before the Court
of Session. Actions of adherence are competent either before
the Sheriff Court or Court of Session.
237. No decree can be pronounced in any of these actions in
absence of the defender, until the grounds of action have been
substantiated by sufficient evidence.3 The reason of this rule is
the extreme importance to society of the true status of its members
being positively ascertained.
XV.—Marriage Contracts.
238. having considered the rights and obligations of married
parties which spring from the common or the statute law, it is
1Ante, p. 9. 2 11 Geo. IV , and 1 Will. IV., c. 69, sec. 36.
proper to treat of the class of deeds by which these provisions
may be altered to suit the views of the parties, or the circumstances
of the particular case.
239. The various rights which may require to be adjusted,
and the many contingencies against which provision may have to
be made, render the subject one of great intricacy, which can
here be treated only in the most general manner.
240. It is competent for the parties to a marriage to make
any conditions with each other which are not inconsistent with
the conjugal relation, or in violation of morality or of public
law.
241. Marriage contracts differ very essentially according to
whether they are entered into before or after marriage.
242. in ante-nuptial contracts, the stipulations are conditions
of the marriage; hence they are onerous;—effectual not only
against the parties themselves, but against creditors.
243. By post-nuptial contracts, again, no alterations to the prejudice
of creditors, and in favour of the wife and children, can be
made, because the interests of the latter have already been identified
with those of the husband and father. Even the right to
their legal share of their father's property, which arises to the
children by the unconditional marriage of their parents, is independent
of such contracts.
244. Two highly inconvenient provisions of the common law,
by which some species of conventional arrangement was rendered
almost a matter of necessity, have been removed by the recent.
Moveable Succession Act, to which we have already referred.1
It is now no longer necessary to stipulate that, where the wife
shall predecease her husband, her representatives shall not be entitled
to carry off a share of the goods in communion, even in the
case in which these goods belonged originally to the husband,2
nor that a marriage dissolved within year and day shall have
1 Ante, p. 21. 2 18 Vict., c. 23, sec. 6.
the same patrimonial effects as if it had subsisted for a longer
period.1
245. The main object of a marriage contract is to provide
against the consequences of the misfortune or imprudence of the
husband, by setting apart a separate estate or fund for the wife.
This may be done either with the rents of heritable property, or
with moveables; and the arrangement may proceed either from a
third party conveying to the wife, under the provision that the
husband's interest shall be excluded, or it may be made before
marriage by the wife herself with her own funds, or by the husband
with his funds.
246. All such conventional arrangements, however, must be
made expressly; and unless the jus relictæ is excluded in words,
the wife will continue to be entitled to it, notwithstanding any
stipulations that may have been made in her favour. Even after
marriage, if the husband be solvent at the time, he may set apart
a separate fund for his wife.
247. Provision may also be made for children in this manner;
and if made payable during the father's life, the children will be
effectually secured in a preference, or, at least, entitled to rank
as creditors for the amount. These provisions must be reasonable
in the circumstances of the parties.
248. It is not unusual, where there is heritable property, to
appropriate certain lands to the wife in life-rent, along with a
jointure-house, and these provisions, if accepted by her, will be
held to come in lieu of terse; but no express provision made for
the husband will exclude the courtesy unless it be specially renounced.

249. In place of having certain specific lands set apart to her,
the wife is very commonly secured in an annuity by infeftment.
This provision is called a jointure.
250. Another very usual provision in marriage contracts is,
1 Ibid., sec. 7.
that certain lands shall be held by the husband and wife in conjunct
fee and liferent. If the alternate destination be to the heirs
of their body, or their heirs simply, the husband is in general the
sole fiar. In this case his heirs succeed, and the right may be
attached by his creditors, but subject in either case to the wife's
liferent. The construction of such clauses, which ought to be
framed with the greatest care, will often be affected by the fact
of the property having come from the wife originally, and its
having come in the form of tocher or otherwise, and by various
other considerations.
251. It is by marriage contracts, also, that conjunct rights in
parents and children are usually constituted. The general rule
in these cases is, that where the right is taken to the father in
liferent, and to the children that may be born of the marriage in
fee, the father is flay, the children having merely a right of succession,
which is defensible by the father's creditors. But if the
right be to the father "for his liferent use allenarly," and to
his children, even though the contract be ante-nuptial and the
children unborn, the father's right will be limited to a fiduciary
fee for the children's behoof, and will not be affected by the
father's debts.
252. Where the destination is to "husband and wife in conjunct
fee and liferent, and children in fee," the meaning is, that
the spouses shall each have a joint liferent and a possible fee while
they both live, it being uncertain which will survive.
253. Post-nuptial contracts are not effectual against creditors,
and are revocable by either of the parties.
254. When insolvency does not follow, a post-nuptial contract
will settle the rights of the parties effectually, provided the arrangements
made by it are reasonably given. When insolvency
does follow, such a contract will be sustained to a reasonable extent
against the husband's creditors, provided it was made during
solvency.
CHAPTER II.
OF PARENT AND CHILD.
I. —Legitimacy.
255. Legitimacy is the personal status which results from
birth in lawful wedlock.
256. But though this is the usual, it is not the exclusive
ground, on which legitimacy is secured. From views of expediency,
public policy, and humanity, all the legal privileges, of
the status, are extended to certain cases where no marriage was
entered into.
257. The case of a posthumous child can scarcely be regarded
as an exception to the general rule; for he, at all events, was
conceived in wedlock.
258. If a child is born beyond ten months after the marriage
is dissolved, he will scarcely be legitimate. Neither will the rule.
that "he is the father whom the marriage points out," necessarily
decide the case in which a child is born within six months
after the marriage is contracted, though it will lay the onus of
proof on the party who impugns the legitimacy. But unless the
paternity is disproved or impossible, the child, as in the case of
bastards, will be legitimated by the subsequent marriage of his
presumed parents.
259. The presumption in favour of legitimacy which is raised
by the marriage, will be invalidated by proof of physical impossibility,
whether grounded on the impotency or the absence of
the reputed father. Very strong evidence to the effect that no
sexual intercourse took place between the husband and wife, will
have the same effect, even where it does not amount to proof
of impossibility.
260. The period of possible gestation, though of extreme importance
both in questions as to legitimacy and as to the paternity
of bastard children, is so much disputed amongst medical men,
that the courts have been unable to determine it with any degree
of accuracy. It is generally admitted that the ordinary period
is ten lunar months, or 280 days; and the presumption will tend
to become adverse to the alleged legitimacy or paternity, in proportion
to the extent to which the period assigned for the gestation
falls short of or exceeds this period.
261. A putative marriage is one in which both or either of the
parties, believing that they could marry, entered into the contract,
while there was an unknown impediment arising from relationship,
previous marriage, or the like, which prevented a valid
marriage. In this case the children would probably be held to
be legitimate, though the marriage itself is null.1
262. All children conceived after the impediment has come to
the knowledge of both parties will be illegitimate.
263. It is the opinion of some that a child born of a woman
from a rape perpetrated on her would be legitimate, but there
is no authority on the point, in the law of Scotland.
264. Bastards may be legitimated in two ways: 1st, By the
subsequent marriage of their parents; and 2d, by letters of legitimation
from the Crown.
265. Legitimation by subsequent marriage, which is not admitted
in England, was borrowed from the later Roman practice, into
which it was introduced by the Christian emperors from considerations
of morality and expediency. It certainly tends to
encourage the conversion of a relation which was injurious into
one which is beneficial to society; and it has the further advantage
of preventing those unseemly disorders which must arise in
families where the elder born children of the same parents are
left under the stain of bastardy, whilst the younger enjoy the
status of legitimacy.2
1 See Fraser's Domestic Relations, vol. ii., p. 8 2 Ibid., p. 15.
266. A curious and significant ceremony, common to the greater
part of Europe, was till recently in use in this country in cases of
legitimation by subsequent marriage. During the celebration
of the marriage the children were placed under their mother's
cloak, from which they emerged legitimated at its conclusion.
267. Legitimation by subsequent marriage confers all the
legal rights attaching to legitimate birth, and enables the child
to take under a destination to lawful children.
268. Legitimation by letters from the Sovereign, in imitation of the
power exercised first by the Roman emperors, and subsequently
by the popes, though not unknown to the law of Scotland, is
very limited in its effects. It will not entitle the bastard to succeed
to a relative dying intestate; but it confers on those who
would have been his heirs-at-law, had he been legitimate, the
right to succeed him, which, failing lawful children, would have
fallen to the sovereign himself. In granting legitimation to this
extent, the sovereign thus only resigns his own right, without
interfering with the rights of third parties.
269. Formerly bastards could not test; and the letters of
legitimation consequently contained a clause conferring this
power upon them. The statute 6 Will. IV., cap. 22, removed
this inability.
270. Many international questions of great nicety, into which
we cannot here enter, have arisen out of our recognition of legitimation
by subsequent marriage, and its rejection by our English
neighbours, and by those states in America that have followed
the English law.
271. The regulating fact is the domicile of the father; but
whether his domicile at the period of the marriage or of the birth
of the child is to prevail, supposing them to conflict, is still an
undecided point.
272. In the case of real property, the law of the country in
which it is situated prevails. Thus it has been held, that a child
legitimated per subsequens matrimonium in Scotland, cannot succeed
to lands in England.1
IL—The Paternal Power.
273. The power of the father over the child is recognised to a
greater or less extent by all systems of jurisprudence, and is
generally greatest in the rudest conditions of society. Authorities
differ as to the period at which, by the law of Scotland,
the child passes entirely beyond the control of the father. In so
far as the person is concerned, his power of constraint probably
ceases at the legal age of puberty, both in males and females.2
274. The father is entitled to the custody of the child, and may
remove it from place to place, and from one country to another.
He can recover its person from any one who detains it, and after
infancy at all events, even from the mother.
275. The father has the power of inflicting moderate chastisement;
and he may lawfully compel the child, when able to do so,
to labour for the subsistence of the family.
276. The powers of the father do not terminate with divorce,
probably not even where he is the guilty party.3
277. In the case of a daughter, the father's power, both as
regards person and property, terminates with marriage, as she
thereby passes under the authority of her husband.
278. The power of the father may be controlled by the Court
of Session, as the supreme court of equity in this country; but
a strong case will require to be made out that it is vicious and
immoral, or cruel and oppressive.
279. Refusal to aliment or educate his children might amount
to such a dereliction of paternal duty as to be regarded by the
Court as involving a forfeiture of paternal power. The case of
1 Birtwhistle v. Vardill, 2 Clark and Finn. 571; and 7 Clark and Finn. 895.
2 Fraser, vol. ii., p. 27. 3 Borthwick, Dec. 20. 1845.
D
a father in this respect, however, differs essentially from that of
tutors, where the Court will compel them to educate the pupil
in a manner suitable to the rank, status, and property he will
enjoy on arriving at manhood. Of the proper amount of education
beyond what may be necessary to enable the child to obtain
a subsistence, the father is the absolute judge; and it is doubtful
if he can be compelled to apprentice his child to a trade, or
make him acquainted with any kind of skilled labour.
280. None of the powers of the father belong to the mother
in the case of legitimate children; but she will be preferred to
the custody of illegitimate children under seven years of age.
III.—Duty of the Father to Aliment the Child.
281. So decidedly do the laws of this country recognise the
obligation which nature has laid on the father to aliment the
family which he has gathered around him, that refusal to comply
with it, either as regards wife or child, is punishable by fine and
imprisonment as a crime, under the Poor Law statute 8 and 9
Vict., c. 83, sec. 80.
282. But when the period of childhood is past, the obligation
which lay on the father is held to be transferred to the children;
and thus, if an indigent person has both a father and a son alive,
the burden of his maintenance will fall, in the first instance, on
the son.
283. In the event of the descendants of a party being unable to
aliment him, the obligation falls on the father, as the nearest
ascendant, then on the mother, and after her on the paternal
ascendants in the order of their proximity. When the paternal
ascendants are exhausted, it would seem that a claim exists
against maternal ascendants.
284. Collaterals are not bound to aliment each other; the
only apparent exception being that of an elder brother who has
succeeded to his father's estate. In this case, however, it is not
as the brother, but as the father's representative, that he is
bound to fulfil the obligation which lay upon him of providing
for the subsistence of the younger members of his family.
285. The amount of aliment which the law will enforce is
merely "support beyond want, and all beyond that is left to
parental affection."1
28G. The only case in which a separate aliment will be decreed to
the child, is where the parent offering to receive him into family
has formerly maltreated him, or where his person or morals are
in danger.
287. The rule is different where a descendant offers to take
an ascendant—.e. g., a grandfather—into family; and the Court
will not enforce such an arrangement.
288. A father, being bound to aliment his child, is held to have
given authority to the latter to contract for necessaries, and
thus to found an action against him to that extent, where he has
not otherwise fulfilled the parental obligation.
289. The father is not liable for the child's crimes, or even for
his quasi delicts. He is not bound to pay a fine imposed upon
him, nor would he be liable for damages should the child break
his neighbour's windows, demolish his trees, or slander him,
unless he were himself directly connected with the wrong done.2
290. If the child be working at a trade or profession, by
which he is able to earn as much as will support him, he cannot
demand aliment from his father.
291. In the higher ranks, where children are educated to
liberal professions in which employment is precarious, the mere
name of a profession, such as advocate, or doctor of medicine,
without business, is not enough. The principle on which the
1 House of Lords, in Maule v. Maule, June 1, 1825.
22 Haddam v. Stainhouse, 1 Br. Supp. 237. See also, by way of illustration,
Fleeming v. Orr, H. of Lords, 3d April 1855.
Court in this case hold the father liable in aliment is, that by
training his child to such a profession he tacitly becomes bound
to maintain him till he receives employment.1
292. When the child has been trained to no profession or
trade, the obligation of the father subsists after majority; but
only so long as is necessary to enable the child to acquire a trade.
293. If a child has a separate fortune of his own, it is thought
that the parents are not bound to maintain him, and may claim
board if they do so.
294. Daughters in the higher ranks must be alimented till
marriage; in the lower, till they are of age to go to service.
295. The obligation to aliment a married daughter lies on her
husband, even where she continues to reside in family with her
father; and if he is unable to implement his obligation, it falls
on his father before her father.2
296. The obligation to aliment is not affected by any amount
of extravagance or improvidence on the part either of parents or
children, and it cannot be removed by compact between them.
297. The heir is bound to aliment both sons and daughters
till their provisions become due.
298. The duties of reverence and obedience have no "civil
remeids;"3 but it is declared by the statute 1661, c. 20, that where
a child above the age of sixteen, and not being distracted by
harsh or cruel treatment, shall beat or curse a parent, he shall be
punished with death. The pains of law are usually restricted to
transportation. In less serious cases such offences are tried at
common law in the police courts, the relationship of the parties
being regarded as an aggravation.
299. Bastards have no father in the eye of the law; but this
doctrine is not allowed to apply to questions of aliment. The
law of Scotland holds both the father and mother liable to ali1
Ayton v Colvil, M. 390; Mauls v. Maule, ut supra.
2 Dunlop's Poor Law, p. 38. See infra "Poor." 3 Stair, i. 58.
ment, and the question is generally raised by an action at the
mother's instance against the father.
300. Failing the father and mother, the burden of supporting a
bastard falls on the parish where the mother has acquired a
settlement.1
301. If a stranger should aliment the child, he has an action
of relief against the father, mother, and kirk-session.
302. The right to arrears of aliment is not cut off by the
triennial prescription.
303. In the case of bastards, as of legitimate children, the rank
or fortune of the parents will scarcely be taken into account in
fixing the amount; "support beyond want" being all that can
be legally vindicated.
304. Aliment, as a general rule, will be due till the child is
able to earn a subsistence; and it will be claimable during life
if it be physically or mentally incapable of supporting itself.
305. The mother of a bastard child is entitled to claim from
its father a sum for inlying charges; and in peculiar cases the
Court have allowed a claim against the father for medical attendance
and school fees to the child; thus, in truth, imposing on
the fathers of illegitimate children the peculiar obligations incumbent
on the fathers of lawful offspring.
306. The custody of bastards belongs to the mother, and her
claim for aliment will not be barred by an offer on the father's
part to take the child into his own keeping. The father may
claim the custody of the child, however, even at an early age, if
his object be to teach it a trade, and thus put it in a position for
acquiring a subsistence.
307. In general, when the child is in infancy, the Court will
leave it with the mother, however mean her rank, or however
great its prospects or its fortune. But when the father is dead,
and the child has passed the age of seven, if it has succeeded to
1 Infra. see "Poor."
extensive means, it will be taken from the mother and delivered
to trustees, to be educated in a manner befitting its future
position.
308. The protection and guardianship of infants belongs to
the Court of Session, as the supreme court of equity.
309. In actions of aliment, a lower degree of evidence was,
by the former practice, held to establish the fact of paternity than
would have been necessary to prove a fact in another action.
This evidence was supplemented by the oath of the pursuer.
310. As to the amount of evidence requisite to admit the oath
in supplement, it was said by Lord President Blair to be such
"as induces a reasonable belief, though not complete evidence;"
and this opinion has been affirmed by the Court, with the observation
that "it has been oftener quoted, and been the foundation
of more judicial decisions, than any other opinion that ever
was delivered." Wherever the oath emitted in supplement was
at variance with special facts already established by proof, the
defender was assoilzied, though the general question was answered
in the affirmative. It was, in short, nothing more than
the evidence of the pursuer, which, since the recent change of the
law of evidence, is competent in all actions.
311. It is now held that in actions of filiation and aliment,
the testimony of the mother of an illegitimate child, given by her
in the position of a witness, is liable to be tested by cross-examination,
and its credibility weighed by the rules which apply to the
testimony of other witnesses;1 and an opinion has been expressed
to the effect that the oath in supplement is no longer competent.
312. Children are the natural heirs of their parents, and entitled
to succeed to their whole property, both heritable and
moveable, where they die intestate. As regards heritage, this
right may be wholly defeated by the parent by means of a conveyance
in favour of a stranger, executed whilst in vigour, though
1 Scott v. Chalmers, Dec. 2, 1856.
intended to take effect only after death. There are certain rights
which the child possesses over his moveable property, on the other
hand, of which he cannot be deprived by any deed of the parent,
whether inter vivos or mortis causa.1
CHAPTER III.
GUARDIANSHIP.
313. Guardianship is divided by the law of Scotland into
Tutory and Curatory.
314. The object of tutory is the protection of those in whom,
from nonage, the law recognises no power to contract, to alienate,
or to perform any other act inferring an obligation, to the constititution
of which a consenting mind is requisite.2The tutor thus
stands in the pupil's place, and acts for him as he himself ought
to do were he of perfect age.
315. The object of curatory is to afford assistance in the
management of their affairs to those who, though past pupilarity,
have not attained majority, and to those, of whatever age, who
from infirmity of understanding are incapable of dealing on
equal terms with persons of entire capacity.
316. The tutor thus grants the pupil's deeds for him, whilst
the curator consents to those of the minor.
317. Pupilarity, the period of life to which tutory applies, extends
to fourteen in males, and twelve in females. Minority, to
which curatory applies, extends from the termination of pupilarity
to the age of twenty-one, in both sexes. Majority, during which
a sane man is subject to no guardianship, is the whole life after
twenty-one.
1 Infra v. Legitim, Succession in Moveables.
2 Infans, et qui infantiæ proximus est, non multum a furioso
distant.—.Inst.,L. iii. t. xx., sec. 9.
318. By the Roman law, an approach to majority was held to
modify the character of minority, and so of the other periods, but
no such distinction is recognised by our law; and a youth who
wants but a day of twenty-one will be as much incapacitated
as if he were fifteen.
I.—Tutory.
319. In all cases in which pupils appear as actors, they must
act by their tutors, but the reverse is the case where they are
merely passive. Deeds granted by the pupil thus proceed from
the tutor directly, and make no mention of the pupil's consent;
whereas those granted to the pupil are taken to him directly,
and make no mention of the tutor's consent.
320. We have borrowed from the Roman law one exception to
the rule, that deeds granted or contracts entered into by a pupil
are null, viz., where they are beneficial to himself. The principle
of this rule is, that in order to deter those who might impose on
the weakness of pupils, the law favours them by granting to
them the power of making their condition better, whilst it prevents
them from making it worse.
321. When a pupil sues, the proper mode is for the tutor to
raise the action in his tutorial capacity, and to conclude for payment
to himself.
322. A pupil will be entitled to institute an action himself, if
his tutor be the defender or have an adverse interest. In this
case a tutor ad litem will be appointed to the pupil when the
case comes into Court. The opposite party is entitled to ask
for the appointment of a legal guardian to the pupil, as otherwise
decree, thought obtained against him, would not be effectual.
323. An unborn child has many legal rights, and a tutor may
consequently be appointed to him for their protection.
324. The father is both tutor and curator to his children,
under the name of administrator-in-law. He requires no judicial
proceeding to invest him with these offices, even where the child
has separate property, and it is thought that he is not incapacitated
by the fact of his being himself a minor.1
325. Neither paternal nor maternal grandfathers can exercise
either office without special appointment.
326. The father of a bastard is not his administrator-in-law;
but a father who is himself a bastard is so to his own lawful
children.
327. If property be gifted to a child by a third party, and
tutors appointed by the donor to manage it, they will be entitled
to do so to the exclusion of the father. Their powers, however,
are confined exclusively to the management of that fund.
328. Religious opinions now form no ground of disqualification
for the office of tutor, unless they involve practices which are
grossly immoral. An outlaw cannot be a tutor or curator.
Aliens cannot be appointed, but the law recognises their paternal
authority.
329. Testamentary tutors, or tutors "testamentar," as they are
called in Scotland, can be nominated by the father alone. Neither
the mother, the grandfather, nor any other ascendant, have this
power, even after the father's death. If appointments be made
by these persons they may be reduced, as in fraud and prejudice
of the tutor-at-law, and failing him of the Crown.
330. Testamentary tutors may be either male or female,
provided the latter be not married. They must be twenty-one
years of age.
331. A father cannot nominate tutors to his bastard children;
but he may leave property to them under the condition that it
shall be managed by a party appointed, and that the children's
custody and education shall be as he may direct. The manager
so appointed is not a tutor, but a factor or trustee.
1 Fraser, ii. 71; Bruce, xliii. 4.
332. Tutors are generally appointed in the last will and testament
of the father, but the nomination will be effectual by any
deed or writing which sufficiently indicates his will.
333. Though the word "governors" be used for "tutors" the
effect will he the same.
334. Several tutors may be appointed, and in this case a certain
number is usually specified to be a quorum.
335. The father being presumed to have satisfied himself of
the personal honour and the sufficiency of the fortunes of those
whom he selects as tutors to his children, they require no service
or other judicial proceeding prior to entrance on the office.
336. They are not obliged to take the oath de fideli, or to find
caution, unless when insolvent, or where clamant suspicions of
their honesty exist. In these cases the Court of Session, on application
by any relative of the pupil, will ordain them to find
security.
337. No dispensation from the father even can free them from
the duty of making up tutorial inventories.
338. At common law, tutors are liable for omissions as well
as intromissions; but this "having frightened many from accepting
the office, and thereby several pupils being left destitute,"
it was enacted by the stat. 1696, c. 8, that the father might
nominate tutors with the qualification,"that they shall not be
liable for omissions, but only for their actual intromissions with
the means and estate descending from the father, and that each
of them shall only be liable for himself, and not in solidum for
others." This is now the invariable practice.
339. A factor may be appointed by the father, along with the
tutors, to act under their direction; and when so appointed, he
cannot be removed by them without just cause.
340. A tutor-at-law is so named because he takes the office
by the disposition of the law itself, in case testamentary tutors
have either not been appointed, have declined to accept,
failed after acceptance, or become incapacitated to accept or
to act.
341. The tutor-at-law is the nearest male agnate to the pupil,
—i.e., his nearest kinsman by the father's side. No female can
be a tutor-at-law.
342. A bastard can have no tutor-at-law, because he has in
law no father, and, consequently, no relative on the father's side.
343. A tutor-at-law must be twenty-five years of age, the
period of majority by the Roman law1
344. The tutor-at-law must be formally vested in the office by
a service, or legal proceeding in which the grounds of his claim
are proved to the satisfaction of a jury of fifteen men.
345. This proceeding may be brought under review of the
Supreme Court.
346. A tutor dative is appointed where there are neither tutors
testamentar nor tutors-at-law.
347. Guardians of this class have always been nominated by the
Crown, latterly through the medium of the Court of Exchequer,
now the Court of Session.
348. The Court usually prefer to appoint those to whom the
father or other relatives have shown a predilection. Such are
testamentary tutors whose nomination has fallen by the failure of
a quorum or a sine quo non.
349. The law of Scotland differs from the law of Rome, in
placing it entirely within the option of the tutor to accept or
decline the office. If he has accepted it, however, he cannot renounce
it without the authority of the Court, and the statement
of a sufficient excuse.
350. Tutors-at-law and tutors dative must find caution for
their intromissions.
351. Tutorial inventories are appointed to be made by the
1 Stat. 1474, c. 51.
statute 1672, c. 2, the chief provisions of which were borrowed
from the Roman law.
352. The two next of kin of the pupil, both on the father's and
mother's side, must be made parties to the transaction, and the
inventory must be subscribed by them, and by the tutors or
curators.
353. When the nearest of kin refuse to appear or to concur, the
inventory will be made up at the sight of the Judge Ordinary
(Sheriff) of the bounds, or of a delegate appointed by him.
354. The inventory so made up will be as effectual as if the
nearest of kin had appeared and concurred.
355. The inventory must contain a description of the whole
heritable and moveable estate of the pupils.
356. An inventory must be prepared in every case, even where
the pupil has but one possession.
357. Tutors testamentar, equally with tutors-at-law and tutors
dative, are bound to make up inventories.
358. Fathers alone are not bound to do so.
359. The debtors of the pupil are not bound to pay to the
tutors, unless they can show that the sums demanded are contained
in the inventories, or eiks (additions), made up in terms
of law.
360. The custody of the child belongs to the father during life
as its natural guardian; and should he have nominated any one
to take charge of it after his death, this nominee will be preferred
even to the mother, unless the child be in infancy.
361. Failing the father's appointment, the mother is entitled
to the custody.
362. As a general rule, she will lose the custody if she enter
into a second marriage; and the pupil will be delivered to the
tutor or next cognate.
363. The person of the pupil will not be entrusted to a tutor
who is his heir, because his interests are adverse to the pupil's
life. Such an arrangement has been described as "Agnum lupo
committere ad devorandum." The tutor will be debarred even
though he be heir only in part of the pupil's estate. It is for
this reason that, failing the mother, the nearest cognate, or relative
on the mother's side, is chosen. But if he be a man of loose
and dissolute habits, if he has shown personal enmity to the pupil,
or if there be any other objection which seems to them sufficient,
the Court will not entrust him with the custody.
364. It belongs to the Court of Session, as the supreme court
of equity, to regulate the custody of pupils; though an application
to a Sheriff for that purpose does not seem to be incompetent.1
In the case of the custody of illegitimate children, applications
to the Sheriff are of common occurrence.
365. The education of the pupil is properly entrusted to the
tutors; and while the Court will, as much as is consistent with his
advantage, give the custody of his person to the mother, they
have often interfered at the instance of the tutors, and directed
that the child be placed at their disposal, in order to its proper
education.
366. They have held the tutor, though not entitled to the custody,
entitled to direct the education and to superintend it. In
several cases they have constituted themselves judges of the conflicting
statements of parties, and decided for the mother or the
tutor, according as they preferred the mode of education that
either proposed.
367. Where the father has chalked out a course of education
for the child, his injunctions will be obeyed, unless they are immoral
or irreligious.
368. The tutor is not entitled, in his management of the pupil's
affairs, to alter the succession to his property, as, for example, to
change a bond destined to executors into a bond secluding them.
This rule applies even to the father acting as administrator-at-law.
1 Lang v. Lang, S. and D., June 30, 1849. See also Jurist, p. 485.
369. It often happens, in the management of the pupil's property,
that its nature of heritable and moveable is altered, without
any intention on the part of the tutor of affecting the succession.
370. It is generally agreed that the tutor's acts do not change
the succession, though the nature of the subject be altered from
heritable to moveable, or the reverse. In all cases, on the contrary,
where the result happens by the operation of a public law,
or the diligence of creditors, or any other cause over which the
tutor has no control, the succession will be regulated by the legal
character of the property in the state in which these changes
have left it.1
371. The tutor is not at liberty to speculate with the funds of
his pupil, however tempting the venture may be, or however
insignificant the apparent risk.
372. If the father was a merchant or manufacturer, having
large works which cannot be immediately disposed of, the tutor
is entitled to exercise his own discretion as to the best mode of
securing the property of his pupil from risk, keeping in view the
rule, that his first duty is to preserve it, not to increase it.
373. A factor may be appointed by the tutor to assist him in
managing the affairs of his ward. Unless in cases of misfortune,
which could not have been anticipated, the tutor will be liable
for the transactions of the factor.
374. The salary of the factor must be moderate, as the tutor
will not be allowed to take credit for the excess in accounting
with the pupil.
375. If a tutor is himself factor, the Court will not allow him
a salary unless there be a clause in the deed by which the tutor
or tutors were appointed, authorising them to appoint one of
themselves to the office.
376. The tutor cannot lend to his pupil or borrow from him,
even on heritable security, nor can he do any deed by which either
1 Fraser, ii. 129; Bell's Corn., ii. 847.
he himself or his own relatives may be benefited. These rules,
however, will be understood in a reasonable sense.
377. A tutor testamentar is not liable for so high a degree of
diligence as a tutor-of-law or a tutor dative, because he did not
seek the office, whereas they did.
378. In the former case, the amount of diligence which the
tutor devotes to his own affairs will be sufficient; in the latter,
the amount of diligence which a prudent man (providens paterfamilias)
employs in the management of his affairs will be incumbent.

379. Fathers will be liable only for gross and glaring negligence
(crassa negligentia).
380. The liabilities of a tutor who has once accepted will not
be diminished though he has lain by altogether, and allowed the
other tutors to manage or mismanage the estate. To plead that
he has not acted, is to plead neglect of duty.
381. Amongst themselves, tutors are liable according to their
actual intromissions.
382. All tutors, except tutors testamentar, are now placed
under the superintendence of the Accountant of the Court of
Session, appointed by the Pupils Protection Act (12 and 13
Viet., c. 51), and their accounts are audited according to the
provisions of that statute.1
383. Tutory may terminate from any one of the following causes.
384. (1.) The pupil's arrival at puberty. This rule holds with
regard to each pupil successively, though there may be several
of different ages, who consequently cannot attain to puberty at
the same time. The father cannot prolong the term of pupilarity.

385. (2.) The death of the tutor or pupil. Death in this
case, includes civil, as well as natural death. On the tutor's
death, his heir is not entitled to the office merely in consequence
1 Infra, p. 74.
of his being heir; and the proper course is, for the nearest
agnate to serve tutor-at-law, or for the next of kin to obtain the
appointment of a tutor dative, or a factor loco tutoris.
386. (3.) The marriage of a female tutor voids the office. "This
is a rule which no provision of the testator can dispense with"1
387. (4.) If the tutor has been appointed conditionally, the
office will become vacant on the occurrence of the contingency
named in the deed of appointment. Under this head come the
very common case of a number of tutors being appointed jointly,
or a quorum or sine quo non being named. If any one in the
first or second cases, or the sine quo non in the third, fail, the
whole nomination is at an end. When tutors testamentar have
been appointed without any express statement of their being joint,
the nomination does not fall by the death of one, or even of the
majority of the whole. A different rule holds as to tutors dative.
388. (5.) Resignation of the Office.—A tutor is not entitled to
resign after lie has entered on the management of the estate.
The consent of his co-tutors would not validate the resignation
of one of them. But though tutors cannot free themselves from
the responsibilities of the office at their own hands, seeing that
many cases occur where their continuance in office would be
prejudicial to the ward, the practice has been introduced of applying
to the Court for liberty to resign. Infirm health has been
sustained as a sufficient ground for resigning.
389. (6.) Removal as Suspect.—Although guardians are not,
as they were by the Roman law, considered public officers, the
law of Scotland has so far retained the principles of that system
as to hold them amenable to the Court of Session as the Supreme
Court of Equity. It is not necessary, in order to warrant his removal,
that the conduct of the tutor shall have been dishonest, it
is enough if, through incapacity, bad health, or negligence, he
do not perform the duties which his office imposes on him.
1 Stair, i. 6, 23.
390. Incapacity may be moral, as well as intellectual or
physical; and female tutors who have had bastard children, or
are otherwise proved to have been guilty of fornication, have
been removed.
391. The ground of removal which most frequently occurs in
practice, is failure to make up tutorial inventories.
392. The action of removal may be raised by the pupil himself,
authorised by a tutor ad litem, and is competent also to a
co-tutor or to any of the pupil's relations. But persons unconnected
with the pupil have not, as in the Roman law, a right to
interfere. A judge may also, ex proprio motu, remove a tutor
incidentally proved guilty of acts rendering him suspect.
393. All tutors may be removed, even fathers. On the removal
of the tutor, the Court will appoint a factor loco tutoris, if
none having a better title claim the office.
394. An action of count and reckoning is competent if the tutor
neglects to account at the termination of the tutory, not only to
the ward, but to his heir and his creditors, and not only against
the tutor, but against his heir.
395. Where the balance is in favour of the tutor, a corresponding
action of accounting may be instituted by him.
396. The office of tutor is entirely gratuitous, being supposed
to be discharged not from mercenary motives, but from kindly
feelings of relationship or affection. The rule need scarcely ever
be attended with hardship, as tutors may appoint factors with
salaries, who will manage the whole affairs of the trust, leaving
nothing for the tutors to do but to examine their accounts.
397. The action of accounting, whether by pupil against
tutor, or tutor against pupil, prescribes, if not raised within ten
years after the termination of the office. The statute by which
this limitation was introduced (1696, c. 9) also provides, That it
shall not run against minors; that is to say, that the ten years
are counted from the majority.
II.—Curatory.
398. The distinction between tutory and curatory, and the
different objects of the latter, have been already pointed out in
treating of guardianship in general.1
399. Minors are regarded by the law of Scotland as having
sufficient capacity for the ordinary business of life; but not as
possessing that matured understanding and experience necessary
to render their deeds unchallengeable, under all circumstances.
To supply this deficiency is the object of curatory.
400. As a general rule, a minor without curators may competently
perform all the acts which are competent to one who is
major, under the qualification, that if the minor can prove lesion
within four years (the quadriennium utile of the Romans), the
acts done by him will be set aside. In such circumstances no
one, of course, is willing to contract with him, and hence the
necessity for appointing a curator to give validity to his deeds.
401. A deed by a minor having curators, without their consent,
is null, except so far as he is benefited thereby.
402. A minor may test on his moveable property, however
valuable; and he may sell his heritage, or otherwise dispose of it,
for onerous causes, subject to the condition already mentioned;
but he cannot gratuitously convey it to any other but his heirat-law,
and to him only mortis causa.
403. A. minor cannot hold a public office, or even such quasi
public offices as trustee on a sequestrated estate, because it
would be incongruous to allow him irrevocably to bind the constituents
of the bankrupt, whereas, if he had been dealing with
his own affairs, he could have claimed restitution on the ground
of minority and lesion.
404. He cannot be a juror or a commissioner of supply; but
1 Ante, p. 55.
it has been held, with some difference of opinion, that he may be
a sheriff-clerk depute.
405. Persons competent to be tutors1 may be curators, and
those who are ineligible to the former office are also ineligible to
the latter.
406. Curators are appointed in four ways:
407. (1.) Ipso jure, i.e., by the action of the law itself. It is in
this way that the father is curator as well as tutor to his children;
and he consequently requires no judicial proceeding, or
other form of appointment, to vest him with the office.
408. The minor cannot choose curators for himself during his
father's lifetime, even where he is possessed of separate property.
But the father may resign this right, and allow the minor to
choose other curators; and if the minor have an interest in a
law-suit adverse to his father's, a curator ad litem will be appointed.

409. Where property has been left under the express condition
that the father shall not have the administration of it, the
minor may choose curators.
410. The grandfather is not curator ex lege.
411. Bastards are not under the curatorial power of their
natural father, nor can he appoint them curators. They may
choose curators during his life, and against his will.
412. As the husband, in all cases, becomes by marriage the
guardian of his wife, and the curatory of her father and all others
over a female minor ceases on marriage, a husband does not
require to find caution, or to make up inventories.
413. (2.) By testament.—The common law of Scotland, following
what to a certain extent was that of Rome, denied to fathers
the power of appointing testamentary curators. This was altered
by the statute 1696, c. 8, which conferred on fathers the right
of nominating curators to their children, whom the latter are
1 Ante, p. 57.
compelled to accept, at least with reference to an estate descending
from the father himself.
414. The rules for their appointment are the same as in the
case of tutors.1
415. They are not bound to find caution, but they may be removed
as suspect by the Court, on the application of any near
relative of the minor.
416. (3.) By choice of the minor.—The form of appointment of
this class of curators was regulated by express statute so early
as 1555, c. 35. The proceeding may take place either before the
Sheriff Court of the county or the Court of Session. Two of the
most "honest and famous" of the minor's kin, both on the father's
and mother's side, must be cited to appear in Court, to hear and
see curators given to the minor.
417. Where the children are bastards they have no legal kin;
but the Court will hold those on the mother's side to be so for
this purpose.
418. If there are no kin, in point of fact, the Court will still
nominate curators.
419. (4.) By the Court of Session.—The appointment of curators
to manage particular actions is of every day occurrence; and if
not applied for by the opposite party, will commonly be made by
the judge of his own accord.
420. Curators of all kinds are entirely at liberty either to
accept or decline office.
421. Curators are bound to make up inventories of the minor's
estate in the same manner and under the same penalties as
tutors.2
422. The duties of the curator differ essentially from those of
the tutor. Those of the curator consist in giving the minor counsel
for the guidance of his own acts, and validating them by his
consent; those of the tutor in acting for him.
1 Ante, p. 57. 2 Ante, p. 58-9.
423. The powers and duties of all curators are alike. Fathers,
testamentary curators, and those chosen by the minor himself,
possess the same authority, with this explanation, that the powers
of the two latter classes may be modified by the deed of nomination.

424. The curator has no power over the person of the minor.
He may marry, go abroad, and fix his domicile where he pleases,
and no guardian or court can restrain him. This was held to be
law in the ease of a girl who was only twelve years and five days
old.1
425. It is the duty of the curator to advise the minor as to
his education; but he has no power to go beyond advice.
426. It is the duty of the curator to advise the minor as to
his future occupation in life, and he will be justified in allowing
him to invest his means in such a way as to form a stock in trade.
427. When the minor and his curator differ in opinion, the
Court will not compel either to yield to the other; but they will
free the curator from his office, on an application by him to that
effect, and appoint another in his stead; or, if the application
should proceed from the minor, they will remove the curator, if
they are of opinion that his refusal to consent to the acts of the
minor has been unreasonable.
428. There are many cases in which, though the curator cannot
act, he will be responsible for the damage which may result
from not acting, and, in such circumstances, his only safe course
is to resign his office with the consent of the Court.
429. The diligence prestable by curators is the same as that
by tutors.
430. The modes in which curatory terminates correspond to
those already explained relative to tutory.
431. Curators may be removed as suspect, in like manner as
tutors; for the same reasons and in the same mode.2
1 Graham v. Graham, M. 8934. 2 Ante, p. 64.
432. Curatory, like tutory, is gratuitous.
433. The period from which the curator's accounting must
commence is the date of his acceptance of office. If he has not
intermeddled with the estate, he ought to have done so.
434. No minor, even with the consent of his curator, can alter
the succession to his heritable estate by a gratuitous deed,—i. e.,
he cannot convert heritable estate into moveable estate; but he
may do the reverse. Even without consent of his curator he
may execute a testament, bequeathing his moveable property according
to his pleasure.
435. In order that a minor may be freed from a deed which
he has executed without the consent of his curator, it is sufficient
that he establish the facts of minority and lesion. Whether there
was or was not fraud on the side of the other party, is not inquired
into. Proof of personal ability or professional knowledge
on the minor's part will not bar the plea. The minor's heirs,
creditors, or assignees may claim restitution.
436. Marriage contracts may be set aside on the head of
lesion, though the marriage itself cannot be reduced.
437. For the sake of the minor himself, the law refuses restitution
in the payment of ordinary debts, rents, dividends, interests,
and the like, whether made to a tutor or a minor, unless
where the debtor acts fraudulently.
438. In order to enable minors to obtain a livelihood, the law
in this respect is considerably modified when they are engaged
in trade or professional pursuits.
439. There is no restitution to a minor who has fraudulently
induced another to contract with him.
440. Where two minors contract, if no fraud be proved, restitution
will take place only to the extent to which the gainer has
profited by the transaction. If there has been no gain, the contract
is irreducible unless on the ground of fraud.
441. The law of Scotland, following that of Rome, has fixed
four years as the period within which the minor must avail himself of
the privilege of getting himself restored against deeds to his hurt.1
442. This rule applies to deeds which are voidable, and not
to those which are void and null, such, for example, as a deed by
a pupil, which may be reduced within forty years. Here the
ground of reduction is not a privilege competent only to minors,
but a right to reduce a deed which has never been validly executed,
and which of course belongs to every one.
443. It is a very old rule in the law of Scotland, that the
minor is not bound to plead in any suit brought against him for
the purpose of depriving him of his paternal heritage.
III—.Pro-Tutors and Pro-Curators.
444. These are persons who, without any title to the office of
tutor or curator, act as if they were legally appointed to these
offices.
445. Though the motives of persons acting in this capacity
may be excellent, they are not favourites of the law. Their administration
may be honest, but they have not given the guarantees
for its honesty which the law, by exacting caution, and enforcing
the preparation of inventories, demands from ordinary
tutors and curators. It is for this reason that, though they have
none of the powers of tutors and curators, they are liable as
if they had them. If a debt is lost in consequence of their neglecting
to raise an action, they are bound to pay it, though if
they had instituted the action it would have been a valid defence
to the debtor, that they had no title to sue. If they neglect to
lend out the minor's money, they are liable in interest. In short, if
they fail to use the same diligence that an ordinary tutor or
curator is bound to use, according to the rules already stated,
they are liable for all loss and damage which their negligence
may have caused.
1 Aide, p. 66.
446. Pro-tutors or pro-curators may be called upon at any
time by the minor to account and resign their office.
447. In this accounting they are entitled to credit for all sums
disbursed profitably on the minor's account.
IV—.Factors Loco Tutoris, and Curators Bonis.
448. The formalities necessary to the constitution of the
offices of tutory and curatory are of such a nature, as frequently
to form obstacles to the appointment of the only parties qualified
for these duties; and the rule which prohibits any charge being
made by tutors or curators for their services, however burdensome
and long-continued, very frequently deters those who have
been nominated from incurring the responsibilities of a guardianship
that may extend over a long period of years. Hence there
are many cases in which those who are most in need of protection
would be deprived of it altogether, were it not for the appointment,
by the Court of Session, of officers who are induced to
labour by receiving remuneration for their services. The extent
to which this sort of guardianship has superseded that by
private appointment may be gathered from the fact, that, in 1834,
the Lord President stated in a case,1 that judicial factors had then
under their management property to the value of eight millions.
449. It was for the regulation of the duties and responsibilities
of this class of officers more especially, that the "Act for
the better protection of the property of pupils, absent persons,
and persons under mental incapacity," was passed in 1849;
though its provisions are also applicable to tutors-of-law, tutors
dative, and to persons served as curators or appointed tutors
dative to insane persons and idiots.2
450. Judicial factors for the mostpart are professional persons;
but it is not necessary that such should be the case.
1 William Bell's Petition, March 7, 1834.
2 12 and 13 Viet, c. 51, sec. 1.; infra, p. 74.
451. Females are not absolutely ineligible, though it was
found that so many litigations arose from their mismanagement,
that the Court has latterly declined to appoint them, whether
married or single.
452. It was formerly the rule that a minister of the Established
Church should not be appointed, as his duties were considered
incompatible with the proper discharge of the office; but
the minister of a dissenting congregation was eligible, as the
Court was not supposed to know anything of his ecclesiastical
character. Recently ministers of the Establishment have been
appointed.
453. In general, only one person will be nominated.
454. Where there is a competition between two parties for
the office, the Court will usually pass them both over, and remit
to the Sheriff or to the Clerk of Court to suggest a neutral
person.
455. A bankrupt will not be appointed if any one having interest
object, and a stepfather is considered a bad guardian.
456. The appointment is made by one of the nearest of kin of
the incapacitated person (in the case of a pupil, generally the
mother) presenting a summary petition to the Junior Lord
Ordinary of the Court of Session, setting forth the state of his
affairs, the want of a person legally authorised to manage the
estate, and suggesting some one for the office. The petition is
ordered by the Lord Ordinary to be published and intimated to
the nearest of kin on the father's and mother's side.
457. If the pupil or fatuous person be illegitimate, and consequently
without legal next of kin, the Court will dispense with
any intimation beyond that on the walls of the Court, and in the
Minute-Book.
458. The name of the party suggested must be given in the
petition, as this is one of the things to be intimated.
459. Where there is urgent necessity for an immediate appointment,
the Court will appoint the person suggested to be
interim factor.
460. The following are the leading provisions of the Pupil's
Protection Act,1 already referred to, in so far as they affect
judicial factors:—
461. (1.) The judicial factor must find caution for duly performing
his duties.
462. (2.) He shall lodge with the accountant of the Court of
Session a distinct rental of the lands committed to his management,
a list of funds, and an inventory of moveables, all of which,
when adjusted and approved by the accountant, shall be signed
by him and the factor; and shall form a ground of charge
against the factor. If at any time thereafter additional property
belonging to the estate shall be discovered, the factor
shall report the same in his next account of charge and discharge
to the accountant.
463. (3.) The factor shall close his accounts once a year, and
lodge them with the accountant.
464. (4.) He shall lodge the money in his hands in one of
the banks in Scotland established by Act of Parliament or Royal
Charter, in a separate account, in his own name as factor; and
if he shall keep in his hands more than fifty pounds, he shall be
charged at the rate of twenty per cent. on the excess for such
time as it shall be in his hands beyond ten days; and unless the
money has been so kept from innocent causes, the factor shall
be dismissed from his office, and shall have no claim for commission.

465. (5.) If the factor shall fail in the discharge of his duty, he
shall be liable to such fine as the Court may determine, to the
forfeiture of the whole or of part of his commission, to suspension
or removal from his office, or to any one or more of such
penalties as the Court, in its discretion, shall decide; and this
1 12 and 13 Vict., c. 51. 28th July 1849.
in addition to any liability for damages done to the estate by his
misconduct.
466. (6.) The factor may apply to the Court, through the accountant,
for special powers not coining within the ordinary
course of factorial management, either for improving the estate
of a minor, or for providing for the comfort of a lunatic or other
incapable, by sinking a portion or the whole of his estate on
annuity.
467. (7.) The Crown is empowered to appoint a person
versant in law and accounts, to be called the accountant of the
Court of Session, and whose duty it shall be to superintend
generally the conduct of all judicial factors and tutors and curators;
to adjust their rentals, lists, and inventories; and to audit
their accounts.
468. (8.) The accountant's audit and report are conclusive
against the factor and his cautioner, unless objected to within
twenty days. Where objections are lodged, and where the accountant
adheres to his audit, the matter shall be brought before
the Lord Ordinary, whose judgment shall be subject to the review
of the Court, at the instance of the factor, but not of time
accountant.
469. (9.) The accountant shall make an annual report to the
Court of Session of all judicial factories, which shall be printed.
470. (10.) The accountant may make requisitions and orders
on the factor, and report to the Lord Ordinary or the Court any
disobedience to such order, or other failure of duty of which he
may be guilty.
471. (11.) If the accountant shall see reasonable grounds for
suspecting malversation on the part of the factor, or such misconduct
as to infer removal or punishment, he shall be entitled
to lay a case before her Majesty's Advocate.
472. (12.) Factories constituted before the passing of the
Act are placed under its provisions.
473. (13.) The accountant is empowered to require information
from banks as to the funds of estates under his charge, and
he is made the custodier of such bank receipts as were formerly
lodged in the hands of the Clerk of Court.
V—.Cautioners for Guardians.
474. Cautioners are required for tutors-at-law, tutors dative,
curators, factors loco tutoris, and curators bonis. Sometimes the
cautioner binds himself simply as such, sometimes he is bound as
full debtor, or conjointly and severally with the principal; and
the same is the case where there are more cautioners than one.
475. Where he is bound simply as such, the cautioner should
expressely provide that the principal shall be discussed before any
claim is made on him, otherwise he will not have the benefit of
discussion.1
476. Where there are several sureties, each is liable only for
his share of the debt, and cannot be called on by the creditor to
pay more, unless in the case where, from the insolvency of one
cautioner, the rest must contribute pro rata for his share.
Where a number of cautioners are bound a., co-principals, i.e.,
as full debtors with the principal obligant, they have neither the
benefit of discussion nor division, and consequently any one may
be sued for the whole debt.
VI—.Guardianship of Insane and Facile Persons.
477. The sovereign, as pater patriæ, has always been recognised
by the law of Scotland as guardian of the insane; but this
right is never exercised till the fact of insanity has been ascertained
by legal process, and it is always delegated to tutors or
curators. By the statute 1585, c. 18, the rule of the Roman
law was adopted, and it was determined that the nearest male
19 and 20 Vict., c. GO, sec. 8.
agnate of lawful age is the person entitled to the guardianship
of his insane relative, in whatever form the insanity may be
evinced.
478. It would seem that, in anticipation of insanity, a person
may appoint a guardian to himself.1
479. The father is administrator-in-law for his children; and
should they become insane, and continue in this state after
majority, he is still their guardian in preference to all others.
To entitle the father to act in this capacity after majority, however,
the child must be cognosced.
480. Tutors-at-Law.—The procedure in the appointment of
tutors-at-law to the insane, which has remained unaltered for
some centuries, is as follows:-
481. Any party having an interest may procure from Chancery
a brieve, directed to the judge ordinary within whose jurisdiction
the lunatic resides, ordaining him to summon an inquest
consisting of fifteen persons, whose verdict is by a majority, for
the purpose of cognoscing the party. The inquisition being for
a public object, and taken on the king's precept, there is no
necessity for any proper pursuer in the case. As the character
of the insanity may be doubtful, it is common to purchase both
a brief of furiosity and a brief of idiotry, the jury being left to
retour that under which the insanity properly falls.2
482. The first duty of the jury is to ascertain the state of
mind of the person alleged to be insane, and, for this purpose,
the best evidence, both medical and by acquaintances, must be
laid before them. The members of the inquest may themselves
1 Fraser, ii., p. 315.
2 The question put to the jury by the brieve of furiosity is the following,-
" Si sit incompos mentis, prodigus et furiosus, viz., qui nee tempus, nec modum
impensarum habet, sed bona dilaceranda profundit; " whilst that by the brief
of idiotry is this,—" Si sit incompos mentis, fatuus et naturaliter idiota, sic
quod timetur de alienation tarn terrarum suarum quam aliarum rerum mobiliwn
et immobilium."
be witnesses. It has been settled, by a judgment of the House
of Lords, that in proof of insanity it is not competent to adduce
evidence of the insanity of the relations of the party alleged to
be insane.1
483. The evidence may be taken by commission, but the party
must be produced to the jury in order that they may judge of his
condition from ocular inspection.
484. The jury next fixes who is the nearest male agnate, and
as such entitled to the guardianship.
485. This provision of the statute does not apply to the case
of a wife, whose husband is her guardian at all times, and her
tutor when cognosced to the exclusion of the nearest agnate. In
such a case the only object of cognition is to confer on the husband
exclusive powers of management and coercion, which he
does not possess as husband simply.
486. Should the nearest agnate decline the office, the next
agnate cannot accept it; and the only mode of remedying the
defect is the appointment of a tutor dative or a curator bonis by
the Court of Session.
487. Tutors to the insane possess the same powers as tutors
to pupils, and are subject to all the provisions of the Pupils Protection
Act.2
488. Where the office terminates by the restoration of the
lunatic to sanity, the fact of convalescence must be determined
by a decree of the Court of Session, on an action of declarator of
convalescence. The tutor is not entitled to resign office merely
because there is a lucid interval. It has often been remarked,
that if the question of insanity be a proper one to be submitted
to a jury, that of sanity would seem also to fall within their province;
but such is not the rule of the law of Scotland.
489. After a decree of convalescence has been pronounced,
the Court cannot, though the person should relapse into insanity,
1 M'Adam or Walker v. M'Adam, i. Dow, 177 (1806). 2 Ante, p. 74.
authorise the tutor to resume the management without a new
verdict.
VII.—Curators Bonis to the Insane appointed by the Court of Session.
490. Should no person apply for the office of guardian in any
of the forms just explained, it is competent for any of the next
of kin to apply to the Junior Lord Ordinary of the Court of
Session for the appointment of a curator bonis.
491. The petition for the appointment of a curator bonis must
be served on the fatuous person himself. It must be accompanied
by the certificate of a medical man, which must be on "soul and
conscience," but need not be on oath.
492. When the petition is opposed, the Court remit to the
Sheriff of the county where the lunatic resides to inquire into the
grounds of the application, with power to examine medical and
other witnesses, and to visit the individual himself, and state his
own opinion.
493. On advising the proof and report, the Court will determine
whether the appointment should be made or refused.
494. The curator bonis has no power over the person of the
insane, his office being entirely confined to the management of the
estate; and hence the advantages attending the appointment of a
tutor dative.
495. When the fatuous person thinks himself recovered there
is here no necessity for raising an action of declarator of convalescence.
It is sufficient to present a petition for the recall of
the curatory, and, if this petition is opposed, the Lord Ordinary
will remit to the Sheriff, as when the appointment is opposed.
496. The office of curator bonis comes to a close by the service
of the tutor-at-law.
497. Though the presumption of law is in favour of sanity till
cognition has taken place, or a curator bonis been appointed, still
deeds may be reduced on the ground of insanity, though there
has been no cognition. All that is requisite for this purpose is
that the fact shall be clearly established during the course of an
action of reduction before the Court of Session. In practice, this
fact is usually determined by the verdict of a jury.
VIII.—Interdiction.
498. Idiocy and madness are the extremes of incapacity.
Between them and sanity of mind there lie numberless degrees of
imbecility and incapacity, and for these the law has provided
protection by interdiction.
499. Interdiction is of two kinds—voluntary and involuntary.
500. (1.) Voluntary interdiction is an arrangement which a
person, conscious of his own imbecility, adopts in order to protect
him from the ruin which his improvidence would entail on him.
501. Voluntary interdiction is imposed by the execution of a
deed termed a bond of interdiction. It narrates as shortly as
possible the cause of granting, declares the granter's confidence
in the persons whom it nominates interdictors, and binds, obliges,
and interdicts the granter during the whole days of his life
from doing any deed alienating or contracting without their
consent. Though the granter will be permitted to touch on his
own weaknesses very slightly in the narrative of the deed, there
must be a valid cause for the restraint in point of fact, otherwise
the deed will be set aside.
502. Interdiction is completed by publication and registration
in the public register of interdictions.
503. (2.) Judicial interdiction.—This form is not adopted by the
prodigus himself, but by his friends, who resort to it as the only
means of protecting him when his defects are not of such a
degree as would justify them in applying for a curator bonis on
the ground of insanity, or of having him cognosced as an idiot or
a madman.
504. It does not appear that any but relatives can competently
raise an action of interdiction.
505. If appearance be made in the action of interdiction, the
Court will proceed to proof of the character and disposition of
the alleged prodigal, and determine according to its import.
506. Judicial interdiction must be published and registered in
the same manner as voluntary interdiction.
507. It is unnecessary to intimate the interdiction to the
prodigal.
508. The duties of the interdictors are rather of a negative
than a positive character, and in this respect they differ essentially
from those of administrators. Interdictors are not expected
to get the prodigus to execute necessary or beneficial
deeds. He is bound to see to that himself; and their duty is
simply to say, after he has brought the deed before them, whether
or not they will adhibit their consent to it. The interdictors
have thus no general management of the affairs of the interdicted
person, and consequently have no accounts to render.
509. Interdiction is further confined exclusively to heritage,
and has no application to any deed by which the moveable estate
may be affected.
510. Notwithstanding interdiction, the prodigus is moreover
entitled to make a settlement of his heritable estate mortis causa,
in the same manner as the most unlimited proprietor.
511. Rational and onerous deeds, and deeds in consequence of
which money has been profitably employed for the prodigus, will
likewise be binding.
512. As interdiction does not affect moveable property, it is
competent, on the personal obligations of an interdicted person,
to raise and execute all the diligence of the law, with the single
exception of attaching his heritage.
513. An interdicted prodigus may vote at the election of a
member of Parliament.
514. A judicial interdiction cannot be taken away otherwise
than by the sentence of the Court which imposed it. Voluntary
interdiction falls by the death of the interdictor; or the prodigus
may recall it without the consent of his interdictors.
CHAPTER IV.
MASTER AND SERVANT.
515. The complete family, both in ancient and modern times,
has been regarded as embracing the servants of the house, and
service has thus generally been considered as belonging to the
domestic relations. But so mercenary has the relation become
in our own day, that the contract of service might, with equal
propriety, be treated of under the head of letting and hiring.
516. Service is a contract whereby one person agrees to pay
to another a certain sum of money for services, which the other
agrees to render him for a definite period. In all free service
there is an implied condition to the effect that the contract shall
be voidable by either party, at any time, on payment to the other
of the damages which his failure to implement it may have occasioned
him.
517. Every person of lawful age, and not subject to any
natural or legal incapacity, that is, every person who is capable
of contracting,1 may be either a master or a servant.
518. A pupil cannot enter into a valid contract of service
either as a master or a servant; and, it is consequently necessary,
when he contracts to serve, that either his father or his tutor
should become bound for him.
519. A minor may enter into the contract of service, in either
capacity, without curators; but the contract of service, like other
contracts, will be reducible by him on proving lesion; and if he
1 Ante, p. 4.
have curators, or if his father be alive, a contract of service
entered into by the minor, without consent, is null.
520. A married woman can hire servants as her husband's
representative, but she cannot become a servant to another without
his consent, and should she attempt to do so, he is entitled
to recover her person.
521. The contract of service may be entered into either verbially
or by writing.
I.— Verbal Contracts.
522. A verbal contract of service can only endure for one
year.
523. It is complete when the parties are agreed as to the hire,
the duration, and the nature of the service.
524. It may be proved by witnesses.
525. It lies with the party who seeks to enforce the contract
to prove its terms. Here, however, as in other cases, the onus
probandi may be shifted by the particular circumstances of the
case.
526. A verbal contract of service for more years than one is
not effectual even for one year, unless it has been partially implemented.

527. It it be agreed that a contract of service for one year
shall be reduced to writing, the contract is incomplete till the
writing be executed, and either party is entitled to resile. But
if the service has been entered on, the contract will be effectual
for the period, and on the conditions usual in the particular employment,
though no writing should ever follow.
II.—Written Contract.
' 528. If the contract of service is to endure for more than one
year it must be reduced to writing. In this respect it stands on
the same footing with the contract of lease.
529. By 55 Geo. III., c. 184, any memorandum or agreement
for the hire of any labourer, artificer, manufacturer, or menial
servant, is exempt from stamp duty.
530. The writing must consist either of a probative deed, or
of the interchange of holograph writings between the parties.
531. Defects in the legal solemnities cannot be supplied by a
reference to the oath of the party who is attempting to invalidate
the contract; but they may by proof (either by reference to
oath or otherwise), of what is called rei interventus,—that is to say,
—of any transaction between the parties which has taken place
in consequence and on the faith of the contract.
532. Earnest or arles is a sum of money given by the master to
the servant in token that the contract is complete. Such earnest
is not necessary to constitute the contract, except by force of an
uniform and notorious local custom; and even though given it
will not constitute rei interventus, so as to validate a contract
otherwise defective. Its only value is, therefore, as an adminicle
of proof.
III.—Implied Contract.
533. Where the contract has expired and the relation between
the parties continues unchanged, they are held to have renewed
the contract by tacit consent, without any new engagement being
entered into.
534. When one near relation discharges the duties of a servant
to another for a considerable time, wages will sometimes be held
to be due even though there should have been no special agreement
to that effect; but such cases depend entirely on the
special circumstances of the parties, and no general rule can be
laid down regarding them. It has sometimes been held that
there is a presumption in favour of the service being for wages;
but the prevailing doctrine in Scotland seems to be that there
is no presumption either way.
IV.—Duration of the Contract.
535. There is no illegality in a contract of service extending
over many years, or even possibly for life. Such a contract,
having the condition continually attached to it that it is voidable
by either party on the payment of the pecuniary damages which
his non-implement may have occasioned, has, in reality, nothing
more of the character of slavery than an agreement to serve for
a month or a year.
536. When the period of duration is not expressly mentioned
at the hiring, the law, proceeding on the presumed intention of
the parties, fixes the customary term of engagement in that particular
line of service and quarter of the country. The circumstance
of wages having been rated at so much a year, will not
overcome the presumption that the engagement was for half-ayear,
or whatever else may be the ordinary period.
537. Domestic Servants.—In Scotland, the presumption in the
case of domestic servants would probably still be held to be in
favour of a six months' engagement, but the practice of hiring
from month to month, which has been recently adopted by many
families, would render the presumption more easily overcome by
contrary proof than it would formerly have been.
538. Rural Servants.—Farm servants and gardeners are presumed
to be hired for a year, because their occupations depend
on the revolutions of the seasons, and one part of the year is a
time of labour, and the other the reverse.
539. Overseers, Managers, etc.—In the case of all persons of a
superior station, the presumption will be for a year's duration,
as it is not likely that they would accept situations from which
they might be dismissed, at the pleasure of their superiors, at a
moment's notice.
540. Tutors, Governesses, and Clerks.—The general presumption
in favour of a yearly engagement would seem to be less strong
in the case of these parties than in that of stewards, grieves, or
overseers; and, from the intimate personal contact which, in
such situations, must take place between the employer and employed,
there is much convenience to both parties in the contract
being dissolvable at the pleasure of either. In the absence of
all evidence as to custom either of the country generally or of
the parties, the contract would probably be held to endure for
a year.
541. Managers of Banks, and Editors of Newspapers.—The
practice applicable to this class of servants does not seem to
have been so uniform as to give foundation for any presumption,
and questions arising between them and their employers would
at once be remitted to proof.
542. Engagement during pleasure.—Wherever there is an engagement
of this nature, the servant may be dismissed at any
time without the employer being bound to assign any reason for
his act.
543. Terms of Entry.—These for domestic and rural servants
are generally Whitsunday and Martinmas, old or new style,
according to local custom. The contract terminates by the
same style by which it begins.
544. Obligations of the Servant.—The servant is bound to enter
the service at the term agreed on. He cannot compel the master
to accept a substitute, seeing that a preference of the particular
person hired—a delectus personce—is of the essence of the
contract.
545. The servant is bound to continue in the service for the
time specified. If he quits it, the master may refuse to take him
back, and may claim damages for breach of contract. In some
cases he may insist for specific implement by the compulsitor of
imprisonment.
546. It had been decided previously to the passing of the
workman's statute, that a workman, mechanic, or artisan, who,
after having entered to his service, deserts or leaves it, without
giving the stipulated notice, may be compelled, by imprisonment,
to find caution to return to his service and continue therein.
The ground on which the Court enforced against a servant in
breach of contract, a remedy which they would not have given
the servant against his master if the latter had violated the
engagement, was that, by the sudden desertion of workmen and
apprentices, the owners of large establishments might sustain
enormous losses, not to be compensated by any damages which
they could possibly recover from their servants.
547. The soundness of the decisions on this point have been
doubted on very high authority, and except as regards cases
actually falling within the provisions of the workman's statute
(4 Geo. IV., cap. 34), it seems doubtful whether the compulsitor
of imprisonment can be legally applied. So strongly, indeed,
have the difficulties of the subject been felt, that, in 1846, a consultation
of the whole Court was actually ordered, but the case1
in which the point had arisen was, unfortunately, taken out of
Court by a compromise.
548. It has never been held that the contract of service can
be enforced by imprisonment against a domestic servant; and the
principle on which the rule was introduced seems to exclude
from its operation all but artificers, colliers, and the like. It
has not even been applied to professional men, clerks, artists,
and overseers, though it is very possible that the loss occasioned
by their failure to implement their contracts might exceed their
ability to pay damages. It has been expressly decided that
domestic servants are not affected by the workman's statute,2
the provisions of which will be stated when we come to speak of
the statute law affecting mechanics and artisans.3 It will be
1 Lees v. the Grangemouth Coal Co., 26th Feb. 1846, Jurist, p. 273.
2 Normant v. Wilson, 25th Jan. 1845; 2 Brown's Justiciary Reports,375.
3 Infra.
sufficient to observe, in the meantime, that it has not superseded
procedure at common law.
V.—Exceptions to the Obligations on the Servant to enter and continue in the Service, or on the Master to retain him.
549. Enlistment.—It is provided by the Annual Mutiny Act,
that if servants enlist, their masters have no right to have
them restored. It is, besides, lawful for a justice of the peace
to adjudge to a recruit a reasonable proportion of his wages for
the time he has actually served; and, in case of neglect or refusal
to pay the same within four days, he is empowered to issue a
warrant for levying the same, by sale of the goods and chattels
of the master.
550. Marriage of .Female Servant.—It is the general opinion
of lawyers in Scotland that a female servant who marries
is entitled to quit the service—her husband, not her master,
being entitled to her person. In this case, however, the master
will have a claim for moderate damages, though whether or not
this claim would be valid against her husband, is yet undecided.1
The marriage of a servant is no ground of dismissal, if he or she
be content to serve as formerly.
551. Sickness.—If the sickness be caused by a hurt sustained
whilst engaged in the master's service, e.g., by a kick
from his horse, or the bursting of his fowling-piece, the servant
is entitled to full wages, and if he live in the family, to board
wages up to the period of the termination of the contract.
552. If the master offer to maintain the servant in his own
house, the servant, in the general case, is not entitled to leave
and claim board wages; but, if it be found necessary for the servant's
recovery that he should be removed, the master must pay
1 Bell's Princ., p. 71, sec. 181. On principle, the liability of the husband is
clear; marriage is as much his act as the wife's.
board wages. If the servant's sickness has arisen from overtasking,
the same principles are applicable.
553. The servant will not be entitled to wages after the term
of his engagement, though the effect of the injury continue after
that period. Any farther claim he may have against the master,
on the ground of improper exposure to danger or otherwise, will
resolve itself into an ordinary claim for damages.
554. If the sickness be referable to no cause which the master
could possibly have controlled, the rule is that wages and boardwages
will be due only where the illness is of moderate duration,
and a deduction from these will be made if the length of the sickness
be very great considered in relation to the length of the
engagement.
555. It has not been laid down by any of the authorities
what shall be considered a short, a long, or a moderate period of
sickness. Such questions of degree admit of no precise rule; and,
if they cannot be solved by the good sense and good feeling of
the parties, must be left to the discretion of the court.
556. Where a substitute has been required, the sum paid to
him will furnish some guidance for determining the deduction to
be made from the wages of the servant.
557. Sickness caused by the servant's own misconduct, debauchery,
or imprudence, will entitle the master to dismiss him during
the period of the engagement. Here the case is the same as if
the servant had been guilty of a breach of contract, and he cannot
in any case exact more wages than for the period during which
he has fulfilled it. He cannot compel the master to keep him
useless in his service, or to board him in his house, even should
he be willing to forego wages.
558. In like manner, where the sickness had begun and was
known to the servant, but concealed from the master, at the date of
entering into the contract, wages will be due only for the time he
has actually served. There is an implied warranty in the contract,
that the servant has the physical capacity to fulfil it. This
rule, however, will not entitle the master to resile from the contract
merely because the strength of the servant proves inferior
to his expectations. The only case in which it will operate is
where there has been fraudulent concealment of disease, e.g. that
the servant is subject to epilepsy.
559. Workmen earning weekly wages, and not residing in the
master's house, have no claim against the master if they have
been disabled by sickness from discharging duty. Neither
does such exist in the case of any other class of servants, if
their engagement is liable to come to an end on a moment's
warning.
560. Where mechanics or artizans are engaged for a lengthened
period they will have the same claim to wages during
sickness of moderate duration as domestic servants, though not
of course to board wages.
561. Insanity, being only another form of sickness, is governed
by the same principles.
562. Where the parties stipulate that for every absent day the
servant shall serve two, this stipulation will be held to have no
reference to days on which the servant is sick.
563. Imprisonment.—When the servant is carried away to prison
for a crime of which he is found guilty, or for a debt which is
found to be unpaid, then, as the contract was broken by his
voluntary act, he is liable in damages, and the master is free
from the contract. If, on the other hand, he is imprisoned on
suspicion of being guilty of a crime of which he is ultimately
acquitted, he is not liable in reparation, and the master is bound
by the contract, because there was no voluntary breach of
engagement.
564. The servant is bound to exercise ordinary skill and assiduity;
the amount of each depending, of course, on the nature of
the occupation.
565. If the service is one calling for what is more strictly denominated
skilled labour, he will be liable in such damages as his
want of ordinary ability in the craft to which it belongs may
have occasioned. Thus, if a farrier undertake the cure of a diseased
or lame horse, and if the horse die through his ignorance,
he is liable for the loss
566. In like manner, if the service calls for unusual assiduity,
he will be held to have promised it by undertaking the duty.
Thus, a person who undertakes to act as a sick-nurse, will be
liable in damages though his assiduity may have been such as
would have been highly creditable in a valet.
567. So also in the case of a person employed to work on
materials of unusual value. A person employed to clean a jewel
is liable in greater diligence and care than he who has undertaken
to mend a cart.
568. The same is the case with ordinary servants of every
description.
569. If a person who hires himself as a cook is unable to perform
the duties of such a situation, the contract is not binding on
the master; and so with regard to any other servant, whether
male or female, domestic, agricultural or manufacturing. But
if, at the time of hiring, the servant acknowledged that he was
imperfectly qualified for the office, and honestly let the master
know his defects, the latter is not entitled to repudiate the contract,
although the servant does not display the usual skill of a
servant hired for the place which he fills. In such a case, the
servant is only bound to exercise the skill which he possesses and
the judgment which he can employ.
570. A servant must be careful of his master's property; and
the master will be justified in dismissing him, not only for wasting
it without cause, but for entertaining his friends with it, or
even for giving it away in charity.
571. In such a case the master would farther be entitled to
deduct from the wages of the servant a sum equivalent to the
damage which his misconduct had occasioned.
572. If a servant wantonly maim a horse, or override him, or
otherwise disable him, he is liable to his master for the damage
which he occasioned, and in some cases may be dismissed.
573. In short, negligence of all sorts is a breach of contract,
and, consequently, a ground of dismissal and forfeiture of wages,
though the rule is one which must not be applied on trifling
occasions or for trivial faults. Delay to open the door would
not be a sufficient ground for dismissing a footman, unless obstinately
persevered in in defiance of orders.
574. The servant is not liable for every damage that may be done
by him.—If ordinary care and diligence have been employed, a
maid servant would not be liable though some of the dishes belonging
to her mistress had been broken in her hands. Servants
cannot be entirely perfect, and unless the damage has arisen
from absolute carelessness or rashness, the master must bear the
loss of his property as one of the inconveniences of hiring servants.
Still less is the servant responsible for damage which is the
result of accident, or of the fault of another.
575. If a servant is robbed of his master's property he is not
liable for it; for he only contracts for his own diligence and
fidelity, not for the honesty of others, or his own strength and
courage.
576. If a servant rob his master, the latter is entitled to dismiss
him without warning, or wages even for the period for
which he has served, and will also have an action for damages
against him which will not be affected by any punishment which
he may suffer as the result of a criminal prosecution.
577. The servant must be respectful.—There is no offence which
courts of law have been so uniform in holding to be a valid
ground of dismissal as insolence. Were it not so, the distinction
between master and servant must either be lost or preserved by
acts of personal chastisement, which modern law does not
permit.
578. This rule extends to the relation between a tradesman
and his journeymen or shop boys, though a speech, which might
justly be deemed insolent when coming from a menial servant to
his master, will often admit of a different construction when addressed
to a tradesman by a servant who scarcely differs from
him in social position. A slighter amount of disrespect will
entitle a master to dismiss his journeyman, if it has taken place
in the presence of other journeymen or apprentices. An angry
word spoken under provocation, or a disrespectful expression or
action, if fully apologised for, will not, unless of a very flagrant
character, be sufficient to sanction the dissolution of the contract.
579. Servant must be obedient.—Disobedience is a breach of
contract which clearly warrants dismissal.
580. The master is in no case bound to assign any reason for
a command which is lawful in itself, and within the fair meaning
of the contract; and it is an act of disobedience on the servant's
part to insist for such reasons before performing what he is
commanded.
581. The master is entitled to control the hours of dining,
sleeping, church-going, and the like, of his servants; and any violation
of his instructions in these respects, unless they were in the
highest degree unreasonable, would be an act of disobedience,
exposing the servant to the penalty of dismissal.
582. A female servant having fallen sick, her master administered
calomel to her on a Sunday, and commanded her to stay
at home. Notwithstanding this she went to church, on the
ground that, by the custom of the place, she was entitled to that
day as her "Sunday out." The master dismissed her; and the
Court held him entitled to do so, on the ground that the servant
had been guilty of disobedience to a lawful order of her master.1
1. Hamilton v. M·Lean, December 9, 1824.
In another case a master was held justified in dismissing a
labouring hind for refusing to remain at home on a Sunday to
attend to the cattle, so as to enable the other servants to go to
church, he having been previously allowed to attend the Sacrament
in his own church.1
583. A coachman was saucy in his behavour to his master,
and on one occasion remained out late and was locked out in
consequence. The master went to inform him that he could not
be admitted at such an hour; but the servant answered that he
would not be kept out, and shoved his master violently aside.
Having thus made good his entry he was rude and insolent.
The master dismissed him immediately, and the Court not only
found him justified in doing so, but allowed no wages for past
time. Where, on the other hand, a servant absented himself
half an hour beyond the proper time on Sunday, this was not
held a sufficient ground for dismissal. Thus, also, a gardener
being absent one day without leave, and this being his first
offence, the Court held it not sufficient to justify dismissal, and
found the master liable in wages. But a servant maid, who
was absent for four days, was not found entitled to wages.
584. The servant is entitled to absent himself for a limited
time in order to look out for another place, after warning has
been given him that he is not to be retained. The extent of
absence which such a cause will justify can be determined only
by local custom and the reason of the case.
585. Drunkenness.—A single instance of drunkenness, if of an
aggravated character, will justify the dismissal of a domestic
servant.2
586. A master of a ship having been dismissed for drunkenness,
and reinstated on condition of having no spirits on board,
violated the condition, and was repeatedly drunk during the
homeward voyage—Held that he thereby forfeited his wages
1 Wilson v. Simson, July 11, 1844. 2 Edwards v. Mackie, Nov. 14, 1848.
from the time at which he violated the agreement, although the
ship arrived safely.
587. Hours of Labour.—Where no special agreement has been
entered into on the point, the servant is bound to labour during
all the hours of the day which the usage of the place sanctions,
or which are in themselves reasonable, considering the kind of
labour he has undertaken to perform.
588. As regards domestic servants, the only limitation to their
hours of labour is that they must be allowed a reasonable time
for sleep, and must not be taxed beyond their strength.
589. Farm servants again are bound to labour only during the
usual hours of a working day, but they are not entitled to refuse
to extend these when necessity requires. Even clerks and artizans,
with whom there is generally a special agreement to work so
many hours, would not be justified in refusing, on a special
emergency, to work an hour or two longer.
590. Holidays.—In parts of the country where the practice of
giving particular holidays is uniform and notorious, the master.
will be presumed to be acquainted with the usage, and to have
acquiesced in it, and the servant will not be liable to dismissal
though he have taken such a day without leave.
591. No servant is bound to work on Sunday unless his
labour come within the line of works of "necessity and mercy."1
Under this head fall the ordinary duties of domestic servants and
also of farm servants, to the extent of attending to cattle and
horses. The servants of apothecaries, dressers in hospitals, and
the like, fall of course under the same rule. It was decided by
the House of Lords, on appeal, reversing the judgment of the
Second Division, that a barber's apprentice is not bound to shave
his master's customers on Sunday morning.2
592. Kind of Work.—There are no questions which more
frequently arise under the contract of service, than questions as
1 1579, c. 70., 2 Philips v. Juner, 20th February 1837. 2 S. and M'L. 465.
to whether or not the work enjoined belongs to the kind of work
contracted for, and there are none so difficult to settle. Where
shall the line be drawn between the obstinacy and fastidiousness
of the servant on the one hand, and the unjustifiable exactions of
the master on the other?
593. The general rule is, that although the work demanded
from the servant may not be within the precise line of his agreement,
yet if it be asked at a time of emergency, his scruples to
do it will not be listened to.
594. But if the deviation be great or often repeated, or if
there be personal danger to the servant from want of skill, a
court of law will interfere to protect him from this breach of
contract on the master's part.
595. No servant is bound to work at a lower class of duties
than that for which he was hired; a tutor cannot be compelled
to act as a butler, nor a butler as a footman, a gardener cannot
be forced to work in a turnip field, nor can a grieve or overseer
of a coal-work be compelled to assist at the windlass-wheel.
Even where no indignity or hardship is inflicted, a breach of
contract will not be permitted. A housemaid, for example, cannot
be compelled permanently to undertake the duties of a cook
or lady's maid, though she would certainly be bound to render
occasional assistance to the cook or lady's maid, or even to do
their duties during an accidental or temporary absence.
596. In the case of a servant of all work there is no room for
such nice distinctions, and she cannot object to do any duty incumbent
on a menial servant.
597. In like manner, servants in husbandry must perform any
part of the labour of the farm which their master points out to
them, and are not entitled to select what is most suitable to their
respective capacities or inclinations.
598. Servants conduct must be decent.—It has been decided as
regards all classes of domestic servants, including tutors, governesses,
and secretaries, that if they have been guilty of lewdness
they have broken the contract.
599. If a man servant debauches a female servant, both may
be dismissed.
600. It is not necessary to justify dismissal that the servant
be with child; it is enough if she introduces men into the house
and sleeps with them.
601. Improper conduct out of the master's house will be a
ground of dismissal, if it can be shown to be prejudicial to the
master, and hurtful to the feelings or reputation of himself or his
family.
602. Improper conduct previous to entering the service will
not furnish a ground for dismissal.
603. Indecent conduct, though not amounting to positive
immorality, and obscene or blasphemous conversation, if persevered
in by the servant, after remonstrance by the master, is
a good ground of dismissal. A tutor who had used obscene
language to the children whom he taught, was held to have been
justifiably dismissed, and his salary was declared to be forfeited.1
604. Family Secrets.—Maliciously spreading defamatory reports,
or disclosing family secrets, to the prejudice of the master
or his family, will justify the dismissal of a servant.
605. Trade Secrets.—It is not uncommon in manufactures for
the master to be possessed of a method, or "trick," unknown to
other tradesmen, and on which his superiority and fortune
depend. The servant, at hiring, is usually bound to secrecy on
this subject; and if he reveal anything on which he has promised
to be silent, he may not only be dismissed, but will be liable in
damages.
606. The Servant's Earnings belong to the Master.—During the
hours of work, which, in the case of domestic servants, includes
all hours not devoted to necessary rest, the servant's time and
1 Fraser, ii. p. 414.
labour belong to the master. If, therefore, the servant, while
hired exclusively to one person, should, without his employer's
consent, hire himself to another, all his earnings belong, in strictness,
to the first employer. "Whatever difficulty," said Lord
Ellenborough, "there might be in the master's recovering the
earnings of his servants, it seems established that he may retain
them when paid into his hands, as he is equitably entitled to
them, and his right can least of all be controverted by his servant.
The point has been decided in the case of a master of a ship who
had given a part of his personal services to one who was not
the owner.1
607. A clerk, or servant, may legally inform his master's
customers that he is about to commence business on his own
account, and solicit their future patronage.
608. Inventions by a servant belong to him, unless there is a
contract between him and his employer, providing either expressly,
or by necessary implication, that inventions by the servant
in the course of his service should belong to the master.
609. The Servant is bound to accompany the Master.—Where
the service has relation to the person more than to the place,
the servant, as a general rule, is bound to attend the master
wherever he goes. The obligation which thus lies on domestic
servants of all ranks does not exist in the case of a ploughman
hired to labour a certain farm, or a workman engaged to work
in a particular factory.
610. Even as regards the former class the rule is not without
exception. No servant is bound to go to a foreign country,
seeing that he is there beyond the protection of British law, and
in circumstances, it may be, very different from those under
which he would have lived at home. Whether England or Ireland
would now be held to be foreign countries to this effect, we must,
in opposition to the high authority of Mr Bell, regard as more
1 Campb., 529.
than doubtful; the more so that our law of master and servant
scarcely differs from that of England.
611. In case of the servant being carried to England or Ireland,
or even to a distant part of Scotland, he would probably
be found entitled to the expenses of his journey in returning at
the termination of his engagement. Were he dismissed for misconduct
the reverse would probably be the case, as the master
might possibly have returned and carried him along with him,
before the termination of the engagement.
612. Admonition.—Where the offence has been slight, though
belonging to the class of offences which warrant dismissal, the
master is bound, in the first instance, to try the effects of admonition.
If this be slighted, repetition of a very small offence will
constitute a grave transgression.
613. Wages due on Dismissal.—The general rule is, that
righteous dismissal infers forfeiture of wages. But this rule is
one which cannot always be applied with strictness, and the
courts have generally been guided by the following principles:—
Where the cause of dismissal, though sufficient, is light, the servant
will be entitled to wages during the time he has served, or
part thereof. On the other hand, if it has been grave, such, for
example, as an attempt on the part of a man servant to debauch
a woman servant, or even deliberate and insolent disobedience to
a lawful order, the wages, both past and future, will be forfeited.
Again, the circumstances may be such as to sanction
leniency to the extent of finding wages due for the whole period
of the contract, refusing only board wages. A case in which
board wages also were given would scarcely be one for dismissal.
614. A fault, in order to form a bar to wages, must be mentioned
at the time; and the master will not be held entitled to
allow the service to be completed, and at the end of it to plead a
breach of contract as a defence to the servant's claim for wages.1
Fraser, p. 423.
VI.—Obligations of the Master.
615. The master is bound to receive the servant, and to allow
him to continue in his service till the termination of the contract.
He is bound to protect him, and treat him with patience and
moderation; and if intemperate language or threats of personal
violence be habitually used to him, and still more if lie be treated
with such severity as to destroy his happiness or comfort, a Court
of law will interfere and find the servant entitled to his discharge.
Even the wanton imposition of unnecessary labour, if carried to
a great extent, would be held to be a violation of the contract
by the master; but it is impossible to assign the point at which
the master's judgment would no longer be regarded as the
measure of what was necessary or reasonable. Every case of
this kind must be determined on its own specialties, and no one
decision can form a precedent for another.
616. Personal chastisement.—It was the opinion of Blackstone,
and seems to be consistent with our law, that a master may correct
an apprentice or very young servant, more especially a male
servant, provided it be done with moderation; but if the master
or master's wife beats any servant of full age it is a good cause
of departure.
617. Attempting the honour of a female.—A female servant is entitled
to leave her master's service if he has attempted her
honour. In such a case the master will be liable for wages and
board-wages for the whole period of the engagement, and not
unfrequently in damages also.
618. Falsely accusing servant of dishonesty.—If the master should
fail in proving a charge of dishonesty against the servant, the
latter will be entitled to quit the service, and to claim wages and
board-wages for a period which will be regulated by the circumstances
of the case.
619. Food and lodging.—The master is bound to supply
domestic servants with wholesome food and lodging, suitable to
their condition. But even where a particular kind of food has
been promised, the master will not be bound to furnish it or pay
the full value if, from unforeseen circumstances, it has risen to an
extravagant price.
620. The master may compel a male servant to reside out of
his house on paying for his lodging, but not a female servant,
because it is implied in her contract that she shall have the protection
of her master's house and family.
621. Medical attendance.—There has been no decision of the
Supreme Court in Scotland, as to the liability of the master to
furnish medical attendance; and, in cases of ordinary sickness,
not arising from the service, and over which he had no control,
the learning of lawyers has been to the effect that he would not
be liable. Where the illness has arisen from a hurt sustained in
the service, the master will be bound to supply a medical attendant;
but he will not be bound to pay for one whom the servant
has selected without his knowledge, and continues to employ
without his consent. Even in this case, however, if the medical
man has been called on a sudden emergency, it would seem that
the master will be responsible for his attendance in the first instance;1
the principle being that he was entitled to rely on the
master's credit.
622. In what case is the master liable for injuries sustained by a
servant in the discharge of his duty?
623. The master must conduct his business in such a manner
as not recklessly to endanger the lives of his servants; and if he
act rashly and injury follow in consequence, he will be liable in
damages.
624. In order to entitle the servant to damages, however, it is
necessary that positive misconduct be brought home to the
master.
Cooper v. Philips, Carrington and Payne's Reports. Vol. iv. p 581.
625. Where a servant was injured by the breaking down of a
carriage in consequence of a defect of which the master was not
aware, he was not bound to make reparation, because "he is not
responsible for the negligence of his coach-maker or harness-maker."
The master's obligation is discharged when he has
provided for the safety of his servant "according to the best of
his judgment, information, and belief."1
626. In strict accordance with this principle, it has been recently
held by the House of Lords, overturning several decisions
of the Scotch Courts, that a master is not liable in damages to
one servant for injury caused by the negligence of another servant,
if the latter servant, when selected by the master, was a
suitable person for the employment in which he was engaged.2
627. The principle laid down by Lord Cranworth, and followed
by the House was, that when one workman enters into an
engagement in which many other fellow-workmen are employed,
he, in general, knows the risks he is exposing himself to; and
he knows, moreover, that they are risks of a kind that are more
within the immediate control of the servants themselves than of
the master.
628. Liability of Master for Injury by a Servant to a Third Party.—
The opposite result will follow where the person injured is a
stranger. In this case all that is necessary to render the master
responsible is that it shall be proved that the servant was guilty
of negligence, and that he was engaged at the time in the ordinary
business of his master.
629. If the employment in which the servant was engaged be
of the nature he was hired to, the master's liability, where
such exists, will not be taken away by the fact of his having
given no express orders for the special act out of which the injury
arose or his not having been aware of its performance.
1 Priestly v. Fowler, iii, Meason and Wilsby, p.1
2.Bartonhill Coal Co. v. Mrs Reid, June 17, 1858.
630. But if the act was one which the servant was specially
ordered not to do, even though lying within the line of his
ordinary duties, the master will not be liable for the consequences.
631. The same principles apply whether the injury arose
from negligence or unskilfulness.
632. But where the damage arose from a wrong wilfully committed
by the servant, the master will not be responsible, for no
man can be responsible for another man's wrong doing. On this
principle the master will not be liable for trespasses committed
by his servants, nor for injuries caused by their passion or intemperance.

633. A superior will not be responsible for the tortuous acts of
an inferior acting in his absence, and whom he has not appointed.
Thus, the captain of a man-of-war, or even of a merchant ship,
will not be liable for injury caused by an officer commanding
during his necessary or warrantable absence.
634. Where a crime is committed with the master's knowledge,
or by his command, both master and servant are responsible, both
civilly and criminally; the principle of the servant's responsibility
being that no man is bound to commit a crime though commanded
by another.
635. Liability of Master for Contract by Servant.—The master is
not bound by a contract entered into by the servant unless it fall
strictly within the limits of his commission. When the servant
contracts in his master's name, either in a matter falling wholly
beyond his commission, or when exceeding in degree the powers
which he has received, he binds not his master, but himself, either
wholly, or to the extent of the excess.
636. Obligation to pay Wages or Hire.— In all cases of service
this obligation is presumed on the master's part, and, consequently,
an express or implied understanding must be proved
before it will be held that the service was gratuitous or for less
than the wages which are usual in the trade or occupation. But
if the parties have gone on for sometime at a certain rate differing
from that of the trade, they will be held to have established
an exceptional usage, which, in their case, will overcome the
usage of the trade. Where neither usage of trade nor usage of
parties can be proved, the Court will give to the servant what, in
the exercise of a sound discretion, they consider to be the value
of his services, or they will leave the matter to a jury.
637. Where wages have been fixed by express agreement, no
services, however zealous, will entitle the servant to claim an
increase over the sum specified, unless they have been of such a
nature as to take him out of the contract, or unless he can establish
a new contract, express or implied.
638. Interest on Arrears.—The servant is entitled to interest
on the arrears of his wages so long as they remain unpaid. But,
it is said that if the wages be not fixed, interest will run only
from the date of the decree by which the amount is determined.1
639. Deductions for Damage by the Servant.—No deductions
can be made from the wages of the servant for damage which he
may have occasioned, unless it arose from conduct which was
culpable, either in the sense of being malicious or negligent and
careless. Any accidental destruction of furniture, crockery, or
the like, not placeable to culpable negligence, cannot therefore
be founded on as a claim against the servant, unless it can be
proved that there was a positive stipulation that the servant
should pay for such losses out of his wages. It is not uncommon
to provide against such contingencies in the case of waiters at
inns and taverns, by insisting that the servant shall lodge a deposit
from which all damage may be liquidated.
640. If the period of service has been accomplished without
any challenge being made, the master's plea of misconduct in bar
of a claim for wages will not be listened to.
641. Payments and Presents to Servants during the Engagement.—
1 Fraser i., 428.
Money given by the master to the servant during the period of
service will not be allowed to be deducted from the wages unless
such appear to have been the understanding of the parties. Such
sums will be regarded as presents, and more especially so if the
servant be a minor, or if the object was the purchase of what
were not strictly necessaries. Thus, a master having advanced
money to his servant girl to purchase a silk dress, it was held
that he could not deduct it from her wages; and the same was
the case with money paid for coach fares for the servant's mother.
So also jewels given to a servant will be regarded as presents,
whereas ordinary clothes may be stated as payment pro tan to of
wages, more especially in those cases of implied contract where
no wages have been expressly stipulated or agreed to.
642. Hiring by an Overseer or other Agent.—The question of
wages will not be affected by the fact that the hiring was not by
the master personally. If the agent was capable of contracting
for the principal he was capable of binding him for the amount
of wages that he agreed upon.
643. When Wages must be Paid.—In the case of domestic servants
the custom is for wages to be paid half-yearly, whatever
may be the period of service agreed on; and, in the absence of
positive stipulation, they will be due accordingly. With regard
to other servants equally, the matter will be regulated by custom,
though in their case it is less consistent.
644. Clothes and Livery.—It forms no part of the master's obligation
to find clothes or livery for the servant; and though he
agree to do so, the clothes will not be held as part of the wages,
but will remain the property of the master.
645. Servant's Lien for his Wages.—A tradesman may retain
materials which have been put into his hand for the purpose of
executing a piece of work till payment be made to him of the
expense which he has disbursed on it, and of the value of the
workmanship which he has expended. But, if the workman yield
up possession of the subject by delivering it to the party who
employed him, his right of retention is at an end, even though he
should afterwards recover the possession. If the material remains
in the premises of the master there is no lien, because the workman
never obtained possession.
646. Arrestment of Wages.—Servant's wages, in so far as they
are alimentary,—that is to say, in so far as they are necessary for
a suitable aliment during the current term,—are not arrestable;
but arrears and excess over a suitable aliment may be arrested.
This rule applies to remuneration for all sorts of service. It has
been found to apply to a professor's salary, to that of the rector
of an academy, of a pursuivant-at-arms, and no doubt would
apply to that of a judge of the Court of Session,1 or a member
of the administration. The amount necessary for a suitable aliment
will be determined entirely by the peculiar circumstances of
each individual ease.
647. Prescription of Wages.—Servant's wages fall under the
triennial prescription; or, in the words of the statute, "unless
he pursue within three years, the creditor shall have no action,
unless he either prove by writ or by oath of the party,"2 i.e. the
defender.
648. This Act applies to servants of all kinds—to superior as
well as to inferior servants. If no period has been fixed for payment
of the wages, the prescription runs from the termination of
the services rendered, when the wages are held to have been due.
649. Unless there be a positive stipulation to the contrary,
every year's or term's wages run a separate prescription, and
this, although the hiring should have been by written agreement,
and for a series of years.
650. The prescription is pleadable after the master's death by
his heir.
651. Death of Master or Servant.—If the servant dies before the
1 See, however, Erskine, p. 732, Ivory's edition. 2 Stat. 1579, c. 83.
term, wages are due to his executors for the period he has served.
If the master dies before the term full wages up to the term are
due, and if the time for giving warning has expired, wages, and,
in some cases, board, are due to the servant for another term.
The master's executor may, however, claim the services of the
servant.
652. Competition between Servants and Creditors.—The right of
the servant to wages is one of the privileged debts recognised by
the law of Scotland; and as such is entitled to a preference in
competition with ordinary debts. This privilege is confined to
farm and domestic servants; and the rule has been construed so
strictly as to exclude, on the one hand, carpenters and smiths,
though doing work on the farm during the year at a slump sum;
and, on the other, clerks, governesses, tutors, artizans employed
in the establishment and the like.
653. Giving a Character.—However long and faithfully the servant
may have served, the master is not bound, at the close of
his service, to testify to his honesty, sobriety, or skill. The duty
of giving a character being one which, however binding in
morality, it has not been found convenient to enforce by positive
law.
654. But, if given, the character must be strictly true; in
which case the master will be held perfectly justifiable, even
though it be prejudicial. Such a character, however, must in
general be asked for, as the master is not entitled needlessly and
ultroneously to publish his servant's infamy; and, in that case, it
will be for the servant to prove its falsehood, not the master to
prove its truth. But there are cases in which the master would
be fully justified in stating, unsolicited, facts to the prejudice of
his servant, though, in doing so, he might undertake the obligation
of proving them. "I do not mean to intimate," said Lord
Alvanley, "that if a servant were strongly suspected of having
committed a felony while in the master's service, that master is
not at liberty to warn others from taking him into their service."1
Where an action of damages is raised by the servant in such a
case, it will be a question for the jury whether the defendant
acted bona fide, with the intention of communicating facts which
the other party ought to know, and honestly intending to discharge
a duty, or whether he has acted maliciously and simply
for the purpose of injuring the servant.2
655. If the character, whether solicited or unsolicited, be false,
the master will be liable in damages to the servant; the falsehood
being held to imply malice. Even if true, the character,
if prejudicial, must not be more so than the circumstances render
necessary. Acts of petty dishonesty, such as are too common
amongst servants, will not entitle the master to brand the servant
as a thief. The safe course, in such circumstances, is to state the
offence, and not to apply to it a nomen furls which may possibly
convey an erroneous impression as to its magnitude.
656. Damages for giving False Character. in the Servant's Favour.—
There is reason to fear that, partly from thoughtless good nature,
and partly from a selfish desire to get rid of a bad servant without
the annoyance of a dispute, false characters are given in
favour of servants very much more frequently than to their prejudice.
It is desirable that masters and mistresses should keep
in mind that they may render themselves liable in reparation of
any damage which can be shown to be the direct result of thus
perpetrating on a stranger a wrong which is manifestly within
the reach of the common law.
657. Is the Master entitled to Assign the Servant to Another?—
Where the nature of the service is such as to render a choice
of person (delectus personce) of the essence of the contract, the
master cannot assign the servant to another, nor give to a new
master a right to his services along with himself. He cannot, by
1 Rogers v. Clifton, 3 B. and P., p. 592.
2 Pattison v. Jones, 8 B. and C., 584.
assuming a partner, give him the rights of a master over a domestic
servant, a governess, or even a clerk. It is part of the
agreement that the servant shall do the work of the master who
hires him, and of him alone.
658. The case of artizans is different. The assumption of a
partner in trade is so ordinary an occurrence that it is regarded
as a contingency contemplated by the contracts into which
tradesmen enter, and which consequently will not free their servants.
But, if the original master quits the firm, it would seem
that the servants are not bound to remain.
659. Where the original engagement was with a company or
corporation there never was an individual master at all, and
therefore whilst the place, the time, and the nature of the employment
remain unaltered, the servant will not be freed from his contract
by an entire change of the partners. But even companies
cannot assign their servants to other companies or individuals.
There is a distinction also between a case in which the contract
is terminated by a voluntary act of the master, and one in which
its termination arises from circumstances over which he had no
control. Servants who would not be bound to transfer their services
in the former case will often be bound to do so in the latter.
Where, for example, a master dies, his domestics will be bound
to continue till the termination of their engagements in the service
of whoever may become the head of his family, and to yield
him the same obedience and respect as if he had been their original
master.
660. Termination of the Contract by Master's Death or Bankruptcy.—In
these, as in all other cases where the contract has
been dissolved from circumstances which were beyond the master's
control, the damages to the servant will be restricted to the
smallest possible amount. Wages will be given till the next
term only, though the contract may have been for years, and
the servant is bound at once to look out for other employment,
on procuring which his claim for wages from his former master
will cease. In claiming the full fee for the current term, it will
be incumbent on him to show that he used due diligence to
obtain another engagement, and that he has been unsuccessful.
661. The Servant is not bound to return when improperly dismissed
from the Service.—It will not be a competent defence to the master
against a claim for damages by the servant, to offer to receive
him again into his employment if he has been improperly dismissed.
The contract, once broken, cannot again become a
binding engagement without the consent of both parties.
662. Damages for enticing Servant to leave.—A master is entitled
to damages from a third party, who, in knowledge of a subsisting
engagement, entices a servant away from his service. The
rule is of importance in manufacturing districts, where the possession
of many hands at particular moments is often an object
of so much urgency as to occasion rivalry amongst employers.
VII.—Termination of the Contract.
663. Warning.—When no warning has been given by either
party a revocation of the contract by tacit consent will be presumed.
The period for which the renewal has taken place will be
determined by the length of the previous engagement, and the
presumption in law applicable to the particular kind of service.
Where the original engagement was in writing, and for more
than a year, the renewal will be only for one year, as a tacit
cannot exceed a verbal contract.
664. There is no formal style of warning. In practice it is
almost always verbal, and it is not necessary that it should even
be in express words. If a gentleman tell his coachman that he
is not to keep a carriage after Whitsunday, that is sufficient
notice to the coachman that his services will not be required
after that time. On the other hand, the servant, by entering
into a contract, the performance of which is incompatible with
the further discharge of his duty to his master, by intimating
the new engagement to the master, is held to give sufficient
notice of his intention to quit. Enlistment on the part of a male,
or marriage on that of a female servant, may be mentioned as
examples.
665. It has been said that warning must be given forty days
before the termination of the contract; but, though this may
be required by custom in the case of servants engaged for
lengthened periods, it certainly would not be requisite where
the engagement was from month to month. In such a case a
month's warning would certainly be a sufficient answer to any
claim for damages on either side.
666. Time to look out for new Place.—A servant, after having
given or received warning, is entitled to a little liberty to look
out for another situation. Without this the object of the warning
would be defeated, and there can be no doubt that by refusing
it altogether the master would render himself liable in
damages to the servant. On the other hand, the servant must
make those needful inquiries at the time and in the manner that
will least incommode his master or his family. If the master
has fixed an hour when it is possible for him to accomplish his
object, he must take that hour and none else.
667. Old and New Style.—Where there is neither covenant
nor uniform and notorious usage to the contrary, the commencement
and termination of the contract will be regulated by the
new style.
668. Servant's obligations to Depart and Deliver up Property.—
Where the servant has been dismissed, the master may expel
him from his house or premises, and treat him like any other
trespasser if he refuse to depart. Even though the dismissal
be illegal, and though the servant should ultimately be found
entitled to damages, he will not be justified in remaining in his
situation in opposition to the commands of the master. The
case might be different if the dismissal, particularly of a female
servant, were to take place during the night, in a foreign country,
or in circumstances which rendered departure dangerous or
impracticable.
669. The servant is bound to quit any separate premises
which he may have occupied as servant, without receiving the
notice to which he would have been entitled as tenant, and he
must also deliver up all the property of his master of every
kind which may be in his possession.
VIII.—Statute Law relative to the Contract of Service.
670. It has been chiefly in the departments of manufacturing
and agricultural labour that the provisions of the common law
have been found insufficient to regulate the relations of master
and servant; and the enactments which have been framed with
a view to supplying this defect, have had reference to the circumstances
of England more especially. The prior statutes on the
subject have been practically superseded by the 4 Geo. IV., c. 34,
of which the chief object is to give to masters a remedy against
the absconding of their workmen.
671. The statute applies expressly to servants in husbandry,
artificers, calico-printers, handicraftsmen, miners, colliers, keelmen,
pitmen, glassmen, potters, labourers, and other persons entering into
written contracts of service. In case of any such person either
declining to enter into or commence the service, or absenting
himself before the termination of the contract, or otherwise neglecting
to fulfil it, it shall be lawful for any justice of the peace,
upon complaint made to him upon oath by the employer, or his
steward, manager, or agent, to issue a warrant for the apprehension
of the servant complained of, to inquire into the nature
of the complaint, and on being satisfied that it is well-founded,
either, (1) to commit him to the house of correction, there to be
held to hard labour for a period not exceeding three months, and
to abate a part of the wages corresponding to such period of confinement;
or (2) to punish the offender by abating the whole or
any part of his wages; or, should he arrive at an opposite conclusion,
to discharge the servant from his contract of service without
fine or punishment, which discharge shall be given under the
hand and seal of the justice gratis.
672. By the subsequent statute, 10 Geo. IV., c. 52, the provisions
of this Act are extended to persons employed in several
additional branches of manufacture. The general "misconduct
or misdemeanour" which will bring the servant within the operation
of the statutes, must be "in the execution of the contract or
otherwise respecting the same;" for the servant is not liable to
be punished under them for every act of misconduct. In addition
to masters and servants, the statutes apply to apprentices; and
complaints against them for disobedience and idling away their
time, have been found competent under the clause which applies
to general misconduct.
673. The workman must give a fair day's work; and as the
Court has held review on the merits to be incompetent, the question
as to what is a fair day's work must be determined by the
justice. A collier, who had been in the habit of putting out
thirteen loads of coals daily, refused to put out more than eight
loads. This the justices held to be misconduct, under the
statute, and the Supreme Court declined to interfere.1
674. This statute has been found in practice to be a source of
much litigation. To meet the sudden exigencies of desertion, the
form of application is hastily drawn up, and it frequently happens
that a blunder has been committed either in its preparation or in
the subsequent proceedings. The result is a bill of suspension
1 Blackwood v. Finnie, 1st June 1844; 2 Broun, 206.
and liberation to the Court of Justiciary, and probably an action
of damages against the master.
675. It has been positively decided that none of the statutes
on this subject refer to menial or domestic servants.1
676. In order to entitle the master to raise an action against
the servant, under the statutes, for not entering to his service, the
contract must be in writing. If the servant has already entered,
it is indifferent whether it be written or verbal.
677. Complaints by servant against the master.—There is an
earlier statute (20 Geo. II., c. 19) authorising justices to determine
disputes about wages, and to entertain complaints by
servants against masters, which, if it extends to Scotland,2 may
be regarded as to some extent the converse of the leading
statute to which we have just referred. Unless the money decerned
for under this statute be paid within twenty-one days, the justice
is empowered to issue a warrant to levy the same against the
master by distress. An appeal is allowed to the Quarter Sessions,
whose decision is final.
678. Wages must be paid in current coin.—There are two
statutes-1 and 2 Will. IV., c. 36, and 1 and 2 Will. IV., c. 37—
the object of which is to prevent the very objectionable practice
by masters of keeping stores, and paying their workmen by allowing
them to run up accounts for provisions, with which they
supplied them, of an inferior quality, and at an extravagant price.
679. By the second of these statutes it is provided that all contracts
of hiring with artificers must be in the current coin of the
realm, and that there must be no stipulations as to the manner
in which the wages shall be expended. All wages are to be paid
in coin; it being declared that the servant may recover "the
whole, or so much of the wages as shall not have been actually
1 Normant v. Wilson, 25th January 1845; ib. 375.
2 Mr Fraser, vol. ii., p. 494, and elsewhere, holds this statute to extend to
Scotland; but sec. vi. renders the point at least doubtful.
paid to him by his employer, in the current coin of the realm."
It is further provided, that no employer shall have an action
against his artificer for goods supplied to him on account of
wages. Penalties, not exceeding ten nor less than five pounds
for the first offence, are imposed; and though it is provided that
one partner shall not be liable in person for the offence of his
copartner, the partnership property is to be so liable.
680. The statute applies exclusively to artificers, a list being
furnished of the classes of manufacturing labourers falling under
its provisions; and it is expressly provided, that "nothing herein
contained shall extend to any domestic servant or servant in husbandry."

681. As exceptions to the general enactment, the employer is
allowed to supply medicine or medical attendance, fuel, materials,
tools or implements, and food to be consumed by horses employed
in the trade. He may let a tenement to the artificer, or supply him
with victuals dressed and consumed under his own roof. Another
exception is to the effect that the employer may advance money, to
be contributed by the artificer to a saving's bank or friendly society,
for his relief in sickness or for the education of his children.
682. Arbitration between master and workmen.—The disputes
for the determination of which by arbitration provision has been
made by the Legislature, are the following: 1st, As to the price
of work, whether arising as to payment of wages, hours of work,
injury done to the work, delay in finishing it, or bad materials;
2d, As to expense which may have been occasioned to the workmen
by the purchase of new implements, required for the execution
of a new pattern; 3d, As to the dimensions and quality of
goods; 4th, As to remuneration for pieces of extraordinary
length; 5th, As to various matters connected with the cotton
manufacture; and 6th, All disputes generally arising out of the
particular trade or manufacture, and which cannot be otherwise
determined.
683. All these disputes may be referred to any justice of the
peace, or other magistrate, by a writing under the hands of the
master and workmen, for his summary and final determination;
and if the parties do not agree to such reference, either of them
is entitled to complain of the other's refusal; in which case the
magistrate may summon the party refusing to appear before
him. Should he fail to appear, or to remove the cause of complaint,
the justice may then be called upon to nominate referees,
consisting of from four to six in number,—one half being masters,
agents, or foremen, and the other half workmen; the master
choosing one of the former, and the workman one of the latter
half.1 If the arbiters cannot decide in three days, the matter
reverts to the magistrate, whose decision is final.
684. The Acts further provide for the enforcement of any
other method of arbitration which the parties may agree to
adopt.
685. The leading enactment on this subject is 5 Geo. IV.,
c. 96 (21st June 1824); which is supplemented by 7 Will. IV.,
and 1 Vict., c. 67, and 8 and 9 Vict., c. 128; the latter having
reference to silk-weavers exclusively.
Restrictions on the Employment of Women and Children in
Factories, etc.
686. The low rates at which the labour of women and
children may be obtained, having led to their employment in
various branches of manufacture to such an extent and under
such arrangements as were hurtful both to health and morality,
various attempts have been made to mitigate the evil by
legislation. The most important of these enactments is 7 and 8
Vict., c. 15, "To amend the laws relating to labour in factories,"
and 8 and 9 Vict., c. 29, "To regulate the labour of children,
young persons, and women in print-works." The Acts 3 and 4
1 5 Geo. IV., o. 96.
Viet., c. 85, "For the regulation of chimney-sweepers," and
5 and 6 Vict., "To prohibit the employment of women and girls
in mines and collieries, to regulate the employment of boys, and to
make other provisions for persons working therein," have been
dictated by the same benevolent motives.
Combinations among Workmen.
687. Combinations to force masters to agree to workmen's
demands, or to intimidate other workmen, are declared to be
illegal by the 6 Geo. IV., cap. 129; and justices and sheriffs
are empowered to punish those who belong to them with imprisonment
for any time not exceeding three months, with or
without hard labour. The statute does not prohibit meetings
either of masters or workmen for the purpose of consulting on their
respective interests, and determining the rates of wages or hours
of work. Its provisions strike only against cases in which either
breach of contract or violence is contemplated by the individuals
associated, or intended to be forced on their fellow-workmen.
Seamen.
688. In the Merchant Shipping Act (17 and 18 Vict., c. 104),
the Merchant Shipping Amendment Act (18 and 19 Vict., c. 91),
the Passengers Act (18 and 19 Vict., c. 119), and others of minor
importance, we now possess a code of mercantile legislation
tolerably complete, and far too minute and complicated to be
presented in a work like the present. The relations between
seamen and their employers and masters, which alone belong to
this branch of law, are regulated by Part III. of "the Merchant
Shipping Act, 1854" (17 and 18 Vict., c. 404, secs. 109 to
290).
689. In all ships, except those of small tonnage engaged in
the coasting trade, the master is bound to enter into a written
agreement with every seaman whom he carries to sea. The
seaman undertakes to serve on board the ship during the voyage,
the duration and character of which must be specified in the
agreement, for certain specified wages and provisions, to conduct
himself in an orderly, faithful, and honest manner, to be diligent
and obedient to the master, or to any person who shall succeed
him in command, and to the officers of the ship. "The breach
of these duties, and of this engagement," says Mr Abbot,1 " consists
in desertion, quarrelsomeness, turbulence, mutiny, disobedience,
neglect of duty, drunkenness—offences which, according
to the frequency of their occurrence, the length of their continuance,
and their circumstances in each particular case, besides
the penalties and forfeitures enacted by the statutes, may at
common law justify the personal restraint and correction of the
mariner, or subject him to dismissal and forfeiture of wages."
690. However manfully and efficiently the mariner may have
performed his duty, and however great may have been the perils
or actual sufferings to which he has been exposed, he is not
entitled to any remuneration beyond his covenanted wages.
For these the ship is pledged to him. "He has a right to cling
to the last plank in satisfaction of his wages." The old maxim,
that "Freight is the mother of wages," has been abrogated by
the Merchant Shipping Act (17 and 18 Vict., c. 104), and
wages may now be recovered, either by seamen or apprentices,
even though no freight has been earned by the vessel. But in
cases of shipwreck, the mariner's claim for wages will be barred
by proof that he did not exert himself to the utmost to save the
ship, cargo, or stores: sec. 183.2
691. The following are the regulations of the statute as to
the tune of payment:-
692. "In the ease of a home-trade ship, the wages shall be
paid within two days after the termination of the agreement, or at
1 Law of Merchant Ships and Seamen, p. 135.
2 See Digby Seymour's Merchant Shipping Acts, p. 123 et seq.
the time when the seamen shall be discharged, whichever shall first
happen; and in the case of all other ships, except ships employed
in the southern whale fishery, or on voyages for which the seamen,
by the terms of their agreement, are compensated by shares in
the profit of the adventure, the wages shall be paid, at the latest,
within three days after the cargo shall have been delivered, or
within five days after the seaman's discharge, whichever shall
first happen; and in all cases the seaman shall, at the time of
his discharge, be entitled to be paid on account a sum equal to
one-fourth part of the estimated balance due to him; and if any
master or owner shall neglect or refuse to make payment in the
manner required, without sufficient cause, he shall, for every
such neglect or refusal, pay to the seaman the amount of two
days' pay for each day, not exceeding ten days, during which
payment shall, without sufficient cause, be delayed beyond the
respective periods aforesaid, and such sum shall be recoverable
as wages." (Sec. 187.)
693. When a seaman is left on shore at any place abroad in
consequence of being unable to proceed on the voyage, the master
is to deliver to certain functionaries, named in the Act, a just and
true account of the wages due, and to pay the same to the seaman,
either in money, or by a bill drawn upon the owner of the ship.
694. In order to prevent desertion, and to preserve the wages
of seamen for the benefit of their families, the Legislature has
restricted the sum which may be paid to them in parts beyond
the seas to one-half.
695. By deserting the ship, the seaman forfeits not only his
wages, but also all clothes and effects he may have left on board;
and if the master has been forced to pay higher wages in order
to procure a suitable substitute, the difference will form a ground
of claim against the seaman. If the seaman, having left the
ship with leave from the master, refuses to return, his wages are
forfeited.
696. Arrival of the ship in port does not terminate the agreement;
and by departure without leave from the master, or other
just cause, before she is placed in security, the mariner subjects
himself to forfeiture of a month's wages.
697. The seaman is entitled to his food, and want of provisions
will justify him in leaving the ship.
698. Cruelty on the part of the master, or an entire change
in the destination of the vessel, will also justify departure.
699. It is not desertion if a seaman leave his ship for the purpose
of forthwith entering the royal navy; and stipulations for
the purpose of defeating the proviso of the Act to this effect are
not only void, but they subject the master or owner who has
caused them to be inserted in the agreement to a penalty of L.20.
700. It has been decided by the court of Admiralty, that if a
woman does the work, she is entitled to claim the wages of a
marine.1
CHAPTER V.
MASTER AND APPRENTICE.
701. The term apprentice is derived from the French word
apprendre, to learn; and the contract of apprenticeship accordingly
is one whereby one person becomes bound to teach and
another to learn a certain trade or profession.
702. The obligation on either side may be either gratuitous,
or for a pecuniary consideration.
I.—Origin and Nature of the Contract.
703. Apprenticeship originated in those guilds and corporations
into which craftsmen entered, during the middle ages, for purposes,
partly of monopoly, and partly of mutual protection against
feudal oppression. In all stages of society, more particularly in
1 Jane and Matilda Chandler, i. Hogg, Ad. Rep. 187.
its earlier and simpler stages, trades and professions are frequently
hereditary, and even where such is not actually the case,
the relation between master and apprentice bears so close an
analogy to that of parent and child, that apprenticeship has
always been reckoned amongst the domestic relations. What
was at first a compulsory, has now become a voluntary contract.
Except where the incorporations of towns still insist on their
ancient privileges; and in the case of writers, who deny admission
to their body unless an indenture be produced.
704. Whether voluntary or obligatory, the rules of law in regard
to apprenticeship are the same.
705. They must be embodied in a written instrument, regularly
signed and tested, which is termed an indenture, from the English
practice of cutting it in two in a waving line, so that when the
one half, which is retained by the master, is applied to the other
half retained by the apprentice, the two indented edges shall tally.
706. No technical words are necessary to constitute the relation
of master and apprentice; though the decisions both here
and in England seem to be to the effect, that teaching on the one
hand and learning on the other must be expressly set forth as the
primary objects of the contract, and will not be presumed, from
the respective ages or other circumstances of the parties, or the
nature of the employment. It is necessary that there should be
some such mode of distinguishing between apprenticeship and
service, because, if a person who is an apprentice be punished
under the statutes as a servant, or vice versa, the whole proceedings
will be illegal, and an action of damages will lie against the
complainer. "The contract with an apprentice," said Lord
Jeffrey, "though it may include a contract to work for hire, is
primarily a contract to teach and to learn a certain handicraft."1
707. Who may enter into an Indenture.—An apprentice is
generally under age. If he be a pupil (i.e. under fourteen), the
1 Frame v. Campbell, 9th June 1836.
indenture is signed by his father as his administrator-in-law,
or his tutor, he being himself incapable of contracting. If he
be a minor (i.e., from fourteen to twenty-one), his father, or his curators,
if he have them, must be parties to the indenture, but
they only consent to the obligations which the apprentice, in this
case, takes expressly on himself. If he have neither father nor
curators, he may enter into the contract without them.
708. If the minor deceive the master, by representing either
that he has no curators or that a wrong person is a curator, and
that person sign the deed along with the minor, it will be binding
on the minor.
709. In all these cases the pupil or minor may be restored
against the indenture, if he can prove that he has suffered lesion
by it; for example, if it binds him to a trade obviously beneath
his station, or imposes obligations of a harsh, griping, or immoral
nature.
710. Contract must be in Writing.—Long continued service or
teaching on trial will complete a written contract of apprenticeship,
although in many respects informal, but it will never supply
the absence of writing.
711. Stamp.—The indenture must be stamped; the amount
of duty increasing in proportion to the premium paid or the
value of the interests involved. If the apprentice-fee is not accurately
set forth, the indenture will be void.
712. By the Merchant Shipping Act (17 and 18 Vict., c. 104,
sec. 143), all indentures of apprenticeship to the sea-service are
exempted from stamp duty; and a similar exemption has all
along existed in the case of pauper children apprenticed by the
parish or by a public charity. In these cases it is unnecessary
to state the premium.
713. Where there is no premium the duty is 2s. 6d.
714. Indentures may usually be stamped after the date of
their execution, during periods which vary according to circumstances,
but the safer course is to write them on stamped
paper.
II.— Obligations of Master and Apprentice.
715. Almost all corporations and societies have peculiar arrangements
with reference to their apprentices, and to these, if
they do not interfere with law, the Court will give effect.
716. The apprentice cannot be called upon to perform menial
or other duties unconnected with the trade of his master, unless
they be stipulated in the indenture.
717. A mason, who kept his apprentice constantly hewing
stones, without teaching him to build, was found to have committed
a breach of contract.
718. The master generally cannot fulfil the duty of teaching his
apprentice unless he attends to his own business; but if he have a
skilful partner his personal superintendence will not be required.
719. The master is not entitled to transfer his apprentice to
another, unless it be the custom of the trade to do so; but, in
many trades, the custom is so well established and so notorious,
that parties would certainly be held to have had it in view at the
time of contracting.
720. Enlisting.—By the common law of Scotland the apprentice
cannot enlist, but this is modified by the Mutiny Act, which
is passed annually. The following is the provision:—"No
master shall be entitled to claim an apprentice, who shall enlist
as a soldier in Her Majesty's service, unless he shall within one
calendar month after such apprentice shall have left his service,
go before some justice, and take the oath mentioned in the
schedule to this Act annexed (to the effect that the apprentice
is bound to him); and unless such apprentice shall have been
bound, if in Scotland, for the full term at least of four years, by
a regular contract or indenture of apprenticeship prior to the
period of enlistment; and unless such contract shall within three
months after the commencement of the apprenticeship and before
the enlistment, have been produced to a justice of the peace, and
there shall have been endorsed thereon, a certificate or declaration,
signed by the justice, specifying the date, where, and the
person by whom such contract or indenture shall have been produced."It
is provided, however, that the master of a marine
apprentice shall be entitled to recover him, "notwithstanding such
apprentice may have been bound for a less term than four years."
No apprentice can be redeemed if he exceeds the age of twenty-one.

721. A person enlisting is always asked if he is an apprentice.
If he declares that he is not, and the master afterwards claims
him, he may be tried by the judge ordinary, and punished. He
is liable to serve as a soldier when his apprenticeship is at an end;
and, if he fails to deliver himself up he maybe punished as a deserter.
722. If the master does not insist in his claim to recover the
apprentice, he will receive, to his own use, so much of the bounty
payable to the recruit as has not then been actually paid to him,
minus two guineas for necessaries.
723. The master is entitled to all the earnings of the apprentice,
whether gained in the service of another or by employment
on his own account.
724. If the apprentice fails to conduct himself with decency,
honesty, and sobriety, the master is entitled to dismiss him, and
to claim damages from his cautioner.
725. On the subject of dismissal the principles already stated
under the contract of service are, for the most part, applicable
to that of apprenticeship.
III.—Dissolution of the Contract.
726. The consent of both parties, if clearly expressed in writing,
will be sufficient to dissolve the contract; and, at the death
of either party, it is at an end.
727. The executors of the master will not be compelled to
refund such part of the apprentice-fee as may be considered a
fair remuneration for the instruction given during his life.
728. Should the contract, on the other hand, be dissolved by
the death of the apprentice, the whole fee remains with the master.
729. The insanity of either party will void the contract unless
it be a merely temporary attack.
730. The master's bankruptcy will put an end to it, and entitle
the apprentice to rank on the sequestrated estate for a suitable
proportion of the apprentice-fee.
731. The marriage of a male apprentice does not annul the
contract; but on the marriage of a female her husband will be
entitled to her person, though he will be liable in damages to the
master.
732. The contract will be dissolved by any occurrence which
renders either party incapable of fulfilling its obligations, whether
the occurrence be voluntary,—as by failing to take out a licence
to practice required by statute, or involuntary,—by becoming
utterly and permanently disabled by bodily disease.
733. An indenture to a company will be binding so long as
one of the original partners is in existence; and, in the case of a
joint-stock company, it will not be at an end though all the
original partners retire, provided no attempt be made to transfer
the apprentice to a different company.
734. Cautioners of Apprentices.—The cautioner binds himself
that the apprentice shall faithfully discharge his duty, under the
penalty of a certain sum to be paid to the master on failure.
735. Cautioners have the benefit of division; but, even before
the passing of the Mercantile Law Amendment Act,1 the master
was not bound to discuss the apprentice before coming on them.
736. Every plea which would be valid to the apprentice as a
defence against an action of damages for breach of contract, will
1 19 and 20 Viet., c. 60, sec. 8.
be valid to the cautioner. If the penalty in the indenture is
greatly beyond remuneration for damages, it will be equitably
restricted by the Court.
737. The cautioner has an action of relief against the apprentice
in all cases in which he is called upon.
738. Statutory Provisions.—The statute 4 Geo. IV., c. 34, and
the other statutes having for their object the settlement of disputes
between employers and employed, and the protection of
woman and children from unhealthy or immoral occupations, are
also applicable to apprentices.'
CHAPTER VI.
HERITABLE AND MOVEABLE SUCCESSION.
I.—Of the distinction between Heritable and Moveable Property.
739. It is indispensable, for many legal purposes, that the line
by which heritable and moveable, or as it said in England, real
and personal property, are distinguished, should be distinctly
traced. Some of these purposes have already been pointed out
in treating of the relations of husband and wife, and parent and
child; but it is in its influence on the laws by which the succession
to property and its transmission are regulated, that the
importance of the distinction which we have mentioned becomes
most apparent.
740. The character of heritable or moveable may belong to
an object, either,—1, from its own nature, i. e., from its being
really immoveable, like lands or houses; or moveable, like money
or furniture;—or, 2, from its relation to a subject which possesses
either of these characteristics;—or, 3, from the destination
of its owner, he having placed it in the position of an accessory
1 Ante, p. 112, et. seq.
to some other object, or declared that in respect to succession it
shall be regarded as possessing one or other of these characters.
741. (1.) Natural Character.—Land, and all parts of land, such
as mines and quarries, and generally things which are naturally
immoveable, are in law heritable. Whatever moves, or is capable
of being moved from place to place, without injury or change of
nature, either in itself or in a subject with which it is connected,
is moveable.
742. (2.) Accessory Character.—Things which are naturally
moveable may become heritable from the relation in which they
stand to immoveable objects.
743. Anything which has been artificially attached to land, so
that it cannot be removed without destruction, or change of
nature or of use, is heritable by accession. Though this accessory
heritable character may be acquired by objects which are
neither built on the soil nor fixed into it, it is generally to buildings
and fixtures in mills, houses, and to objects which are so
fixed, or of such extent that they cannot be removed entire, that
it belongs. Trees, evergreens, and all plants not requiring seed
or cultivation, are likewise heritable, the reverse being the case
with the industrial fruits of the soil. These latter go with the
property of the seed and labour, and are regarded as manufactures,
in which the productive powers of the soil are employed.
Things, on the other hand, which are heritable in their nature,
may become moveable by possessing the character of accessories
to moveable objects of greater importance. A share of heritable
subjects, forming part of the stock in trade of a mercantile
company, is a trust estate in the partners, and moveable.
744. Heirship Moveables.—Such portions of the furniture of a
mansion-house and stocking of a farm as will enable the heir to
keep up the establishment, though moveable in their nature,
become heritable by accession. In moveable subjects that are
counted by pairs, or dozens, such as plate, linen, and the like,
the best pair or dozen, and in cattle the best yoke, go to the
heir on this principle; and the same is the case with the family
seal, and all articles of plate and furniture which possess the
character of "heir-looms."
745. Destination.—Where there has manifestly been a purpose
with reference to any object which, if effected, would have
changed its character from moveable to heritable, or the reverse,
it will be changed accordingly. Thus, materials prepared for
completing the windows of a house, though not yet applied to
that purpose, have been held to be heritable. The same will be
the effect of a positive destination in point of succession either
to the heir or the executor. Books and furniture may thus be
made heritable by destination as regards succession. But the
character thus artificially imposed on subjects by destination,
will not be permitted to change their character as regards the
diligence of creditors.
746. Incorporeal Subjects.—These follow the analogy and share
the character of the corporeal subjects to which they refer.
Thus rights to land, whether of property or liferent, and debts
secured on land, are heritable.
747. Simple personal debts, even though payable at a future
time, with interest from that time, are moveable; as are also all
shares of companies, whether public or private, and government
stock.
748. Arrears of the annual returns of debts and funds, themselves
heritable, are moveable. To this class belong arrears of
rents and feu-duties, arrears and savings of interest on heritable
bonds, reversions of the price of land sold judicially. Even
though secured on land, these are regarded simply as cash in the
hands of the person in right of them.
749. Where lands are sold by the owner the price is moveable,
but the reverse is the rule where the sale is by an apparent
heir, the price in that case coming in place of the lands.
750. Rights having a tract of future time, such as liferents
and annuities, are heritable.
751. Accession.—On the principles of accession, feu-duties and
casualties of superiority, rents of land, interests of heritable
bonds and annuities are heritable, though the arrears, as has
been mentioned, are moveable. Rights connected with, or affecting
lands, though not feudalized, are heritable; such are servitudes,
teinds, patronages, reversions, faculties and rights to
challenge heritable deeds.
752. Destination operates in changing the natural character of
incorporeal rights precisely as in the case of corporeal objects.
Thus the exclusion of executors in a personal bond will make
it heritable. Sums directed to be laid out by trustees on heritable
securities are heritable. Rents of lands and houses vest
and become moveable at the legal terms of Whitsunday and
Martinmas. Interest, where no conventional terms are stipulated,
is in the same position as rent.
753. An adjudication before the legal term will carry the
radical right to the subject, and with it the rent which vests
at the term; arrestment after the term will carry the rent due
at the term; and an adjudger following after an arrester will
be postponed on the rent due at the term previous.
II.—Of Succession in general.
754. A proprietor is allowed, by the law of Scotland, to
dispose both of heritage and moveables by gratuitous deeds
under certain restrictions arising out of the rights of his widow
and children, which have been already explained.
755. But it is where the proprietor has neglected to use this
privilege that the law of succession, properly so called, comes
into operation. In this case the law supplies the omission by
disposing of the estate and effects of the deceased in the way in
which it may reasonably be supposed that he would himself have
disposed of them. As every man is presumed to be acquainted
with the laws of his country, the fact of a man dying intestate is
regarded as equivalent to a declaration, on his part, that he was
satisfied with the arrangements of the law, and wished them to
take effect.
756. The leading distinction between the laws of heritable and
moveable succession are, that a preference is given to males, and
the privileges of primogeniture are recognised in the former,
—not in the latter.
757. The person to whom heritage descends is called the heir,
whilst he who inherits the moveables is called the executor.
Both characters may be united in the same individual, as in the
case of a sole surviving child.
758. The whole estate of the deceased, heritable and moveable,
is called his hæreditas, until taken up by the heir it is known as
hæreditas jacens.
759. The person who takes the benefit of the hæreditas is
called the representative of the deceased, is burdened with
his debts, and, indeed, is legally regarded as the same person,
(eadem persona cum defuncto).
760. Opening of the Succession.—The succession opens by
natural, not by civil death. In the latter case there is no succession,
the criminal's estate being forfeited to the Crown.
761. But the succession may open before death under the provisions
of a strict entail, declaring certain acts to infer forfeiture
of the estate, and its devolution on the next heir in succession.
762. Vesting.—In order that a succession may vest in any
particular person, he must possess the following requirements:—
1.He must have been conceived at the opening of the succession,
and be born alive; 2. must be legitimate; 3. a subject of the
Queen, either by birth or naturalisation; and 4. of uncorrupted
blood, i. e., not lying under a sentence of treason.
III.—Descent and Consanguinity as applicable both to Heritable and
Moveable Succession.
763. Consanguinity.—There are three lines of consanguinity—
descending, collateral, and ascending. The descending and ascending
are called lineal, in distinction to the collateral.
764. Lineal descent includes all issue, immediate and remote;
and each generation forms a degree.
765. Lineal ascent comprehends parents and ancestry in the
direct line, as high as evidence can reach.
766. Collateral kindred—i. e., brothers and sisters, uncles and
nephews, aunts and nieces, and cousins—also descend from a
common ancestor with the deceased, but do not follow each
other in lineal succession.
767. Under the head of collaterals it is necessary to distinguish
between full and half blood, and under the half blood, between
consanguinean and uterine.
768. Full blood.—Persons stand in this relation to each other,
who are born or descended of the same father and mother; such
persons are said to be german.
769. Half blood relations, consanguinean, are persons born or
descended of the same father, but not of the same mother.
770. Half blood relations, uterine, are persons born or descended
of the same mother, but not of the same father.
771. The law of heritable succession recognises no relationship
between these two classes, and there is no succession in
heritage of the one to the other ab intestato; but a different
rule has recently been introduced in moveable succession. By
18 Viet., c. 23, sec. 5, it is provided, that "where an intestate
dying without leaving issue, whose father and mother have both
predeceased him, shall not leave any brother or sister german or
consanguinean, nor any descendant of a brother or sister german
or consanguinean, but shall have brothers and sisters uterine, or
a brother or sister uterine, or any descendant of a brother or
sister uterine, such brothers and sisters uterine and such descendants,
in place of their predeceasing parent, shall have right to
one-half of his moveable estate."
772. Relationship, whether by the full or the half blood, is
reckoned in Scotland to extend as far as propinquity is traceable
by evidence.
IV.—Of Heritable Succession.
1. Of Intestate Heritable Succession.
773. Primogeniture andPreference of Males.—The heritable estate
descends to the lawful issue of the person who died intestate, and
who was last "vest and seised" in the land—that is, feudally
recognised as its owner in possession—and to the descendants of
such issue; first, males succeeding in their order, and next
females succeeding as heirs portioners. The female issue of
the eldest son exclude the second son and his issue, both male
and female; next the second son succeeds, and his issue,
male and female, the sons in their order, and the daughters
as heirs portioners; and so on through all the sons and their
issue.
774. Heirs Portioners.—Failing male issue and their descendants,
the female issue inherit equally—the issue of those who
have died taking their mother's rights. The succession of heirs
portioners is pro indiviso, that is to say, each succeeds to an equal
right in the undivided estate; a legal form being provided, by
which any one of them can enforce a division should they be
unable to settle the matter extrajudicially, by arbitration or
otherwise.
775. There is no difference between daughters of a first and
any subsequent marriage of the father.
776. The children of a daughter succeed to her in accordance
with the ordinary laws of heritable succession; the sons and their
issue taking first in their order, and failing them, the daughters
as heirs portioners.
777. The eldest heir portioner has an exclusive right to the
mansion-house of an estate in the country without compensation
to her sisters, and she is entitled to claim the portion of land
which lies nearest it ; but she has no such right to a house in
town or to a country villa. She is also entitled to peerages, dignities,
and titles of honour, which are not otherwise destined in
the patents by which they are conferred. These privileges are
called her pracipuum.
778. She has also a preferable right to subjects which in their
nature are indivisible, e.g., a house in town, a villa, or a superiority
; but in these cases she must give compensation. When
there are more superiorities or rights to feu-duties than one, they
are divided like other subjects.
779. The eldest heir portioner has likewise the custody of the
title-deeds.
780. Representation, or the right of the children of a descendant
who has died before the opening of the succession to
come into his place, which has recently been introduced into
succession in moveables, has always been the rule in heritable
succession.
781. Collateral Succession. — When the line of descent is exhausted,
the succession, instead of ascending to the grandfather,
deviates to the collateral line. Even amongst collaterals the rule
is in favour of descent. Thus, on the death of a middle brother,
his younger brothers, in their order, and their issue, succeed in
preference to an elder brother or his issue. Elder brothers
succeeding to younger are preferred in the inverse order,—viz.,
from younger to elder upwards, each transmitting to his issue
according to the ordinary rules.
782. The brothers of a female succeed in preference to her
sisters, the order just mentioned being observed. When sisters
succeed to each other, they do so as heirs portioners. The german
or full blood, male and female, to the last traceable connexion,
excludes the half blood.
783. The half blood consanguinean follows the full blood,
brothers first in the above order. If the brothers called to the
succession are the issue of a former marriage, the youngest
brother succeeds first, and gradually upwards; but if they are the
issue of a subsequent marriage, the eldest succeeds first, and
gradually downwards.
784. Sisters consanguinean succeed to brothers consanguinean
as heirs portioners. The half blood uterine is excluded.
785. The ascending Line.—Failing collaterals, the father succeeds;
he and his relatives excluding the maternal relatives.
786. Heritage never ascends to the mother or her relatives;
and even the mother's own estate, if it has once vested in her
son or daughter, never passes to the maternal line again.
787. Ultimus Hæres.—The Crown, as last heir, takes the
estate on the failure of the three lines of succession stated. The
Crown also suceeeds where a bastard dies intestate, and without
lawful heirs of his body, because a bastard having no father in
the eye of the law, except as liable for aliment as above stated,1
can have no heirs but his own children. The widow of a bastard
is entitled to terce; and the Sovereign, whether succeeding to a
bastard or to a person lawfully born, must pay the debts of the
deceased as far as the value of the estate goes, but no further;
and his creditors may attach the estate by proper diligence,
calling as parties the officers of state as representing the
Crown.
788. The Crown possesses corresponding rights to moveable
property.
1 Ante, p. 50.
789. Conquest.—Property otherwise heritable is called conquest,
when it has come into the possession of the deceased by
purchase, gift, or other singular title (i. e., a title not inferring
the character of heir) from a stranger, or from a relative to whom
he would not by law have succeeded; whereas heritage proper
is that to which he has succeeded as heir-at-law.
790. Though, generally, all heritable subjects thus acquired
become conquest, the rule is not without exceptions. Thus
leases, personal bonds excluding executors, teinds, etc., are not
conquest.
791. Property, moreover, which passes by destination, and
which is taken up by the heir of provision by service, is not conquest;
e.g., an estate which comes to a middle brother by a deed
of entail.
792. If the heir of conquest has made up titles, the property
will descend as heritage to his heir; but if he has not done so,
and the property remains in hæreditate jacente of the acquirer, it
will go to his heir of conquest.
793. A difference between the rules of succession in heritage
and conquest exists where a middle brother or sister, or their
issue, dies, leaving younger and elder brothers or uncles. In this
case, and in this only, the rule comes into play, that, whilst
heritage descends, conquest ascends. The younger brother, or
uncle, takes the heritage; the elder the conquest; their issue
succeeding them in both cases.
794. An apparent heir is the person who, after the succession
has opened, is entitled to take it as heir-at-law, but who has not
yet completed his titles.
795. An heir presumptive is the name which he receives before
the opening of the succession.
796. An apparent heir may enter into possession of lands and
levy the rents, but he cannot remove tenants who derive their
right from the deceased proprietor.
797. His right to the rents runs from the period when the
succession opened, so that, on his own death, his executors
would take the unlevied rents, or the interest of the price of
lands sold.
798. He may bring the estate to judicial sale for debt, even
although it be not bankrupt.
799. Annus Deliberandi.—A year is allowed to the heir, computed
either from the ancestor's death, or from his own birth if
posthumous, for deliberating whether he shall take up the succession,
or decline to incur the responsibility for debt which it
implies. This privilege is limited by 21 and 22 Vict., c. 76,
sec. 27, which provides that "actions of constitution and adjudication
against an apparent heir on account of his ancestor's debt
or obligation, for the purpose of attaching the ancestor's heritable
estate, and actions of adjudication against such heir on account
of his own debt or obligation, for the purpose of attaching
such estate, may be insisted in at any time after the lapse of
six months from the date of his becoming apparent heir."
2. Of Heritable Succession by Deed.
800. Heritable property can be conveyed in Scotland only by
a disposition, or deed which sets forth a transaction ostensibly
between living persons, and cannot be transmitted by last will or
testament, even though the latter deed should have been executed
in a country by the law of which real property can be so conveyed.
An extreme anxiety to protect heirs-at-law from being hurt by
deathbed deeds, seems to have been the reason of adopting in
Scotland a rule unknown to the civil law, and at variance with
the laws of most European countries.
801. But this rule does not prevent a man from effectually
settling his heritage in a deed possessing the other characteristics
of a testament, provided he uses, in the clause in which the
heritage is conveyed, the words give, grant, and dispone, in place
of legate or bequeath.
802. The fiction on which a deed of this nature proceeds, is
that the grantee becomes the proprietor; and the actual possessor
accordingly reserves to himself, in a separate clause, his
own liferent, and a power to revoke the conveyance.
803. A conveyance will be effectual though it be in general
terms, as "of all lands and heritage belonging to me;" but such
a clause will not carry the right to a succession which has not
opened to the disponer during his life. Such a right must be
specially conveyed.
804. Substitutions.—It is not unusual for a disponer to nominate
several persons who shall be entitled to the estate, in an
order which he also specifies. The first disponee in this case is
called the institute, the others substitutes or heirs by destination.
805. Technical Words.—Where technical words are used, either
in describing the several classes of heirs or otherwise, the rule in
construing the deed is to adhere to the received meaning of such
words, whatever may appear to have been the meaning attached
to them by the disponer. Where technical words are not used,
the deed will be construed according to the apparent voluntas
testatoris, which will be collected from its whole strain and purport.

806. Such words thus come to be important, whether our
object be to use them correctly, or to avoid their use.
807. Heir includes all those who are heirs by law, viz., heirs
of line, heirs of conquest, and heirs of investiture.
808. Heir-male is a male connected by males, and excludes
not only females, but males connected by females.
809. Heir of line is synonymous with heir-at-law, heir general,
heir whatsoever, and includes the heir of conquest. Heir of line is
also used as distinguished from heir of conquest, though both are
heirs-at-law.
810. Heir-male of line means the hew-male, excluding the heir
of conquest.
811. Heir-female is the heir-at-law, male or female, failing
heirs-male.
812. Heir-male of the body, in contradistinction to, the heirmale,
is not necessarily a son of the disponer, but must be in
the direct line of descent.
813. Heir whatsoever, or heir whomsoever, is in general equivalent
to heir-at-law.
814. Heir by destination (vide Substitutions, supra, p. 137).
815. Ambiguity may arise in point of time. The rule in
construction is, that the reference is not to the time of making
the deed, but to the opening of the succession.
816. Simple Destination.—The heirs of the disponee are in
general included; but the immediate substitution of one person
for another excludes the heirs of the institute, except in deeds by
parents to children.
817. A clause of return, is a provision that the subject shall
return to the granter and his heirs. Such a clause will in no
case be effectual against onerous deeds, or the diligence of
creditors.
818. A power to name heirs may be given; and, if duly exercised,
the nomination is effectual.
819. Limited Destination includes-1. destinations in fee and
liferent; 2. substitutions, with simple prohibitions; 3. entails;
4. conditional settlements.
820. Fee and Liferent.—The unlimited right of possessing
and disposing of property is called the fee; the limited right of
usufruct during life is called the liferent. These rights may
subsist at the same time either in the same or in different persons;
and either of them may be held by one, or by two or
more persons.
821. Conjunct Fee and Liferent.—Conjunct rights in the persons
of husbands and wives, or parents and children, are usually
created by marriage contracts,1 and are governed by their
provisions.
822. Where the conjunct fee and liferent is in favour of
strangers and their heirs, the two are equal fiars during their
joint lives; but after the death of the first the survivor has the
liferent of the whole, and after his death the fee is divided equally
between the heirs of both.
823. If no mention is made of liferent, and the right be to two
jointly and their heirs, the conjunct fiars enjoy the subject
equally while both are alive; but on the death of the first, both
the fee and liferent of his half descends at once to his heir. In
a right to two jointly, and the longest liver and their heirs, the
words their heirs denote the heirs of the longest liver.
824. If the right be to two and the heirs of one of them, he
alone is fiar; the right of the other resolving into a naked
liferent.
825. Substitutions with prohibition to alter.—Such deeds are not
entails unless the other conditions of the Entail Acts are complied
with, and third parties consequently are not affected by them.
They are personal contracts simply, with a condition annexed to
the conveyance, the effects of which are limited to the heirs, even
heirs being bound by them only according to a rigid construction
of their terms.2
3. Of Entails.
826. An entail, or, as it is frequently called in Scotland,
a tailzie, from tailler to cut, properly signifies any destination
by which the legal course of succession is cut off, one or more
of the heirs-at-law being excluded or postponed. In its usual
acceptation, an entail is a destination of landed property by
1 Ante, p. 42. 2 Bell, Princ., p. 619.
which a line of succession, differing from that of the common
law, is fixed in perpetuity.
827. Entails were formally legalised in Scotland by the statute
1685, c. 22. Previous to this period, deeds containing clauses
whereby the debts and deeds of the heir in possession were
rendered null, and his own right declared to be extinguished if
he contravened the provisions of the settlement, had begun to be
framed by conveyancers. These clauses are said to have been
devised by Sir Thomas Hope, Advocate to King Charles I.,
and they were supported by a single decision of the judges; but
Mr Erskine is amply borne out by Lord Stair, and others of our
earlier writers, where he tells us that they were generally accounted
"not only contrary to good conscience, as they cut off
the right of the lineal heir, but inconsistent with the genius of
our law, as they sunk the property of land estates and created
a perpetuity of liferents." In following the course of legislation,
we shall see to how great an extent the current of public opinion
on this subject has returned to the channel from which the influence
of the aristocracy for a time diverted it.
828. The original Entail Act provides that it shall be lawful
to tailzie lands and estates; to substitute heirs with such provisions
and conditions as the entailer shall think fit, and to insert irritant
and resolutive clauses, whereby it shall not be lawful to the heirs
of tailzie to sell or otherwise dispose of the said lands, or any
part thereof, or contract debt, or do any deed whereby the estate
may be apprised, adjudged, or evicted, or the succession frustrated
or interrupted.
829. All such deeds are declared null, and the heir next in
succession empowered, immediately on contravention of the provisions
of the entail, to pursue a declarator, and serve himself
heir to the last heir who died infeft and did not contravene.
830. A register of entails is also instituted ad perpetuam rei memoriam;
and provision is made that the same clauses contained in
the first shall be repeated in every subsequent conveyance of the
tailzied estate. It is declared that omission to repeat these
clauses shall be a contravention of the entail against the person
and his heirs omitting to insert them, whereby the estate shall
ipso facto devolve to the next heir; but such omission shall not
militate against creditors and other singular successors contracting
bona fide with the person infeft in the estate, but without
the said clauses in the body of his right.
831. It was not till after the lapse of a century that the inconveniences
arising from the stringent character of this enactment
led to further legislation.
832. The first relaxations were entirely in favour of the
estates, which were found to be as much prejudiced as their possessors
and the public by the fetters imposed by the first Act.
Of two statutes passed in the same year, 20 Geo. II., the first,
c. 50, enables heirs of entail holding superiorities, to sell these
superiorities to their vassals, so as to make the vassals hold
directly of the Crown; and the second, c. 51, entitles heirs of
entail in possession to sell their estates to the Crown, the money
to be invested in land, to be settled according to the destination
of the tailzie; whilst the sole object of the well-known Montgomerie
Act (10 Geo. III., e. 51) was to encourage the agricultural
improvement of lands held under entail, by relieving the
heirs from impediments to granting leases, and empowering
them, under certain regulations, to charge against future heirs a
proportion of the expenses of improvements on their estates.
833. The Aberdeen Act was subsequently passed (5 Geo. IV.,
c. 87), to authorise the proprietors of entailed estates in Scotland to
grant provisions to their wives or husbands and younger children.
It was provided by this Act that only two liferent provisions should
subsist at one time, and they were limited in amount, in the case
both of husbands and wives, to a certain proportion of the free
rental. The provisions to the children were payable only from
the rental after deduction of the annuities; and the greatest sum
payable, however numerous the family, was restricted to three
years rental of the estate. It was expressly enacted that none
of these provisions should be made by any process of law to
affect the fee of the estate, but that, after the granter's death,
they should be paid by the heir out of the yearly rents or proceeds.

834. The concluding section of the statute was to the effect
that in no case should the heir in possession be deprived of more
than two-third parts of the clear annual income. In a very few
years this clause came to describe the position of a large number of
heirs of entail, and relief was sought from the burdens under
which they laboured by the Roseberry Act (6 and 7 Will. IV.,
c. 42), the leading object of which, in addition to increasing the
powers of heirs of entail with respect to leases and excambions,
was to "empower the Court of Session to authorise the sale of
entailed lands for the payment of certain debts affecting the
same." But it was only the debts of the maker of the entail that
were authorised to be thus discharged. This enactment was followed
by the two comparatively unimportant Acts, 3 and 4 Vict.,
c. 48, "to enable proprietors of entailed estates to feu or lease on
long leases portions of the same for the building of churches and
schools, and for dwelling-houses and gardens for the ministers
and masters thereof," and 4 and 5 Vict., c. 24, to amend the
Montgomerie Act, by declaring that in contracts of excambion it
shall not be necessary to insert the whole destination of heirs
substitutes, or the conditions and provisions, provided that reference
be made in the contract to the original entail.
835. We have now arrived at the Act for "the Amendment of
the Law of Entail in Scotland" (11 and 12 Vict., c. 36, 14th
August 1848), commonly called the Rutherfurd Act, which, proceeding
on the preamble that the law of entail in Scotland has
been found to be attended with serious evils, both to heirs of
entail and the community at large, modifies it extensively, in
conformity with the views on the subject which had already
found legislative expression in England.
836. The following are its leading provisions:—
837. (1.) Any heir of entail, born after the date of the entail,
being of full age and in possession, under an entail dated on or
after 1st August 1848, may disentail the estate in whole or in
part, under the authority of the Court of Session; and any such
heir born before the date of such entail, and in possession, may
do so with consent of the heir next in succession, being heir apparent
under the entail, of 25 years of age, and born after the date
of the entail.
838. (2.) Any heir in possession under an entail, dated before
1st August 1848, may disentail, if born on or after that date.
Any heir of entail born before 1st August 1848, of full age and
in possession under a deed of prior date, may disentail, with
consent of the heir next in succession, being heir apparent, born
after 1st August 1848, and 25 years of age.
839. (3.) Any heir of entail, of full age and in possession
under an entail existing prior to 1st August 1848, may disentail,
if he be the only heir of entail in existence and unmarried, or
shall have obtained the consents of the whole heirs of entail, if
there be less than three in being, or otherwise of the three nearest
heirs for the time entitled to succeed, or lastly of the heir apparent,
and of the heir or heirs, in number not less than two, including
such heir apparent, who in order successively would be
heir apparent, provided that the nearest heir for the time shall
be of the age of 25 complete, and not subject to legal incapacity.
840. (4.) The heir of entail, of full age, and in possession, may
sell, charge with debt, lease, and feu with the like consents as
enable him to disentail.
841. (5.) The heir under an entail existing prior to 1st August
1848, may excamb with the like consents.
842. (6.) The party applying to the Court for authority to
disentail, sell, alienate, dispone, charge with debts, lease, feu, or
excamb, shall make affidavit to the effect, either that there are no
entailer's or other debts, and no provisions to husbands, widows,
or children; or, if there are such encumbrances, setting them forth,
principal and interest, in order that, if the Court shall see cause,
intimation of such application may be ordered with a view to the
persons in right of the same appearing for their interest, and the
Court shall order provision to be made for such debts or provisions,
or for the protection of the parties in right of them, before
granting the authority sought; and any person who shall wilfully
make such affidavit falsely shall be guilty of perjury.
843. (7.) Creditors, or persons in right of a provision to a husband,
widow, or younger child, who, before the expiry of one
year from the date of recording the instrument of disentail,
shall use inhibition, shall not be affected by such instrument of
disentail.
844. (8.) Where by marriage-contract the descent of the
estate upon the issue of the marriage shall have been secured, it
shall not be competent for the heir in possession to apply for
disentail until there shall be a child born of such marriage, who
shall consent to the disentail by himself or his guardians, or
until such marriage shall be dissolved without a child, unless the
trustees named in the contract shall concur in the application.
845. (9.) Heirs who shall, prior to the date of the Act, have
borrowed money on the security or credit of their right of succession,
under an entail dated prior to 1st August 1848, shall not
consent in opposition to their creditors, unless adequate security
be given to the satisfaction of the Court.
846. (10.) Heirs apparent who shall borrow money subsequently
to the passing of the Act are similarly restrained, but
other heirs substitute are not.
847. (11.) Any creditor of an heir empowered to disentail,
but who has not done so, may affect the estate for payment of
his debt.
848. (12.) The Acts 10 Geo. III., c. 51, and 5 Geo. IV., e.
87 (Montgomerie and Aberdeen Acts), shall not apply to tailzies
dated after 1st August 1848; their provisions being superseded
by the provisions of this Act.
849. (13.) An heir having obtained decree under the Montgomerle
Act for expense of improvements, may grant a bond of
annualrent of a tenor which is prescribed.
850. (14.) An heir, in future expending money in improvements,
may grant a similar bond of annualrent.
851. (15.) When improvements have been executed and recorded
under the Montgomerie Act by an heir who has died
without executing a bond of annualrent, it shall be lawful for
his executor to call on the heir in possession to grant such
bond.
852. (16.) Where improvements have been executed, but the
provisions of the Montgomerie Act have not been complied with,
it shall be lawful for the heirs in possession to apply, by summary
petition to the Court, for authority to grant bond of annualrent;
and if it shall appear to the Court that the improvements are of
the nature contemplated by the said Act, and that the expenditure
was bond fide made, they shall grant warrant for execution
of the bond, as in the case of improvements for which decree in
terms of the Act has been obtained.
853. (17.) So long as an entailed estate remains subject to the
tailzie, or is not liable to be disentailed by the heirs in possession
without the consent of any other party, no bond of annualrent
shall be made the ground of adjudication or eviction of the estate
or any part thereof; and the annualrents contained in such bond
shall be recoverable out of the rents and profits of the estate, and
from the heir in possession for the time being, and such heir shall
be bound yearly to pay and keep down such annualrents; and
no remedy shall be competent to a creditor under the bond for
arrears beyond two years' annualrent, interest and penalties,
without prejudice to his remedy against the heir personally and
his representatives.
854. (18.) In all cases in which it may be competent, or an
heir may be called upon to grant a bond of annualrent, it shall
be lawful for such heir, and he may be called upon, to charge the
fee and rents of such estate, other than the mansion-house, offices,
and policies, with two-thirds of the sum on which the amount of
such bond of annualrent, if granted, would be calculated in the
terms of this Act, by granting, in favour of any creditor who may
advance the amount of such two-thirds, bond and disposition in
security over any portion of the estate other than as aforesaid for
such amount, with interest till repaid.
855. (19.) Any bond of annualrent, or bond and disposition in
security, granted under the authority of this Act, shall operate
as a discharge of all claims on account of the improvements for
which they have been granted against the estate and the heirs of
entail succeeding thereto, except the claims under the head of
annualrent or bond and disposition in security.
856. (20.) Private roads are to be deemed improvements.
857. (21.) Provisions to younger children under the Aberdeen
Act, or in virtue of powers contained in the deed of entail, may
be made charges on the entailed estate by bond and disposition in
security over the estate, other than the mansion-house, offices,
and policies.
858. (22.) The heir in possession is to pay yearly and keep
down the interest on provisions to children, and the remedy competent
to the creditor against the fee and rents shall be limited
to the principal sum and two years' interest thereon, and corresponding
penalties, without prejudice to his personal remedy
against the heir or his representatives, or separate estate, including
the rents of the entailed estate during possession.
839. (23.) Provisions to children are not to be charged without
authority of the Court.
860. (24.) Notwithstanding any limitations in the entail, it
shall be lawful for the heir in possession, upon notice to the heirs
next entitled to succeed, and with the approbation of the Court,
to grant feus or long leases, such fens or long leases not exceeding
in all one-eighth part in value, for the time, of such estate;
but it shall not be lawful for the heir to take any grassum, or
fine, or valuable consideration, other than the tack-duty or rent,
nor to grant any such feu or lease of the mansion-house, offices,
or policies. In case any such grassum or other consideration
shall be taken, or any feu or lease hereby prohibited shall
be granted, they shall be null and void, unless it be in accordance
with more extensive powers contained in the tailzie itself.
861. (25.) In all cases in which it is competent to charge the
estate with debt, the heir in possession may sell any portion of
the estate other than the mansion-house, policies, and offices,
which may be necessary, and which the Court may select as most
suitable to be disposed of, for payment of the debt; and it shall
be lawful for the heir to grant, at the sight of the Court, a valid
disposition or dispositions in fee simple to the purchaser of the
portion or portions sold accordingly. The price shall be approved
of and paid into Court by the purchaser, who shall be fully discharged
by such payment; and shall be applied at the sight of
the Court to the extinction of the debt. If the surplus, after
paying the debt, is more than two hundred pounds, it shall be
invested in other lands to be added to the remainder of the estate,
or applied in payment of the entailer's debts, or of any money
charged on the fee of the estate, or in redemption of the land-tax,
or in permanently improving the estate, or in repayment of money
already expended in improvements.
862. (26.) If other lands be purchased to be added to the estate,
the tailzie of such lands shall be taken to be of equal date with
the original tailzie of the estate. If the surplus be less than two
hundred pounds, it shall be paid over to the heir in possession for
his own use and behoof; all at the sight and under the direction
of the Court of Session.
863. (27.) Money derived from the sale of an entailed estate,
or of any right or interest in or concerning the same, or in
respect of any permanent damage done to the estate under a private
or other Act of Parliament, or where money has been
invested in trust for the purpose of purchasing lands to be entailed
on the series of heirs entitled to succeed under the entail, or
where money would fall to be invested under the provisions of the
entail, and where the heir in possession could by virtue of this
Act acquire such estate in fee simple, such money may be paid
to the heir in fee simple; but if the heir of entail shall not be entitled
to acquire the estate in fee simple, he may, with the approbation
of the Court, lay out such money in payment of the entailer's
debts, or in payment of any money charged on the fee of the estate,
or in redemption of the land-tax, or in permanent improvements,
or in payment of money already expended on improvements.
864. (28.) Money vested in trust for the purchase of land to be
entailed, may be dealt with as if it were the entailed land.
865. (29.) The date of the Act of Parliament, or deed of trust
directing land to be entailed, shall be held to be the date of the
entail.
866. (30.) Provisions to wives and children may be granted
out of money vested in trust for the purchase of lands to be
entailed.
867. (31.) If a creditor, acting under powers of sale contained
in a bond or disposition in security, shall sell lands in manifest
excess of what is necessary to pay the debt affecting the estate,
the surplus shall be reinvested in land to be placed under the same
provisions; but if such surplus shall not exceed two hundred
pounds, it shall be paid to the heir in possession for his own use.
868. (32.) Guardians to be appointed by the Court, in the
course of the application, may consent for persons under age, or
subject to legal incapacity.
869. (33.) A form for the instrument of disentail is furnished
in the schedule to the Act, and the keeper of the Register of
Tailzies is instructed to record it, along with the decree on which
it proceeds, for a fee to be fixed by Act of Sederunt; and such
instrument, when recorded, shall have the effect of freeing the
heir in possession from the fetters of the entail; but such instrument
of disentail shall in no way defeat or affect injuriously any
charges, burdens, or incumbrances, held by third parties, other
than the rights and interests of the substitutes in the entail.
870. (34, 35, 36, and 37), Have reference to the form of the
applications to be presented to the Court, the intimation required
to be given in the Gazette and the newspapers, the procedure in
Court, and the heirs whom it shall be requisite to call as parties
to the proceedings.
871. (38.) Provides that excambions under the Roseberry Act
(6 and 7 Will. IV., c. 42) may be carried through under the
forms of this Act, and recorded in the Register of Tailzies.
872. (39.) Instruments of disentail shall be final unless the
judgment of the Court on which they proceed has been appealed
from to the House of Lords, or brought under reduction during
the period within which it might have been appealed from.
873. (40.) In future entails the clause of registration shall, in
every respect, have the same operation and effect as the most
formal irritant and resolutive clauses; and it shall not be necessary
that such clauses be inserted in order to render the tailzie
effectual in terms of the Act 1685.
874. (41.) No irritancy committed by an heir in possession
shall affect conveyances to purchasers, or securities to bond fide
onerous creditors.
875. (42.) The provisions of the English statute (39 and 40
Geo. III.), entitled "an Act to restrain all trusts and directions
in deeds and wills, whereby the profits or produce of real or
personal estate shall be accumulated, and the beneficial enjoyment
thereof postponed beyond the time therein limited," are extended
to Scotland. By this statute the period of accumulation
is restricted to twenty-one years after the death of the grantor,
or the minority of the parties interested.
876. (43.) Acts permitted by this Act may be done by heir of
entail, though the deed of entail be not recorded nor the heir infeft.
877. (44.) An entail defective under the Act 1685, in any one
prohibition, shall be invalid and ineffectual as regards all the
prohibitions. This clause alone has swept away a very large
proportion of the entails of Scotland.
878. (45.) The instrument of disentail may be registered in
the Register of Sasines, either in the county in which the lands
lie, or in the General Register at Edinburgh.
879. (46.) No irritancy or forfeiture shall be incurred for anything
done under this Act.
880. (47.) Act 1685 to remain in force except as affected by
this Act.
881. (48, 49, 50), Enact that the Act shall not be defeated,
and parties shut out from its benefits, by trusts, liferents, or leases.
882. The only subsequent statute on this branch of our law is
the 16th and 17th Vict., c. 94 (20th August 1853), the object of
which is to extend the benefits and facilitate the operation of the
Rutherford Act, the provisions of which are stated in the preamble
to have been highly beneficial. In accordance with this
design, the first six sections make provision for forms of procedure
more expeditious and economical than those contemplated
by the former statute; it being provided by the first section that
these forms are merely directory, and that no judgment shall be
reduceable on the ground of want of compliance with them.
883. The 7th section provides that a bond and disposition in
security for provision to a younger child, may be granted to any
party advancing the amount thereof.
884. (8.) Money placed in trust prior to 1st August 1848 to
purchase land to be entailed, may be partly invested in land, and
partly employed for the benefit of such land.
885. (9.) Sales may be made to pay off the entailer's debts,
though not validly charged on the fee of the estate.
886. (10.) Where, at passing of this Act, entailed estates may
be sold under judicial authority, parties entitled to sale may make
application to the Court, in the form prescribed by the Rutherfurd
Act.
887. (13.) Where a tailzie, executed after 1st August 1848,
does not expressly prohibit granting of feus and building leases,
though it shall contain a prohibition against alienation and long
leases generally, the heir in possession shall have the same powers
of granting such leases for more than twenty-one years, as are
conferred by the Rutherfurd Act, on heirs under tailzies dated
prior to 1st August 1848.
888. (14.) Heirs in possession entitled to sell portions of estates
under the Lands Clauses Consolidation Act (8 and 9 Vict., c.
19), may do so to any company authorised to acquire the same,
in consideration of an annual feu-duty or ground-annual.
889. (15.) But the company shall not pay, nor shall the heir
take, any grassum, fine, premium, or consideration in the nature
thereof. The amount of the feu-duties or ground-annuals, in case
of difference, to be settled by valuators as under the Lands
Clauses Act.
890. (16.) All fen-duties payable by a company to be a first
charge on the revenues of the company.
891. (20 and 21.) Neither heir nor heir apparent shall give
consents where they are opposed by heritable creditors.
892. (22.) Bonds and dispositions in security may contain
power of sale.
893. By the 4th section of the recent Act, "to regulate the
distribution of business in the Court of Session" (20 and 21
Vict., c. 56), it is enacted that petitions and applications, under
any of the various statutes now in force relative to entails, shall,
in common with other summary petitions and applications, be
brought before the Junior Lord Ordinary officiating in the Outer
House, and shall not be taken before either of the two divisions
of the Court as formerly.
4. Of Conditional Settlements.
894. Settlements to land may be dependent on other conditions
than the limitations of an entail; and these conditions may be
either implied or express.
895. 1st. Implied Conditions.—The only condition that is
generally implied is, that the conveyance shall be effectual
only si testator sine liberis decesserit, i.e., if the maker of the settlement
shall die without lawful issue. Even this presumption,
however, may be defeated by evidence, or by opposite presumptions.

896. 2d. Express Conditions.—The rule as regards express
conditions is, that if they be intelligible they shall be effectual,
unless they are:—Beyond the power of the maker of the deed;
2. Impracticable; 3. Inconsistent with law; or 4. Contrary to
morals—contra bonos mores. In these cases they are held pro
non scriptis, and the destination is the same as if no condition had
been annexed to it.
5. Of the Law of Deathbed.
897. If any man, whilst ill of the disease of which he died, has
conveyed or burdened his heritable estate, to the prejudice of his
lawful heir, he is presumed to have acted under importunity, and
his heir is entitled to reduce the deed.
898. This rule, which belongs to the most ancient consuetudinary
law of Scotland, is manifestly referable to the same principle
with the prohibition to convey heritage by will, and like it,
in all probability, as Lord Stair suggests, was intended as a
protection against the notorious propensities of the priesthood.
899. The two tests which have been fixed upon as establishing
that degree of vigour, which in opposition to deathbed is called
liege poustie (legitima potestate), are—1. Survivance for sixty
days; and 2. Going to kirk or market, unsupported, and for
the ordinary purposes. Where the latter defence is made to a
reduction on the ground of deathbed, questions of much nicety
in point of fact invariably arise, and these are usually referred to
a jury.
900. Extreme old age, if accompanied by manifest indications
of the approach of death, will be equivalent to disease;
but the deed of the oldest or most infirm man, or of the man who
is labouring under the most mortal sickness, will not be reducible
if he has either died of another disease, or been killed by an
accident,—it being held that, in either case, he might have survived
the requisite sixty days.
901. In computing the sixty days, the day of signing is not
reckoned; but it is sufficient that the sixtieth day shall have been
begun, according to the brocard, Dies inceptus pro completo habetur.
902. If the deed has been antedated on purpose to meet the
objection of deathbed, it will be reducible, whatever may be its
true date, in respect that it is a deed vitiated in essentialibus.
903. Leases for adequate rents granted, and in the ordinary
course of management, are not reducible; but all leases for unusual
periods, extraordinarily low rents, or where a grassum or
other valuable consideration has been received, fall under the
law, because they are, alienations of heritage in substance, though
not in foam.
904. Onerous deeds,—that is to say, deeds to which the granter
obliged himself, either by the contraction of debts or otherwise,
whilst in liege poustie,—are binding, though executed in lecto, because
these deeds are not really hurtful to the heir, who would
have been bound by his ancestor's obligation.
905. Any heir, or apparent heir, is entitled to reduce, provided
he can prove injury, and has not ratified the deed by his own
act. The creditors of heirs possess a similar right of challenge,
and this right cannot be defeated by the consent or ratification
of the heir. The heir will not be held to have ratified the deed
if, at the period of consenting or of acting on it, he was a
minor.
906. The law of deathbed, though strictly confined to heritable
subjects, affects such moveables as are heritable by destination,
or as affect the interests of the heir. Thus, heirshipmoveables,
moveable bonds secluding executors, and all other
moveable bonds, where the moveable estate of the granter is not
sufficient for satisfying his personal debts, may be reduced by the
heir.
907. Mental Alienation.—Heritable conveyances, like all other
deeds, may be reduced on the ground of unsoundness or imbecility
of mind.1
6. Of the Entry of the Heir.
908. It was formerly mentioned,2 that in the transmission of
heritable property from an ancestor to an heir, the form is that
of a conveyance from one living person to another. It follows,
as a natural consequence of this rule, that, when his right to the
succession has been judicially recognised, the heir makes up his
titles to the estate in the same manner as if it had been conveyed
to him by sale or gift during the lifetime of the ancestor.
909. The constitution and transmission of rights in land will
fall more properly to be treated under the head of Sale; and the
only branch of the subject which here requires notice, is that
1 Ante, p. 77. 2 Ante, p 139.
which has reference to the proceedings by which the fact of heirship
is judicially ascertained.
910. Entry by Service.—A service was formerly the verdict of
a jury on the rights of a claimant to the heritage of the deceased.
If the claim was to lands in which the deceased was feudally
vested, the service was called special; if to those to which he held
personal rights, it was a general service, though, in violation of
etymology, the special embraced the general, not the general the
special service.1
911. The trial took place in obedience to a brieve or precept
from the Sovereign, which was issued from Chancery at the
request of the claimant, and directed either to the Sheriff of the
County or to the Sheriff of Edinburgh if the service was a special
one, or to any sheriff or burgh-magistrate if it was a general one.
912. The proceeding is now regulated by 10 and 11 Vict., c.
47, by which very extensive changes have been made on the
former practice.
913. The brieve from Chancery is abolished, and services are-directed
to proceed by petition to the Sheriff of the county
where the deceased was domiciled, or to the Sheriff of Chancery,
at the option of the petitioner; and this whether the service be
general or special. If the deceased had no domicile in Scotland,
or if the claim be for special service to lands in different counties,
the petition is competent to the Sheriff of Chancery only.
914. The conditions of entail, and all other burdens, conditions,
and limitations, may be referred to in the petition, instead
of being inserted at length.
915. When the petition has been duly intimated and published
in accordance with the provisions of the Act, and the
prescribed periods have elapsed, the Sheriff shall, by himself, or
by the Provost, or any of the bailies of any royal burgh, who are
thereby authorised to act as commissioner of such Sheriff with1
Just as Socrates, by comprehension or depth, includes Homo or Animal.
out special appointment, or by any commissioner whom such
Sheriff may appoint, receive all such evidence, documentary and
parole, as might competently have been laid before the jury
summoned under the brieve of inquest, and any parole evidence
shall be taken down in writing, and a full and complete inventory
of the documents produced shall be made and certified by the
Sheriff or his commissioner; and on considering the said evidence,
the Sheriff shall, without the aid of a jury, pronounce judgment,
serving the petitioner in terms of the petition, in whole or in
part, or refusing to serve him and dismissing the petition, in
whole or in part; and this judgment shall be equivalent to and
have the full legal effect of the verdict of the jury under the
brieve of inquest, according to the practice theretofore existing.
916. In the event of a competing petition, it shall be lawful
for the Sheriff to dispose of the petitions, either together or
separately, after the same manner.
917. The petition, with the judgment of the Sheriff annexed,
is directed to be transmitted to the Director of Chancery or his
depute, by whom it shall be recorded, and an authenticated extract
prepared and delivered to the party; and this extract shall
be equivalent to an extract of the retour under the former brieve
of service.
918. These proceedings may be advocated to the Court of
Session for jury trial; and where the Sheriff has refused to serve
the petitioner, or dismissed his petition, or repelled the objection
of an opposing party, his judgment may be brought under review
by a note of advocation.
919. A decree of special service, thus obtained, besides
operating as a retour, shall have the effect of a disposition by
the deceased to the heir, who shall be entitled to make up his
titles to the estate in the usual form.
920. It is provided, that in future no decree of special service
shall operate or be held equivalent to a general service to the
deceased, except as to the particular lands thereby embraced,
and that it shall infer only a limited passive representation of the
deceased; and the person thereby served shall be liable for the
deceased's debts only to the extent or value of the lands embraced
in the service, and no further.
921. The heir of line, or heir-male, may petition for a general
service in the same petition in which he asks for special service,
and without further notice or publication.
922. A general service may be applied for, and obtained to a
limited effect, by annexing a specification to the petition; and
such service shall infer only a limited passive representation to
the extent of the relative specification.
923. It is expressly provided that the statute shall not affect
the entry of heirs by precept of dare constat, or the service and
entry of heirs more burgi in burghs, in tenements held burgage.
924. Entry by Writ of Clare Constat.—This is a form of voluntary
recognition on the part of the superior, by means of which
the heir may frequently be spared the expense and trouble of a
service.
925. What was called a precept of dare, was an injunction from
the superior to his bailiff to infeft the person in whose favour
it was granted, quid mihi dare constat, etc.,—that the defunct died
last vest in the lands, and that the claimant is his heir. On
this precept an instrument of sasine was expede and recorded.
926. The recent "Titles to Land" Act (21 and 22 Yid., c.
76), having abolished the instrument of sasine, provides (sec. 11),
that in place of the superior directing that the person applying
to him shall be infeft, he shall merely declare that he is the heir
of the last vassal; that it shall be competent to record this writ
of Clare constat—as, in accordance with the change in its substance,
it is instructed to be called—in the Register of Sasines
and that, when thus recorded, the writ shall have the same force
and effect as if a precept of dare constat had been granted, and
an instrument of sasine duly expede and recorded according to
the former form.
927. When lands are held of the Crown or Prince, a precept
from Chancery was issued, containing, like the precept of Clare
constat, both a recognition of the heir's character and a command
to infeft him. For this precept a simple writ of recognition
has been substituted as in the preceding instance.
928. Entry by Adjudication on a Trust-Bond, the chief object
of which was to enable the heir to challenge deeds adverse to
his right, without immediately rendering himself liable as heir—a
device of Sir Thomas Hope's,—is rendered less valuable than
formerly by the Service Amendment Act1 (10 and 11 Vict., c.
47, sec. 25) above referred to, wherein it is provided that general
services may hereafter be obtained to a limited effect by annexing
a specification. In the entry by adjudication, the heir grants
a bond to a confidential person for a sum equal at least to the
value of the estate. The holder of the bond charges the heir to
enter, and on his refusal adjudges the estate. On the title which
he thus acquires he brings a reduction of the adverse deed; and
if he is successful in this, he reconveys the bond and the adjudication
on it to the heir.
929. Entry to Burgage Property.—This form of entry, though
now very peculiar, having been exempted from the provisions of
the recent Act (sec. 35), is the same for heirs and singular successors,
and will, consequently, be treated under Sale. The Act
by which it is regulated is 10 and 11 Vict., c. 49 (1847), "to
facilitate the transmission of lands, etc., held in burgage tenure."
930. Charges Abolished.—Charges were commands in the
Sovereign's name, issued at the instance of a creditor, whereby
the heir was required to take up the succession, and certifying
him that, in case of failure, the creditor should have action
against the estate in the same manner as if he had done so.
1 Ante, p. 155.
These forms are abolished by 10 and 11 Vict., c. 48, sec. 16,
and c. 49, sec. 8; and it is provided that, in an action for the
ancestor's debt against the unentered heir, the citation on and
execution of the summons shall be held to imply and be equivalent
to a charge, and shall infer the like certification.
931. By 21 and 22 Vict., c. 76, sec. 27, the period allowed to
the heir for deliberation, before such actions can be raised against
him, formerly a year, is limited to six months.1
V.—Of Succession in Moveables.
I. Intestate Succession.
932. Moveable follows the same course as heritable succession,
except in three points: It admits, 1st, no preference of males;
2d, no privilege of primogeniture; and 3d, no distinction between
heritage and conquest.
933. Till recently there was no representation by the issue of
a predeceasing next of kin; but this, and several other serious
defects in the Scottish law of intestate moveable succession, have
been removed by 18 Vict., c. 23 (1855).
934. But the rule which places the issue of a predeceasing
next of kin in the parent's place still suffers a limitation. No
representation is admitted among collaterals after the descendants
of brothers and sisters (sec. i.).
935. The former rule, that, after descendants, collaterals
should in every case succeed before ascendants, has been also
modified in favour of the father and mother of an intestate, thus:
936. § III. "Where any person dying intestate shall predecease
his father without leaving issue, his father shall have right
to one-half of his moveable estate, in preference to any brothers
or sisters, or their descendants, who may have survived such intestate."

1 Ante, p. 136.
937. § IV. "Where an intestate, dying without leaving issue,
whose father has predeceased him, shall be survived by his
mother, she shall have right to one-third of his moveable estate,
in preference to his brothers and sisters or their descendants, or
other next of kin of such intestate."
938. The full blood still takes precedence of the half blood;
but as regards brothers and sisters uterine, who were wholly excluded
by the former law, the following is now the rule:
939. § V. "Where an intestate, dying without leaving issue,
whose father and mother have both predeceased him, shall not
leave any brother or sister german or consanguinean, nor any
descendant of a brother or sister german or consanguinean, but
shall leave brothers and sisters uterine, or a brother or sister
uterine, or any descendant of a brother or sister uterine, such
brothers and sisters uterine, and such descendants in place of
their predeceasing parent, shall have right to one-half of his
moveable estate."
940. The following sections, as was formerly observed, have
removed what in many cases were the sole reasons for substituting
the provisions of a marriage-contract for those of the
common law:
941. § VI. "Where a wife shall predecease her husband, the
next of kin, executors, or other representatives of such wife,
whether testate or intestate, shall have no right to any share of
the goods in communion, nor shall any legacy or bequest or
testamentary disposition thereof, by such wife, affect or attach
to the said goods or any portion thereof."
942. § VIII. "When a marriage shall be dissolved before the
lapse of a year and day from its date by the death of one of
the spouses, the whole rights of the survivor, and of the representatives
of the predeceaser, shall be the same as if the marriage
had subsisted for the period aforesaid."
1 Ante, p. 43.
943. Wife's Estate.—These sections do not apply to the separate
moveable estate of the wife, which, in the event of her predecease,
will be disposed of in the following manner:
944. (1.) Should she leave no issue of the marriage, one-half
will go to the husband, whether she die testate or intestate; and
the other half to her next of kin should she die intestate, or to
her assignees should she make a will.
945. (2.) Should she leave issue of the marriage, or should
the husband have issue by a former marriage, he will receive twothirds,—one-third
being subject to the children's claim of legitim
after his death.
946. (3.) The remaining third being dead's part, can alone be
tested on by the wife. In the event of its not being so disposed
of, it passes to her next of kin, who will be her children, if she
have any, by whatever marriage, in the first instance.
2. Of Testate Succession in Moveables.
947. A testament or will (in the law of Scotland, the words
are synonymous) may be made at any period of life beyond the
age of fourteen in males, and twelve in females. The near approach
of death, or the severest bodily or even mental suffering,
will not affect its validity, provided the testator was of sound mind
and acquainted with its contents when he signed it.
948. It must be the last will of the deceased. It is consequently
the rule with us, as with the Jews, that a testament "is
of no strength at all while the testator liveth;"1 and may be
revoked at pleasure.
949. Where several testaments are left of different dates, the
earlier ones are presumed to be revoked by the last, which alone
is effectual.
950. All persons being capable of testing who are capable of
consent, minors require no consent from their curators, wives
1 Heb. ix. 17.
from their husbands, nor interdicted persons from their interdictors.

951. But it is only a person who leaves neither wife nor child
who can dispose of the whole of his moveable estate by will; the
jus relictæ of the widow, and the legitim of the children, being
protected by law from its provisions.
952. Even previous to death, the moment he is seized with
his last sickness, the husband or father is precluded from alienating
the goods in communion to the prejudice of his wife or
children.
953. The share of the goods in communion which falls to the
wife as jus relictce becomes her absolute property. No legitim to
children is due on it, and she can therefore dispose of the whole
of it by will. The subject of jus relictæ has already been treated
under the head of the Husband and Wife.1
954. Legitim.—In the event of there being a widow one-third,
and if there be no widow one-half, of the whole moveable estate
is set apart as legitim, or bairn's part; and over this the deceased
has no power of testing. Considering the peculiar legal character
of legitim as a fund on which the father cannot test, and the definitions
of "intestate" and "moveable estate" given by the interpretation
clause of the statute (18 Vict., c. 23), it is very
doubtful if the right of representation, thereby introduced into
moveable succession, applies to legitim.
955. Dead's part.—The remaining portion of the moveable
estate, which alone may be bequeathed by will, is called the
dead's part. It may be increased, by express renunciations or
discharges of their legal rights by the wife or children, so as
to include the whole estate; or it may be either increased or
diminished by the conventional provisions of a marriage-contract.2
956. Whatever can be positively ascertained to have been the
wishes of the deceased with reference to this portion of his
1 Ante, p. 33. 2 Ante, p. 42.
property, will be carried into effect, provided that they are
neither inconsistent with public law, immoral, insane, nor impossible.
The will of a fool being thus valid, and that of a madman
invalid, many of the difficulties which arise in judging of the
validity of wills are occasioned by the uncertainty of the line
which divides folly from madness.
957. Rules for making a Will.—The two leading objects to be
kept in view in constructing a will, are—1st, That it shall be
clearly expressed; and, 2d, that it shall be obviously the production
of the testator. For the attainment of these objects the
following rules have been fixed:—
958. Verbal and Written.—A verbal expression of intention,
proved by witnesses, will convey legacies to the extent of
L.8, 6s. 8d. (L.100 Scots) each; but if a larger sum is to be
bequeathed, an executor appointed, or any former will or
legacy to be recalled, the will must be in writing.
959. Holograph.—Wills written.with the granter's own hand,
being more difficult of forgery than others, are valid in law
without witnesses. The fact that the deed was so written must
be mentioned in it, otherwise it will require to be proved
by a comparison of the handwriting with other writings of the
deceased, or by the evidence of those who saw him write it.
960. Testing.—If not written by the granter's hand, the will
must be signed by him, if he is able to write, before two witnesses,
who must be males above fourteen years of age.
961. Blind persons, who cannot see the party write, insane
persons, and persons who have a material interest in the deed,
cannot be instrumentary witnesses. Those who have merely
received trifling legacies as marks of regard are not thereby incapacitated
from acting as witnesses; though in practice they
had better be avoided.
962. If the testator acknowledges his signature to the witnesses,
the effect will be the same as if they had seen him write.
The names and designations of the witnesses ought to be mentioned
in the body of the deed.
963. It will be no objection to a will that the testator was
blind when be signed it.
964. If the testator's hand has been led, or letters traced
on the paper for him to follow, the signature will not be held to
be his, and the deed will be reduced.
965. Every page must be signed; and marginal notes must
be signed by writing the Christian name or names above the
note or before it, and the surname after or under it.
966. Subscription by initials, though not invalid, requires to
be proved to be the ordinary practice of the writer, and had
better be avoided. Subscription by a mark is invalid.
967. The deed must either be read by the granter, or read
over to him in such a way as to acquaint him with its contents
before signing. The fact of its not having been read or understood,
however, will fall to be proved by the party who
alleges it.
968. When the testator cannot write, a testament will be
valid, let the subject be ever so valuable, if it be signed either
by a notary or a clergyman, and two witnesses. In the execution
of all other deeds two notaries are required, and it is in
wills alone that the place of a notary can be supplied by a
clergyman.
969. An Executor, or person to execute the will of the deceased,
and to administer the moveable estate for the benefit of all concerned,
is a usual provision, though not an indispensable requisite
in a will. From him the moveable estate is frequently called the
executry of the deceased.
970. The executor is commonly instructed to pay the donations
or legacies to the parties for whom they are destined, though
it is quite competent to convey them directly, and without his
intervention.
971. A legacy is valid though there should be an error in the
name of the legatee, provided there be no doubt as to the
person; and, in general, no clerical, orthographical, or other
error, vitiates a provision in a will, provided the meaning, of the
testator be discoverable.
972. If the legatee predeceases the testator, the legacy, never
having become due, is not transmitted to the representatives of
the former, but continues part of the testator's general executry.
It is otherwise, of course, if the legacy be devised to the legatee
and his executors.
973. Legacies are universal, general, and special.
974. A Universal Legacy is a bequest of the whole moveable
estate, or of the residue of it after the other legacies and burdens
are liquidated ; and the person who receives it is called the
universal or residuary legatee, and becomes the representative
of the deceased in his moveable estate.
975. A General Legacy is a legacy of a thing not otherwise
described than by its quantity or value, as L.50 of money,
without mentioning any particular L.50. The legatee in this
case has a claim only for the amount or value; and if the residue,
after paying the specific claims, is insufficient, the general
legacy will be diminished accordingly.
976. A Special Legacy is where the specific object is mentioned.
In this case the legatee considers it at once as his
own, and he can claim it from the executor so long as it exists;
but if it perish, he has no claim for its value against the
estate.
977. Special legacies thus rank first after the debts of the
deceased, then general legacies, and lastly, the residuary legacy.
978. Conditional Legacy.—A legacy may be burdened with a
condition. If the condition is impossible or illegal, it is held
pro non scripto, and the legacy is unconditional,
979. Substitutions.—Much difficulty is often occasioned by
the substitution of one person for another, and the tendency of
the courts is against supporting substitutions in moveable estate.
In the case of the first legatee predeceasing the testator, if the
bequest was to his heirs, executors, and assignees, it goes to his
proper representative, and not to him to whom he may have
assigned it during the testator's life, because it never came into
his possession, and he never had the power of assigning it.
980. If a bequest is to one and his assignees, without mention
of heirs or executors, it does not vest at all, and neither his heirs
nor assignees have any claim unless he survives the testator.
981. A legacy to two jointly, or jointly and severally, goes to
the survivor, to the exclusion of the heirs or assignees of the
other.
982. A legacy to two equally is equally divided—the heirs or
assignees of each taking a half, provided both legatees have survived.
If one of the legatees predeceases the testator, the other
only takes half the legacy.
983. Form of formerly mentioned that any form of
words which conveys the meaning of the testator unequivocally,
is admissible in a will; and it may be added, that the safety
of the non-professional conveyancer will generally consist in a
studious avoidance of technical terms.1
984. Collation.—Where the estate of the deceased is partly
heritable and partly moveable, the heir in heritage has no share
in the moveable estate if there be others as near in degree as
himself. But as the heir in heritage, where the heritable estate
1 The following form is given, simply with the view of suggesting the requisites
of a Will, in something approaching to a tabular form :—
I, A, do hereby appoint B, whom failing, C, to be my sole executor and universal
legatory, bequeathing to the said B, whom failing, to the said C, the
whole moveable estate that may pertain or be resting owing to me at the time
of my death, under such burdens as may attach to it by law; and I ordain my
said executor to pay and deliver the following legacies to the persons after
named and designed (here specify the legacies and design the legatees). In
is limited, might be unjustly affected by this arrangement, he is
permitted to collate the heritage, i.e., to throw it into the common
stock, and betake himself to his rights as one of the next of kin.
985. This privilege is extended by the late Act1 to the child
of the heir, being heir in heritage of the intestate, "to the effect
of claiming for himself alone, if there be no other issue of the
predeceaser, or for himself and the other issue of the predeceaser,
if there be such other issue, the share of the moveable
estate of the intestate which might have been claimed by the
predeceaser upon collation if he had survived the intestate; and
daughters of the predeceaser, being heirs portioners of the intestate,
shall be entitled to collate to the like effect; and where,
in the case aforesaid, the heir shall not collate, his brothers and
sisters, and their descendants in their place, shall have right to a
share of the moveable estate equal in amount to the excess in
value over the value of the heritage, of such share of the whole
estate, heritable and moveable, as their predeceasing parent, had'
he survived the intestate, would have taken on collation."
986. Even where the heritage is situated in another country,
the heir must collate if he wishes to share in the moveable succession.

987. Confirmation.—To entitle the executor (who, by the late
Act,2 is the surviving next of kin of the deceased, if he shall
claim the office, in preference to the children or other descendants
of any predeceasing next of kin) to sue for the debts due
witness whereof I have subscribed this deed, written (if the deed consists of two
or more pages, say on this and the preceding page or pages, specifying the number)
by (here insert the name and designation of the writer of the will at full
length), at (insert the name of the place where the will is signed), the
day of one thousand, etc., before these witnesses, M and N (here
the full names and designations of the witnesses must be inserted by the writer
of the deed). (Signed) A.
M, Witness.
N, Witness.
1 18 Vict., c. 23, sec. 2. 2 18 Vict., c. 23, sec. 1.
to the deceased, and otherwise to take possession of his property
for the purpose of administering it for the benefit of those having
interest, it is necessary that his character as representative:
should be recognised by the decree of a magistrate. This
decree is pronounced by the Sheriff of the county where the
deceased was domiciled, or, if he was domiciled abroad, or his
domicile be unknown, by the Sheriff of Edinburgh acting as Commissary,
and is called confirmation.1 The confirmation may in-include
personal estate situated in England or Ireland, or both;
and on its being produced in the principal Court of Probate in
England or Ireland, or both, and a copy thereof deposited with
the Registrar, along with a certified copy of the interlocutor of
the Commissary finding that the deceased died domiciled in Scotland,
such confirmation shall be sealed with the seal of said
Court, and shall have the like effect in England or Ireland as if a
probate or letters of administration had been granted by said
Court of Probate.
988. If an executor is named in the testament, he is entitled to
be confirmed in preference to all other claimants, on production
of that document, and of a full inventory of the moveable estate.
989. If no executor is named, the order of choice observed by
the Commissary is the following:
990. 1st, The universal legatee, including trustees; 2d, the
children or descendants of any predeceasing next of kin;2 3d,
the widow; 4th, a creditor, to the extent of any debt which has
been constituted either by a writing by the deceased or by the
decree of a court; 5th, a legatee; and 6th (though the practice
is obsolete), the Procurator-Fiscal of the Court.
991. All executors not nominated in the will, except trustees,
must find security to the satisfaction of the Court. The inventory
is given on oath, and such portions of the estate as are
afterwards discovered must be "eiked" or added to it.
1 21 and 22 Vict., c. 56. 2 18 Vict., c. 23, sec. 1.
992. The executor creditor makes oath to the amount of
his debt, and he must likewise give notice in the Gazette.
993. Persons succeeding to certain small sums, payable by
savings' banks and friendly societies, are exempted from the
necessity of confirming.
994. Order of Payment of Debts.—There are certain privileged
debts, that is to say, debts which the executor is bound to pay
before attending to other claims on the estate of the deceased.
1st, The expenses of a funeral suited to his station and presumed
fortune. 2d, All medical and other expenses connected with
his last illness. 3d, The current rent of the house in which he
died. 4th, His farm and domestic servants' wages for the
period current at his death. 5th, Certain debts which are
privileged by statute; e.g., the payment by ministers to their
widow's fund, and the claims which friendly societies and savings'
banks may have against their office-bearers.
995. The period of six months after the death of the deceased
must be allowed for ordinary creditors to come forward, and
they are then ranked according to the order to be explained
below.1
996. By the 8th sec. of the Intestacy Act (18 Vict., c. 23),
so much of the Act of 1617 as allows executors nominate to retain
to their own use a third of the dead's part in accounting for
the moveable estate of the deceased, is repealed, and executors
have now no right to any part, of the succession. Unless remunerated
by a special legacy, their services are thus entirely
gratuitous.
Taxes Payable on Succession.
997. 1st, A stamp duty is payable on the inventory of the
moveable estate, of about 2 per cent. of the amount or value; a
scale of which will be found in the Stamp Act, 55 Geo. III., c.
1 Voce Bankruptcy.
184. By 21 and 22 Vict., c. 56, sec. 9, the inventory may include
personal estate in England and Ireland. If the property
has been valued too high, a new inventory may be lodged, when
the stamp duty paid on the first will be returned.
998. 2d, A duty is payable on the net value of the whole
moveable estate as set forth in the inventory, and on all interest
and dividends which may have accrued down to the time of
paying the duty, after deducting all debts and expenses.
999. The duty varies from 1 to 10 per cent., according to the
degree of relationship of the legatees to the deceased. Where
the legatee is a lineal descendant or ancestor it is 1 per cent. ;
where he is a stranger it is 10 per cent. The duty is payable
on each legacy of L.20 and upwards ; where the estate is under
L.20 there is no duty payable.
International Law of Succession.
1000. When a Scotchman dies abroad, the first point to be
ascertained is, whether his foreign residence was temporary or
permanent. If the former was the case, his moveable succession
descends to his next of kin according to the law of Scotland; if
not, it follows the law of the country in which he had established
himself, and the laws of which he is presumed to have adopted.
The same rule applies mutatis mutandis to a foreigner dying in
Scotland.
1001. As regards heritage, on the other hand, "it is," says Mr
Erskine, "an universal rule in every country, that the succession
to land estates and all heritable subjects must be governed
by the law of the kingdom or state where they are situated, and
not according to the lex domicilii of the proprietor, though he
should happen to die abroad, and have his settled residence there
at his death."1
1 Institutes, vol. ii.; p. 792.
CHAPTER VII.
OF TRUSTS AND TRUSTERS.
1002. Of Trusts in General.—The forms of trusts and trust--
deeds are as various as the objects which they have in view, and
the provisions which they make for the attainment of these objects.
The following features, however, are common to them all.
1003. (1.) They create a legal estate in the person of the trustee,
for the accomplishment of certain objects prescribed by the truster.
1004. (2.) The purposes of the trust are limitations of the
truster's right of property, and burdens on the estate preferable
to all claims against it which he may create.
1005. (3.) The uses and purposes of the trust may be effectually
declared either in the original deed by which it is constituted, or
by a supplementary deed,—power so to declare them in future
having been reserved in the first deed.
1006. (4.) In so far as not exhausted by the uses and purposes
of the trust, the estate remains the property of the truster, as if
no trust had been constituted; and the trustee is bound to reconvey
it to him or his representatives.
1007. Of the Trustees.—No specific number of trustees is requisite
to constitute a trust; and the number consequently varies
according to the objects of their appointment.
1008. Where the object is to wind up as speedily as possible a
bankrupt or insolvent estate, one trustee has generally been found
most convenient; and, under the Bankrupt Act, there can be but
one trustee in a sequestration.
1009. Where the object is to substitute, during a length of
time, the management of others for that of the actual possessors
of the estate, as in all family settlements, whether by marriage--
contracts, or by trust-deeds' executed in the prospect of death,
several trustees are usually named.
1010. If several trustees are named jointly, the presumption is
that the truster reposed confidence in them only so long as they
acted together; and consequently, if one dies or declines, the
nomination falls.
1011. If a certain number be named as a quorum, the trust falls
unless that number accept, and their concurrence is requisite to
every act.
1012. If one is named sine quo non, his concurrence is indispensable
to every act, and his death puts an end to the trust.
1013. To avoid the inconvenience which might arise from these
rules, the common practice is to declare that the acceptors or
survivors of those who are named shall be the trustees; and in
this case the trust subsists so long as any of those who have accepted
survive.
1014. Where, from any unforeseen cause, the nomination is defeated,
the Court will not authorise a diminished number to
act, but will appoint a factor to carry out the provisions of
the trust.
1015. No one can be compelled to accept, to act, or to incur
the responsibilities of a trustee; but after acceptance he cannot
decline to act, and will be liable for the consequences of doing so
until he resign or be discharged. Acceptance must be either express
or implied by the acts of the trustee himself. But, once
accepted, the office cannot be thrown up at the will of the trustee;
nor will his resignation of it, even where from the terms of
the deed that may be competent, be presumed without the most
express declaration of his intention.
1016. If no power of voluntary resignation be contained in
the deed, the Court of Session will exonerate and discharge
the trustee only where it is proved to them that his duties
have been fully discharged, that it has become impossible for
him in fact, or incompetent for him in law, to discharge them,
or where bad health, necessary and permanent absence, or some
other very sufficient reason for resignation is established; but
not where the trust has merely become inconvenient or disagreeable.1
If, from an unforeseen change of circumstances, the
trustee shall come to be in a position wholly different from that
which he reasonably anticipated when he accepted the office, or
in which the truster intended he should be placed, he would be
entitled to claim exoneration, on the ground that the trust is no
longer that which he undertook. But a very strong case of this
description will be necessary to warrant an application to the
Court with any prospect of success.
1017. Where the purposes of the trust are completed, and all
the parties interested agree to its being wound up and the trustee
exonerated, this may be done by a regular written discharge,
which the trustee must be careful to have signed by all who are
interested in the trust. If a minority of the beneficiaries, however
insignificant, should refuse their concurrence, an applica.tion
to the Court will be necessary. When the purposes of the
trust are accomplished, the trustees may be compelled to denude
by an action of declarator of trust and adjudication.
1018. Where the trustees are empowered to assume others
into the trust, or to devolve it on them, this power may be exercised
even on deathbed.
1019. If the purposes of the trust are expressed in intelligible
language, either in the trust-deed or in a separate deed, the
powers of the trustees will be in accordance with these purposes;
and whatever is essential to the accomplishment of the purposes
of the trust will be implied as a power in the trustees. Trustees
will thus be justified in selling land for the payment of debt, and
in building a mansion-house on land which they are directed to
purchase and entail.
1020. Trustees are generally empowered to name a factor; and
1 Logan v. Clyne's Trustees, May 26, 1843. Hill v. Mitchel, Dec. 9,1
Dick's Trustees v. Pridie, June 9, 1855.
even when no such power is expressed, it will be presumed,—the
office of the trustee being gratuitous.
1021. They cannot supersede a factor named by the truster.
1022. Where the trustees appoint one of their own number, the
Court will not recognise his claim for payment of his business
account out of the trust-funds, unless such appointment has been
authorised by the trust-deed.
1023. Responsibility of Trustees.—Trustees may be liable either
as trustees or as individuals.
1024. As trustees, they are liable to the extent of the trust--
funds for the faithful execution of the trust, and for the fulfilment
of obligations undertaken by themselves or their factor. As
individuals, they are liable when, under cover of their character of
trustees, they occasion damage to a third party, resist or culpably
neglect the performance of their duty, or exceed their powers.
1025. As trust is not only a gratuitous and troublesome, but
too often also a thankless office, trust-deeds generally contain, as
an inducement to accept, a clause freeing the trustees from liability
for omissions, and limiting their responsibility to their own actual
intromissions. But difficulties not unfrequently arise as to the
distinction between intromissions and omissions; and it may be
stated as a general rule, that where negligence possesses the
positively culpable character known to the law as culpa lata, the
exempting clause will not protect the trustee.
1026. With the same object it is now usual to insert in family
trust-deeds a clause empowering the trustees to resign, and the
validity of such a clause has been sustained by the Court.1
1027. Where trustees have elected a factor, reputed responsible
and fit for the office, they will be protected by such a
clause from liability for his faults or deficiencies, where they have
merely been negligent in superintending him.2
1 Gilmour v. Gilmo-ar's Trustees, Feb. 7, 1852.
2 ForTrustee in Sequestration, see Bankruptcy.
BOOK. II,
OF THE RELATIONS BETWEEN INDEPENDENT
MEMBERS OF THE COMMUNITY.
1028. THE subject of trusts and trustees, belonging partly to
the arrangements of the family, and partly to those between
persons connected by no other ties than those of a common
country, forms, as it were, a connecting link between what may
be regarded as the two great natural divisions of Private Law.
In passing from the contract of marriage, and its consequences in
the domestic relations and the law of succession, to such contracts
as sale, letting and hiring, insurance, partnership, agency,
and the like, we finally quit the family and its laws, and enter
upon the arrangements by which intercourse is carried on between
independent members of the same community.
1029. To the whole of this vast department, when regarded
as exclusive of the relations of the citizen to the governing
power, and using the words in a very comprehensive sense, the
name of Mercantile Law may not inappropriately be given.
1030. From the extensive connection which they enjoyed with
the Continent, the lawyers of Scotland became early acquainted
with those commercial arrangements which the Lombards in the
south, and the members of the Hanseatic League in the north, of
Europe, had based on the principles of the Roman jurisprudence.
To this cause, coupled with the active continental
trade which the country carried on, is to be ascribed the fact
that, down to the period when the affairs of Scotland were
thrown into confusion by the Rebellions of 1715 and 1745, mercantile
law was cultivated in Scotland with much care and success.
The learning of the feudal lawyers was called into prominent
activity by the questions connected with the relations of
superiors and vassals to which the numerous forfeitures which
followed the Rebellions gave rise; and it was not till the commencement
of the present century that the mercantile law of
moveables came again to be a leading object of study with Scottish
lawyers.1 The impulse which led to its revival was derived,
not from the Continent, but from England; but it must ever be
a source of honest pride to reflect that this impulse originated
with our own countrymen. Lord Mansfield, who has been
called the father of the commercial law of England, was a
Scotchman; and two of the most illustrious of his disciples, in
different branches of the same department, bore the name of
Scott.
CHAPTER I.
OF THE CONSTITUTION OF CONTRACTS IN GENERAL.
1031. In treating of marriage, which in the eye of the law is
simply a civil contract, and of the guardianship of those who are
incapable of contracting, we had occasion to explain the nature
of consent, which is the essence of all contracts. The subject will
receive further illustration from the other contracts of which we
are about to speak, and it will, therefore, be sufficient if we here
recur to it very briefly.
1 On this interesting subject the reader is referred to the Introduction to the
valuable Commentaries of the late Professor Bell, himself the leading authority
on the Mercantile Law of Scotland.
1032. The consent which constitutes a legal obligation must
be deliberate and.voluntary. By requiring that it shall be deliberate,
the law deprives all persons who are imbecile, whether
from nonage, mental disease, or mental decay, of the power of
entering into contracts; and by declaring that consent shall be
voluntary, it deprives of the character of legal obligations all
engagements which have been entered into from error, force, fear,
or fraud.
1033. Error must be in essentials; that is to say, it must be of
such a kind as may reasonably be presumed to have affected the
consent.
1034. Force and Fear must be such as to overpower a mind
of ordinary strength and firmness. A smaller amount of violence
or intimidation will annul the engagement of a woman, a child,
or a man in old age or in sickness, than of a man in health and
vigour.
1035. Fraud. — A stratagem sufficient to deceive a person of
ordinary capacity, and which has actually led to the engagement,
will ground an action for reducing it. If, on the other hand,
the fraud was only an accompaniment of a contract in which
the parties would otherwise have engaged, it will, in certain
cases, give rise only to an action of damages. Fraud may be
perpetrated by false representation, by concealment, by underhand
dealing, or by inducing imbecility by means of intoxication
or otherwise.
1036. The nullity which is created by the want of consent,
in obligations entered into from error, force, or fraud, must be
ascertained judicially; all contracts ostensibly valid subsisting
till they are reduced by an action at law.
1037. Written Contracts, strictly speaking, are such as are
effectual only when written; that is to say, in which writing is
required not only in proof, but in solemnity. Of this description
are all obligations relative to the transference of land and ships.
1038. The mode of attesting writings, whether written by
another or by the granter, has been already explained, in treating
of Wills.1 The same rules apply to written obligations of
every description, whether unilateral or binding on more parties
than one. The law takes no cognisance of mere purposes to
engage. "The only act of the will," says Lord Stair, "which
is efficacious, is that whereby the will conferreth or stateth a
power of exaction in another, and thereby becomes engaged to
that other to perform."
1039. Locus Penitentiæ. — The opportunity which is consequently
afforded to the party binding himself of resiling from
an incomplete engagement, an unaccepted offer, or an obligation
requiring writing, but to which writing has not yet been adhibited,
is called locus penitentice. As an instance of locus penitentiæ,
may be mentioned the power which belongs to either party of
declining to celebrate a marriage after having signed the marriage-contract.
In this, as in many similar instances, though
the incomplete obligation cannot be enforced, it will give rise to
an action of damages.
1040. Locus penitentiæ may be excluded by the course of acting
of the party pleading it, subsequent to the engagement.
1041. Rei Interrentus is an act on the part of the obligee, or
person in whose favour the obligation is made, permitted by the
obligor, or person obliging himself, on the faith of the agreement,
whereby an alteration has taken place in the circumstances
of the parties.
1042. Homologation is an act of the party obliging himself, or
his representative, whereby an engagement, in itself defective or
informal, is dealt with as binding; Homologation implies not
only assent to the engagement, but full knowledge of its extent
and consequences.
1043. Immoral Contracts, and such as are inconsistent with public
1 Ante, p. 163.
policy, are void. Under these heads fall bonds imposing restraint
on marriage: e. g., not to marry at all, or to marry a particular
person named in the bond, or to be named by a third party;
agreements for perpetual service; contracts for defeating the
revenue laws, or inconsistent with the war policy of the country.
But after smuggled goods are in circulation the bona fide purchaser
will be allowed action for their delivery.
1044. Gaming Debts and Wagers cannot be enforced. This
rule, as regards the former, is supported by the Gambling Acts,
9 Anne, c. 14, and 1621, c. 14, and is extended to the latter
by the common law of Scotland; in accordance with which it has
been held "that courts were instituted to enforce the rights of
parties arising from serious transactions, and can pay no regard
to sponsiones ludicræ." The exclusion of such contracts by the
common law of England is a view of the matter which several of
the most distinguished of the English judges have regretted that it
is "almost too late to adopt." But questions of law, which it will
be competent for the courts to decide, may arise out of sporting
transactions, — e. g., where, at a coursing meeting, the stewards,
as judges of the running, determined in favour of a certain dog
it was held competent for the Court to decide which of two parties
had that interest in the winning dog which entitled him to
the prize.'
1045. Contracts made on Sunday are good in Scotland.
1046. Tippling Act. — By 24 Geo. II., c. 40, sec. 12, it is
enacted that "no person shall recover any sum of money, debt,
or demand, on account of spirituous liquors, unless it shall have
been bona fide contracted at one time to the amount of 20s. or
upwards; nor shall any particular article in any account for distilled
spirituous liquors be allowed, where the liquors delivered at
one time shall not amount to the full value of 20s. at the least."
1047. This Act has been held to apply to wholesale as well as
1 Graham v. Pollock, Feb. 5, 1818.
retail dealers, and although the spirits be not consumed on the
premises. It extends to spirits mixed with water, but not to wines.
CHAPTER II.
OF THE CONTRACT OF SALE.
1048. Sale is a contract whereby one of the parties becomes
bound to transfer the property of an object to another for a
specified price in current money, which that other becomes
bound to pay for it.
1049. If the price is to be paid in foreign coin, it must be in
coin on which some determinate value has been set by the usages
of exchange; otherwise the contract will be one of barter, not
of sale.
1050. There must be a price, and a price not altogether illusory,
for that would be donation, and not sale; but it is not
necessary that the price should be adequate, though the fact of
its being flagrantly the reverse would be an important adminicle
of evidence in support of a plea of fraud.
1051. Things not yet in existence may be sold, as the hope of
a succession, the goodwill of a business or trade, the draught of
a net, etc.; but not things the importation or use of which is
absolutely forbidden. The prohibition in such cases, however,
must be express, as of diseased meat or unwholesome provisions,
by the Police Acts.
1052. The intervention of writing is not necessary to the sale
of merchandise or moveables in general; but it is the only
evidence that will be admitted to prove the sale, — 1, of land;
2, of ships; 3, of copyright; 4, of bonded goods in the importer's
warehouse.
I.—Sale of Moveables.
1053. 1. Delivery. — The contract of sale, like all other contracts,
is perfected by consent alone; and delivery on the one hand, and
payment on the other, may, therefore, be legally enforced. Still,
the property of the object sold was not considered by the law of
Scotland to have passed to the buyer by the completion of the
agreement, and, till delivery, it continued to be attachable by
the creditors of the seller. This doctrine has been much qualified
by the Mercantile Law Amendment Act (19 and 20 Vict.,
c. 60), which enacts (sec. 1), that, "where goods have been
sold, but the same have not yet been delivered to the purchaser,
and have been allowed to remain in the custody of the
seller, it shall not be competent for any creditor of such seller,
after the date of such sale, to attach such goods as belonging to
the seller by any diligence or process of law, including sequestration,
to the effect of preventing the purchaser, or others in
his right, from enforcing delivery of the same; and the right of
the purchaser to demand delivery of such goods shall, from and
after the date of such sale, be attachable by, or transferable to,
the creditors of the purchaser."
1054. Notwithstanding the adoption of this rule, the imputant
subjects of the transference of property and risk in sale, cannot
be said to be yet placed on a satisfactory or permanent footing.1
The principle towards which legislation seems to be tending
is, that transference both of property and risk shall be held to
have been effected in every case by the simple completion of
the agreement, irrespective of delivery altogether; and that the
agreement shall be held to be complete, and to possess the
full characteristics of a contract, if, 1st, the price is fixed or
1 See the elaborate judgment of the Lord Justice-Clerk, in Hansen v. Craig
Feb. 4, 1859, and a very sensible article on the subject in the Journal of Jurisprudence
for May 1859.
discoverable; and, 2d, if the object itself is in existence, or its
quantity and quality ascertained or ascertainable. When this
principle is fixed, questions of transference will become questions
not of law, but of fact. But this principle has not as yet received
full judicial recognition, and it is safer in the meantime to hold
that the enactment has made no change in our previous law of
sale beyond its express terms. In the case of Hansen, referred
to below, though subsequent by more than two years to the data
of the statute, the Lord Justice-Clerk (Inglis) observed — "By
the Roman law and ours no property can pass to the buyer without
delivery, actual or constructive."
1055. At present the following seem to be the rules most
generally recognised by the Court:—
1056. (1.) If a specific object, already possessing a separate
existence, and of known quantity, be sold for a specific price,
the right to that thing has been conferred on the buyer, and it
henceforth lies for delivery with the seller at the buyer's risk.
1057. (2.) If, on the contrary, a certain number or quantity,
described by weight or measure, be sold for a specified price,
either without reference to any particular stock of which it forms
part, or with reference to a particular stock from which it has not
yet been separated, no specific right has been conferred, and the
risk remains with the seller.
1058. (3.) The same is the case, though the object be specific,
if its quantity be unascertained e. g., if a cask of wine of unascertained
quantity be sold at so much a gallon or so much
a quarter, the corpus of the subject is not so specific or the price
so fixed as to complete the contract or transfer the risk.1
1059. (4.) As regards the price, Mr Bell seems to have stated
1 The ground on which the case of Hansen v. Craig (ut sup.)was held to be an
exception to this rule was, that "within the contract itself there was a statement
of particulars which enable any man, without going beyond the contract, by
simple arithmetical process, to ascertain the cumulo price for himself."
the received doctrine when he says, "The price must be certain,
or referred to such standard or criterion as to fix it beyond
question, as to the sheriff-fiars fixing the price of grain, or the
award of a third party, or even of one of the parties, subject to
the control of equity, or the market or current price at a particular
time or place."1
1060. (5.) But the seller's risk is continued, even as regards a
specific object, if he has either committed a fault in delaying to
deliver, or if, by undertaking to deliver at a certain place, he has
come under an implied obligation to bear the risk till delivery.
In either case the buyer will be entitled to demand not only restitution
of the price, but damages for any loss which the want
of the article may have occasioned, even though it should
have perished by an accident over which the seller had no
control.
1061. (6.) If the time and manner of delivery be stipulated,
these, by force of stipulation, are inter essentialia of the contract,
and the contract will be violated unless the stipulations be complied
with.
1062. (7.) If there are no stipulations on these points, delivery
must be made in a reasonable manner, and within a reasonable
time, after the price has been paid. Wherever an established
usage of trade can be discovered, it will govern the time and
manner of delivery in the absence of express stipulations. If no
place of delivery be fixed, the general rule is, that it shall be
where the goods are at the time of the purchase; and if the
buyer be at a distance, the seller's duty and risk end with delivery
to the proper carrier.
1063. Delivery is either Actual or Constructive. — The forms
which have been established for the symbolical delivery which
the law, till recently, required in the transference of heritable
property, will be explained under Sale of Heritage.
1 Princ. 92.
1064. Actual delivery of moveables may be effected in many
other ways than by simply placing the commodity in the hands
of the purchaser:
1065. (1.) It may be delivered to his clerk, his servant, or his
authorised and known agent.
1066. (2.) It may be placed in his warehouse, or his cart, or
his vessel; and these may be either in charge of his own servants,
or of others hired by him for the purpose of receiving the goods.
1067. (3.) It may be delivered into the warehouse of a wharfinger
whom the buyer is accustomed to employ, or into the
Queen's warehouse for his behoof.
1068. (4.) The key of the warehouse, cellar, or other place of
deposit where the goods are kept, may be delivered to him or to
his accredited servant or agent. Or,
1069. (5.) Real delivery may be effected by any other means by
which the commodity is placed in the power of the buyer, and
beyond the power of the seller, provided this be done either at
the seller's instance or with his consent.
1070. Constructive _Delivery will be effected:
1071. (1.) By marking the goods, e.g., trees, cattle, or the
like, with the peculiar mark which he employs in his trade. In
the case of cattle, it is desirable that they be removed to a field
not belonging to the vendor.1
1072. (2.) By setting apart the goods in the seller's warehouse,
and charging warehouse rent for them, with the buyer's knowledge
and consent.
1073. (3.) By intimating a delivery order to a third party
acting as custodier of the goods, or having them transferred in his
books from the name of the seller to that of the buyer; or by any
other means commonly recognised as delivery in the branch of
trade to which the transaction belongs. In all these cases payment
of the price is also essential.
I Lang v. Bruce, July 7, 1832.
1074. Failure to Deliver. — If the seller fail to deliver, the
buyer has three courses open to him He may — 1, Annul the bargain,
and so end the matter; 2, Insist for performance, and
damages for delay; or 3, If performance could no longer serve
his purpose, he may insist for damages for non-performance.
1075. 2. Implied Conditions of Sale. — (1.) The usages of trade,
if not expressly excluded, are implied conditions in sale as in all
other mercantile contracts. For example, a sale without specific
conditions implies the credit usually given in the line of trade
under which it falls.
1076. (2.) No local usage or custom will be admitted if unknown
to one of the parties.
1077. (3.) Weights and Measures. — All British sales are ruled
by the imperial weights and measures; all local and customary
measures having been finally abolished by 5 and 6 Will. IV., c. 63.
1078. It is provided by that statute, that any one selling by
any measure other than the imperial measures, or some multiple
or aliquot part of such measures, shall be liable in a penalty not
exceeding forty shillings for every such sale. But it is declared
that this provision shall not prevent the sale of any articles in
any vessel not represented as containing any amount of imperial
measure, or any fixed local or customary measure heretofore in use.
1079. All weights and measures are ordered to be stamped,
the weights on the top or side, the measures of capacity on the
outside; and it is enacted that they shall not be stamped if made
of lead or pewter, unless they be wholly and substantially cased
with brass.
1080. The fiar's prices in Scotland must be struck by the imperial
measure.
1081. The justices of the peace in counties, and the magistrates
in county towns, are instructed to provide copies of the
imperial weights and measures verified and stamped at Exchequer,
for comparison with the weights and measures in use in their respective
jurisdictions; to appoint inspectors for the safe custody
of such copies, and for the other purposes of the Act, and to
allot to each inspector a separate district.
1082. When the justices and magistrates shall agree, the
whole or part of a county may be united with a Royal burgh,
and placed under one inspector. The justices and magistrates
are to provide stamps for the use of the inspectors; and determine
on what days they are to attend, with the stamps and
copies in their custody, at market towns, for the purpose of
examining, comparing, and stamping if found correct, all such
weights and measures as may be brought to them.
1083. Every person who shall be found, on complaint of a third
party, to use any weight or measure other than those authorised
by the Act, and stamped according to its provisions, or which
shall be found to be light or otherwise unjust, shall forfeit a
sum not exceeding five pounds; and any contract or sale made by
such weights or measures shall be wholly null and void.
1084. It shall be lawful for every sheriff, justice, or magistrate,
and for any inspector appointed by them, at all seasonable
times, to enter any shop, stall, warehouse, etc., and there to examine
all weights and measures; and if it shall appear that the
weights or measures are light, or otherwise unjust, they shall be
seized, and the person in whose possession the same shall be
found shall forfeit a sum not exceeding five pounds.
1085. The same penalty is imposed upon those who shall refuse
to produce their weights, or shall otherwise obstruct the
examination.
1086. Penalties are likewise imposed on inspectors for the
negligent or dishonest discharge of their duties; and it is provided,
that in both cases the penalties shall be recoverable before
a sheriff, or two or more justices or magistrates of any burgh in
which the offence is committed.
1087. If the penalties are not paid within fourteen days, they
may be levied by poinding and imprisonment for a period not exceeding
sixty days.
1088. The penalties are directed to be applied to the fund
liable to provide copies of the standards, after deducting so much
as the magistrate shall order to be paid to the informer, which
must not exceed one-half of the penalty.
1089. An appeal lies to the Court of Justiciary.
1090. (4.) If an order be given for several articles, it is an
implied condition that the whole shall be sent, and the buyer is
entitled to refuse a portion of the order.
1091. (5.) Where the buyer has seen and examined the
goods, the maxim, that the "buyer's eye is his merchant," holds
both in Scotland and England; and the subject cannot be refused
unless either special warranty, sale for a special purpose, or
fraud be proved.
1092. It will be considered fraud if the seller knew of a
material latent defect, and concealed it, or if he framed a
statement calculated to mislead. There is to this extent,
by the law of Scotland, notwithstanding the limitations to
implied warranty introduced by the Mercantile Law Amendment
Act, sec. 5, an implied warranty where the fault is latent, and
known to the seller, even where the purchaser has seen the goods.
1093. The customary commendations bestowed on their commodities
by tradesmen will not be regarded as fraudulent statements,
so long as they are simply extravagant in degree; but
if positively at variance with facts known to them, they will not
be permitted to enjoy the protection which custom has extended
to ordinary "puffing."1
1094. (6.) Where goods are sold by sample, they may be rejected
on implied warrandice, if they do not, on delivery, correspond
with the sample.
1095. (7.) When the goods are afterwards to be furnished to
1 Vide infra, Special Warranty, p. 189.
the buyer, and no sample is exhibited, they may be rejected if
they do not possess the ordinary merchantable character of the
commodity.
1096. If the buyer does not make his challenge immediately,
or at least without unreasonable delay, it will not free him from
the contract. Where the fault is manifest, and the commodity is
of a kind to be injured by keeping, the challenge must be instantly
made. Sometimes, by the custom of the particular trade,
a certain time is allowed for examination.
1097. (8.) Solvency is an implied condition where sale is on
credit; and if the buyer fail, or be vergens ad inopiam, the seller
may refuse to proceed.
1098. 3. Express Conditions of Sale. — Any conditions may be
introduced by positive stipulation, provided they be neither illegal
nor impossible.
1099. (1.) A special condition of "ready money" suspends
the passing of the property even in questions with creditors. It is
supposed that under such a stipulation by the seller, goods sold
but not delivered would be attachable by the seller's creditors,
notwithstanding the 1st clause of the Mercantile Law Amendment
Act (19 and 20 Vict., c. 60).
1100. (3.) If the agreement be that "a bill shall be given for
the price," it is sufficient if the bill be sent after reasonable time
has been taken to examine the goods.
1101. (4.) If the agreement be that the bill shall "be sent
in course," the stipulation must be literally fulfilled.
1102. (5.) If a discountable bill be stipulated, the bill must be
such as will at once produce money at the banks.
1103. (6.) An "approved bill" is one to which no reasonable
objection can be made, — not a bill to be approved or rejected at
the caprice of the seller.
1104. (7.) If a "bill" be stipulated for, it is held to be the
buyer's own bill; and the seller may object to his credit — 1, If
the sale has been effected by a broker, and on inquiry he finds the
buyer's credit insufficient. In this case, however, there must be no
undue delay in intimating his dissent. 2, If the buyer's circumstances
have been concealed; or 3, If they have changed for the worse
during the time between the bargain and the tendering of the bill.
1105. (8.) Where the goods are sold "on arrival of a certain
ship," there is no sale if the ship perish.
1106. (9.) Where the delivery is to be "on arrival, not beyond
a certain day," there is no bargain unless the goods arrive
in time for delivery.
1107. 4. Sale and Return. — This is either a sale conditional
on approval generally, or within a specified time; or an arrangement
between wholesale and retail dealers (as between publishers
and booksellers), where goods are sent to the latter on the understanding
that those articles only are to be transferred which
they can dispose of.
1108. 5. Special Warranties. — One of the leading objects of
the Mercantile Law Amendment Act was to assimilate the law of
Scotland to that of England, as regarded warranties.
1109. The clause which has reference to this important subject
is the following :—
1110. "§ 5. Where goods shall, after the passing of this Act,
be sold, the seller, if at the time of the sale he was without knowledge
that the same were defective or of bad quality, shall not
be held to have warranted their quality or sufficiency, but the
goods, with all faults, shall be at the risk of the purchaser, unless
the seller shall have given an express warranty of the quality or
sufficiency of such goods, or unless the goods have been expressly
sold for a specified and particular purpose, in which ease the seller
shall be considered, without such warranty, to warrant that the
same are fit for such purpose."
1111. Horses. — It has been held in a recent case,1 that
1 Young v. Giffen, Dec. 4, 1858.
the word "goods" in this section includes "horses and other
animals." The implied warrandice of soundness from serious
defects, under which they have hitherto been sold in Scotland,
is thus swept away, and the English practice of express warranty
introduced. It will therefore be necessary in future that the
pursuer allege express warranty.
1112. 6. Payment must be in cash, if insisted on.
1113. When the buyer's bill, or note, or cheque is taken in
payment, he will not be discharged if it be dishonoured.
1114. But when bank notes, or the bill or the note of a third
party is taken, without indorsation or recourse on the buyer, the
seller has no remedy if they should prove bad by insolvency of the
bank or third party. The reverse will be the case if the buyer
knew of the insolvency, or omitted any observance necessary for
procuring payment.
1115. If, on presenting the buyer's bank cheque, the seller
agree to receive as payment a bill on a third party, the buyer is
discharged though that bill be afterwards dishonoured.
1116. If the buyer refuse to take delivery, he will be liable in
warehouse rent or damages to the seller.
1117. 7. Of Stoppage in Transitu, and Retention of Goods by the
Seller. — The English rule, that goods of which the price has not
been paid may be arrested in the course of their transit, either to
the seller himself or to the destination which he has assigned them,
if they be still in the hands of a middleman, was introduced into
Scotland by a decision of the House of Lords towards the end of
last century.1 It superseded the more comprehensive doctrine
common to the rest of Europe, that restitution should be allowed
to the seller if the buyer became bankrupt within three days, on
the ground that he must have been aware of his position at the
time of the sale. The doctrine of stoppage, which is of modern
1 Allan, Stewart, and Co. v. Stein's Creditors, 4th Dee. 1788 and 23d Dec.
1790, M. 4949.
origin even in England, took its rise in Chancery, and was afterwards
adopted by the Courts of Common Law.
1118. The right of stopping exists only in the seller himself,
not in his creditors, nor in any factor, cautioner, or other person
possessing only an incidental interest in the transaction; but a
person sending goods to be sold on the joint account of himself
and the consignee is entitled to stop them. By the Mercantile
Law Amendment Act, 19 and 20 Vict., c. 60, the same rule has
been adopted with reference to the retention of goods still in the
custody of the seller. It is provided by that Act, that "where
goods have been sold, but the same have not been delivered to the
purchaser, and have been allowed to remain in the custody of the
seller, it shall not be competent for any creditor of such seller,
after the date of such sale, to attach such goods as belonging to
the seller by any diligence or process of law, including sequestration,
to the effect of preventing the purchaser or others in his
right from enforcing delivery; and the right of the purchaser to
demand delivery of such goods, shall, from the date of such
sale, be attachable by, or transferable to, the creditors of the
purchaser." Sec. 1.
1119. By the second section, it is declared, that "the seller
himself shall not be entitled to a right of retention against a
second or any subsequent purchaser; but with this proviso, that
nothing in this Act shall prejudice or affect the right of retention
of the seller for payment of the purchase price of the goods sold,
or such portion thereof as may remain unpaid, or for the performance
of the obligations or conditions of the contract of sale,
or any right of retention competent to the seller, except as between
him and the subsequent purchaser, or any such right of retention
arising from express contract with the original purchaser."
1120. By section 4 the seller's rights are guaranteed against the
original purchaser. "Any seller of goods may attach the same
while in his own hands or possession, by arrestment or poinding
at any time prior to the date when the sale of such goods to a
subsequent purchaser shall have been intimated to such seller."
1121. The landlord's right of hypothec and sequestration for
rent are saved from the operation of the statute. Sec. 4.
1122. The payment of a part of the price does not take away
the right to retain or to stop, neither does the delivery of a part
take away that right as regards the remainder. Absolute bankruptcy
of the buyer is not required. Insolvency, or such a change
of circumstances as to justify a suspicion of the solvency, is sufficient
to justify the seller in retaining or stopping delivery. If
the goods are delivered to the clerks, servants, warehousemen,
shipmasters, or other persons acting as the hands of the buyer,
the right of stoppage is at an end. Goods still in the seller's
warehouse, or in the hands of his people, may be retained, although
he have given a delivery order to the buyer.
1123. The following may be enumerated as middlemen, or
persons in whose hands goods may be stopped :—1. Carriers by
land or water; 2. packers; 3. wharfingers; 4. warehousemen;
5. porters and all others employed in the carrying trade.
1124. A middleman may, by special arrangement, become the
agent of the buyer, e. g., where a wharfinger's warehouse is made
the final repository of the goods, or where a carrier has been
directed to keep the goods for the accommodation of the buyer.
1125. The transit will further be held to be at an end in the
following cases :—
1126. 1st, Where goods are delivered to a wharfinger or to the
keeper of a warehouse with a delivery note to the buyer. 2d,
Where the goods are entered in the books of the warehouseman
or wharfinger in the buyer's name, and generally where the goods
simply abide the orders of the buyer.
1127. It is often very important for the purposes of trade that
the buyer shall have it in his power to dispose of the goods
before their arrival; and sales of goods while at sea are consequently
accomplished by transferring the bills of lading, which
are negotiable documents like bills of exchange. This object
could not be attained unless those bills of lading gave an unconditional
power of disposal, and it has, after much doubt, been
recognised as the rule of law, as it had long been that of mercantile
usage, that the consignee, by the indorsation of his bill of
lading for value, without notice, confers on the indorsee an absolute
right, thus depriving the consignor of his right of stopping
in transitu. The bill of lading, of course, must be honestly
assignable, and the whole transaction in the fair course of ordinary
mercantile dealing.
1128. In opposition to the English practice, a bankrupt in
Scotland is not only entitled to decline to accept of goods even
when constructively delivered, but it has been regarded as
amounting to fraud on his part and on that of his creditors, if,
after bankruptcy, they take delivery of goods which they know
to be still subject to stoppage.
1129. Modes of Stopping. — No specific form or solemnity is
necessary. The most complete stoppage will be either by the
presentment of a bill of lading to the shipmaster, or by the warrant
of a judge; but a private countermand will suffice, even
though verbal.
1130. Physical possession of the goods, even by the buyer
himself, will not prevent stoppage or recovery, if he have failed
to perform an express and absolute condition attached to the
delivery, e.g., that the price should be paid at the time, or a
bill given.
1131. When the goods have been delivered by mistake, after
an order to stop has been received by the carrier, restitution may
still be obtained.
II. — Sale of Ships.
1132. The transference and burdening of property in ships is
now regulated by "the Merchant Shipping Act of 1854" (17
and 18 Vict., c. 104).
1133. By sec. 19 it is provided that every British ship, except
certain small coasting and fishing vessels, shall be registered, her
name, tonnage, length, area, and the names and descriptions of
her owner or owners; and if there be more than one owner, the
proportions in which they are interested in the ship shall be set
forth in the manner provided by the Act.
1134. The collector, controller, or other principal officer of
Customs is appointed registrar at any port or place in the United
Kingdom or Isle of Man, and beyond these limits it is usually the
governor or lieutenant-governor of a colony, in conjunction with
the officers of Customs, sec. 30.
1135. Applications for registry shall be made by the person or
persons requiring to be registered as owners, or by an agent
authorised in writing; and a declaration of ownership and other
particulars regarding the ship, shall be made by the applicant and
subscribed before the registrar or a justice of the peace, secs. 35,
38. In addition to the declaration, ownership must be established
by a certificate from the builder, sec. 40. Upon the completion
of the registry, a certificate or extract of the registration
shall be granted by the registrar.
1136. Any change which takes place in the registered ownership
shall be indorsed on the certificate by the proper registrar
at the port where the ship chances to be at the time, see. 45.
1137. Transference. — By sec. 55 it is enacted, that when a
registered ship or any share therein is to be disposed of, it shall
be transferred by bill of sale. Such bill of sale shall contain a
description sufficient to identify the ship to the satisfaction of the
registrar, and shall be executed by the transferer in the presence
of and be attested by, one or more witnesses, sec. 55.
1138. A declaration having been made by the transferee to the
effect that he is entitled to be an owner of a British ship, sec. 56,
"the bill of sale shall be produced to the registrar of the port at
which the ship is registered, together with the declaration of the
transferee; and the registrar shall enter in the register book the
name of the transferee as owner of the ship or share contained in
the bill of sale, and shall indorse on the bill of sale the fact of
such entry having been made, with the date and hour thereof;
and all bills of sale shall be entered in the order of their production,
to the registrar," sec. 57.
1139. Similar regulations are introduced for the transmission
of ships or shares in consequence of death, bankruptcy, or
marriage.
1140. By sec. 66 a form of "mortgage" is provided, and it is
directed that, on the production of such instrument, the registrar
of the port at which the ship is registered, shall record the
same in the register book.
1141. By subsequent clauses, provisions are made for the
transference of mortgages, whether by sale or in consequence of
death, bankruptcy, or marriage, and it is enacted that the mortgages
shall be entitled to priority as documents of debt, according
to the date at which they are recorded in the register book,
and not according to their own dates.
III.—Sale of Heritage.
1142. The sale of heritable property, in so far as it is a contract
between buyer and seller, is regulated by the principles of
the contract of sale already explained.
1143. Writing is indispensable to its constitution; and, as
some time must elapse before the titles of the seller can be examined,
and the formal conveyance executed, it is customary
for the parties either to execute a formal minute of sale, or to
interchange written missives, fixing the conditions of the bargain.
A complete contract is thus constituted, to which the ordinary
rules as to locus penitentiæ, rei interventus, and homologation, are applicable.
If not holograph of the parties, missives of sale must
be authenticated like other probative deeds; and a minute of
sale is always a regular deed, written on stamped paper, with a
clause of registration for diligence, and a testing clause. When
missives of sale are not written on stamped paper they must be
stamped afterwards before they can be founded on in a court of
law.
(1.) Constitution and Transmission of Heritable Rights.
1144. The constitution of heritable rights and their formal
transmission, whether by inheritance or purchase, are still regulated
both in this country and in England, in accordance with
the relations which subsisted between the overlord, or feudal
superior, and his vassal, in a condition of society which, for centuries,
has ceased to exist.
1145. It would be difficult to assign any purpose which the
feudal system has served for many generations, except that of
complicating the titles of heritable proprietors, and increasing
the expense, and not unfrequently the risk, attending their transmission.
So strongly, indeed, have the inconveniences of our law
of heritable property been felt, that in almost every session in recent
years, Parliament has effected some fresh innovation on its
provisions. Still the skelton of the feudal system has been permitted
to remain; and, as an existing institution, must be placed
in outline before the reader.
(2.) Constitution of Feudal Rights.
1146. He who makes a grant is called the superior: he who
receives it the vassal. The subject of the grant is the feu, a
word which, however, is sometimes used in a more special sense.
1147. According to the theory of the feudal system, the
sovereign was the actual possessor, in the first instance, of the
whole land of the nation: by him it was granted to his vassals
on conditions of military service: and by them to sub-vassals on
the like conditions. The system of subinfeudation in Scotland
was permitted to extend ad infinitum notwithstanding an alleged
attempt to abolish it so early as the reign of Robert I.,
(Menzies's Lectures on Conveyancing, p. 583). In England
subinfeudation was prohibited by statute so early as the year
1290; the vassal being permitted to dispose of his rights only by
putting the purchaser in his place, and enabling him to hold
directly of the superior.
1148. In Scotland heritage has always been transmissible by
either of these methods. Where the system of subinfeudation is
adopted, a new right of property is brought into existence at
each stage of the transmission; and this is called constituting a
fee. The formal instrument by which a fee is constituted, and
a new feu created, is called a feu-charter. That by which it is
transmitted is called a disposition.
1149. When a fee is constituted a certain interest in it is
always retained by the superior. This interest is called the
superiority, or dominium directum; as opposed to the more substantial
interest transmitted to the vassal, which is called the
property, or dominium utile.
1150. In the earlier stages of feudality the vassal was chosen
by the overlord on the ground of his aptitude for military service,
and the feu was granted him merely for life. After the fee
became hereditary, the superior was in the habit of resuming
possession during the minority of the vassal, on the ground
that he was then unable to discharge his military duties. The
value of this right on the superior's part was commuted for an
annual payment, after the relation between him and the vassal
had become pecuniary. This arrangement was called taxed ward.
1151. These military tenures were abolished in Scotland in
1747, as dangerous to public tranquillity; those held of the
Crown being converted into blench holdings, and those held of
subjects into feu holdings.
1152. A blench holding involved the payment of a merely
nominal sum, e. g., a penny Scotch, a peppercorn, or the like,
i.e. it was as nearly a free estate as the theory of the feudal
system permitted.
1153. A holding in feu farm, on the other hand, involved the
payment of a valuable consideration, the extent of which was
matter of arrangement between the parties. These latter are
the ordinary feu duties of the present day.
1154. In addition to the dues thus paid for the recognition of
his right, certain occasional payments, called casualties, were
made by the vassal to the superior. The only casualty now in
use is, that which is payable to the superior on the transmission
of the fee, either to the heir of the vassal or the purchaser of the
estate, and is called relief or composition. On entering with the
superior a year's rent is exigible from the vassal, unless otherwise
provided in the grant; but it is often restricted in the grant
to a duplication of the fen-duty, and is then said to be taxed.
Where it is not taxed, only the net rent is exigible, after
deducting all public burdens, and one-fifth for teind. The
superior is entitled always to have an entered vassal; and should
the vassal refuse to enter, the property may be evicted. On the
other hand, the vassal may compel the superior to enter him, and
on refusal, may pass his immediate superior by, and enter with a
higher superior.
(3.) Of the Transmission of Heritable Rights.
1155. From the enumeration in the foot-note1 of the recent
1 1. To facilitate the transmission and extinction of heritable securities for
debt in Scotland, 8 and 9 Vict., c. 31 (30th June 1845).
2. To simplify the form, and diminish the expense of obtaining infeftment
in heritable property in Scotland, 8 and 9 Vict., c. 35 (21st July 1845).
enactments which have had the simplification of our land rights,
and of the modes of their transmission in view, it will be apparent
that any attempt at a history of the various changes to which
the law of heritable property has been subjected, even during the
last ten years, would greatly exceed the limits of a work like the
present. We shall content ourselves by attempting to gather,
chiefly from the last, and, as such, the most important of these
statutes, a brief account of the manner in which a title to land
may, for the present, be acquired and transmitted.
1156. Instruments of Conveyance. — Charters, dispositions, bonds,
and other deeds, by which heritable rights and securities are
constituted and transmitted, whether from the crown, as their
original source, to a subject, or from one subject to another,
having been very extensively modified, and very greatly shortened,
by the previous enactments, are, with exception of a few alterations,
which the provisions of the Act had rendered indispensable,
left unchanged by the Lands' Titles Act.
1157. The leading object of that enactment is to remove certain
unnecessary steps between the granting of such deeds by
3. To amend the law and practice of Scotland as to the service of heirs, 10 and
11 Vict., c. 47 (2th June 1847).1
4. To facilitate the transference of lands and other heritages not held burgage,
10 and 11 Vict. c. 48 (25th June 1847).
5. To facilitate the transference of lands and other heritages held in burgage
tenure, 10 and 11 Vict., c. 49 (25th June 1847).
6. To facilitate constitution and transmission of heritable securities for debt,'
and to render the same more effectual for the recovery of debts, 10 and 11 Vict.,
c. 50 (25th June 1847).
7. To amend the practice with regard to Crown charters and precepts from
chancery, 10 and 11 Vict. c. 51 (25th June 1847).
8. To extend the benefits of two Acts (Nos. 1 and 6) relating to the constitution,
transmission, and extinction of heritable securities in Scotland, 17 and 18
Vict., c. 62 (31st July 1854).
9. To simplify the form and diminish the expense of completing titles to
lands in Scotland, 24 and 22 Vict., c. 76 (2d August 1858).
1 Ante, p. 155.
the seller, and the completion of the buyer's title, by the recognition
of the transference on the public records.
1158. The old symbolical ceremony of infeftment, by which the
superior, or his representative, gave to the vassal, or his attorney,
what was regarded as equivalent to physical possession of the
land by the delivery of earth and stone; or of burgage property
by other appropriate emblems, had already been abolished
by 8 and 9 Vict., c. 35. But though the visit to the lands was
dispensed with, the notarial instrument, in which the ceremony of
infeftment, and the subject with reference to which it took place
were described, still continued to be indispensable; the deed of
conveyance, in place of completing the title to the lands, acting
only as a warrant for its completion by infeftment, and for the
execution and registration of the instrument in question. It was
not the conveyance, but the instrument of sasine, which entered
the record, and thus in reality constituted the most important
part of the title to the lands.
1159. The principle of recording the deed by which the right
was conferred or transmitted, in place of an instrument, in which
the fact of its having been so conferred or transmitted, was
narrated, had already been introduced in regard to heritable
securities by 8 and 9 Vict., c. 31. By sec. 1 of that Act, it is
provided, that "where an heritable security has been constituted
by infeftment, the right of the creditor therein may be transferred,
either in whole or in part, by an assignation or other
deed of conveyance; and, on such assignation or conveyance
being recorded in the general register of sasines, or in the particular
register or burgh register of sasines applicable to the
lands contained in the security, the said heritable security shall
be transferred to the assignee as effectually as if such heritable
security had been disponed and assigned, and the disposition and
assignation or conveyance had been followed by sasine duly
recorded according to the present law and practice."
1160. This principle the recent statute has extended to all
conveyances of land. As its provisions are simply permissive,
the old forms being still allowed to be used, it cannot be said to
abolish instruments of sasine, but it dispenses with the necessity
for them in every case; and former experience of similar permissions
has proved them to be equivalent to abolition of the old
forms.
1161. It is further provided by the same section that the
conveyance, where presented for registration, shall have a warrant
written on it, specifying the person on whose behalf it is
presented, and signed by him or by his agent. By this arrangement
the conveyance, which may be in favour of several individuals,
operates, when registered as an infeftment, only in favour
of the party thus indicated.
1162. Also following the principle already adopted in the
Heritable Securities Act, sec. 2 provides for the contingency of
a conveyance containing matter which it is unnecessary and undesirable
to record. In such cases an instrument is to be prepared
by a notary, setting forth generally the nature of the deed,
and containing at length those portions by which the lands are
conveyed, and real burdens, conditions, or limitations imposed. A
similar course is to be adopted where the deed conveys separate
lands or separate interests to the same or different persons.
1163. But it is only in cases of necessity that a notarial instrument,
even of the kind contemplated in sec. 2, is to be
resorted to, the object of the Act being, in all cases, to facilitate
the recording of the conveyance itself. It is, therefore, provided
(sec. 3) that it shall be competent to insert, immediately before
the testing clause of any conveyance, a clause of direction, specifying
the part or parts of the conveyance which the granter
desires to be recorded; and, when such clause is inserted, the
keeper of the register shall be guided by it in recording the
deed.
1164. The 4th section of the Act dispenses with another writ,
called an instrument of resignation ad remanentiam, in the same
manner in which the instrument of sasine is dispensed with by
sec. I. Resignation ad remanentiam is the ceremony by which a
feudal right is permanently restored by the vassal to his superior;
its object being to consolidate both the property and superiority
in the hands of the latter. The instrument of resignation was
the deed in which a notary set forth the act of resignation, which
took place in virtue of a warrant from the resigner to his procurator,
called a procuratory of resignation. This procuratory
has been rendered unnecessary by 10 and 11 Vict., c. 48, sec. 3,
whereby a clause for resigning to be inserted in the conveyance
was substituted. The recent statute declares, that in future it
shall be sufficient for the superior, in whose favour the resignation
under the procuratory or conveyance is made, to record the
procuratory or conveyance itself, with a warrant of registration
thereon; or, should the circumstances of the case require it, a
notarial instrument may be prepared and recorded as in an
ordinary conveyance.
1165. As a consequence of dispensing with the instrument of
sasine, it is declared, (sec. 5) that it shall be no longer necessary
to insert in conveyances a clause of obligation to infeft, or a precept
of sasine or warrant for infeftment. The clause known as
the tenendas, in which the manner of holding, or annual duty, or
consideration in virtue of which the lands are held of the superior,
may still be inserted, no change having been made by the Act
either on the rights of superiors or the obligations of vassals;
but if not so inserted, the conveyance shall be held to imply that
the lands are to be holden in the same manner in which the
granter of the conveyance held, or might have held them.
1166. In the usual form of a disposition, a double manner of
holding is inserted à me vel de me, and under this clause the disponee
holds the subjects disponed of the seller, till he enters with
the seller's superior. Since it was not the object of the Act to
abolish the feudal relation of superior and vassal, it was necessary
that arrangements should be made for facilitating its formation
and transmission. With the view of rendering the investiture
of the vassal simpler and less expensive, it is consequently
provided, that in place of the former charters of confirmation by
which the superior recognised in the person of a disponee the
rights which had been conveyed to him by the vassal, and in
which it was requisite that the description and destination of the
lands as contained in the conveyance should be repeated, it shall
in future be competent for the disponee to call, in the case of
crown lands (sec. 6), on the presenter of signatures, and in the
case of other lands, on the subject superior (sec. 7), to confirm
him by means of a writ of confirmation to be written on the deed
or instrument of conveyance itself in a form prescribed by the
Act. The description and destination of the lands being contained
in the body of the conveyance, do not require to be
repeated in the writ of confirmation.
1167. Where the investiture is to be by resignation, similar
provisions are made for the substitution of a short writ for a
charter, whether the lands are held of the crown or of a subject
superior. (Secs. 8 and 9.)
1168. Where there is only a general conveyance of lands, the
general disponee may now complete a title by registering a notarial
instrument in the form prescribed in section 12.
1169. The preceding clauses being simply permissive, it is
provided (sec. 10) that it shall not be requisite for those who
prefer to retain the charter to set forth the tenendas and reddendo,
or feudal conditions on which the lands are held, but shall be
sufficient to refer to any other charter or writ recorded in a
public register in which they are contained.
1170. The transmission of the feudal right to purchasers being
thus provided for, the case of heirs is next dealt with (sec. 11);
and, as it is no longer necessary that the superior should direct
the heir to be infeft, what was formerly a precept or command
has been changed into a simple writ or acknowledgment of clare
constat. In this writ the superior merely declares that "it
clearly appears" that the ancestor died last vest in the lands, and
that the claimant is his heir.
1171. Provision is made in the relative sections for the appropriate
registration of all the deeds thus simplified; and it is declared
that the granting each investiture shall act as a confirmation,
by the superior, of the whole deeds and instruments necessary
to be confirmed in order to its completion.
1172. Where a party has acquired right to a conveyance
before it has been recorded, he is permitted (sec. 13) to assign
it, and the assignation may be recorded along with the conveyance,
or a notarial instrument may be recorded in cases in which
that course may be requisite or preferred. (Sec. 14.) By this
means the assignee is placed in the same position as if the
original conveyance had been granted and recorded in his
favour.
1173. The Act next makes various provisions for shortening
conveyances by permitting a reference to be made to former
deeds, in place of the repetitions of their provisions which were
formerly required in every new transfer. (Secs. 15, 16, 17, and
18.) These and the subsequent provisions, in which simpler
modes of completing titles are introduced in the case of judicial
factors, trustees in bankruptcy, and liquidators of joint-stock
companies, are of too technical a character to admit of their being
explained to the general reader.
1174. By section 23 an extremely simple method of extinguishing
mid-superiorities has been substituted for the cumbrous
and expensive proceedings which were formerly requisite for that
purpose. The superior is now empowered to grant a simple
deed of relinquishment, and this one deed, having written on it
first the acceptance of the vassal, and then the investiture of the
over-superior, shall, when recorded in the appropriate register of
sasines, be held to extinguish the mid-superiority.
1175. The statute farther authorises the combination of actions
of constitution and adjudication against an apparent heir, whether
he renounces the succession or not, and declares that the citation,
in the combined action, shall have the effect both of a general
and a special or general special charge, as circumstances may
require. The decree of adjudication thus obtained against the
apparent heir, is farther declared to be equivalent to a conveyance
from the ancestor. (Sec. 27.) By this section also, as formerly
mentioned, the privilege of the heir, known as the annus
deliberandi, is restricted from a year to six months.
1176. Such are the leading features of an enactment which
has done a good deal towards simplifying the transference of
heritage, and which, at no distant date, will probably make way
for still simpler arrangements.
IV. — Sale by Auction.
1177. An auction, or roup, is an arrangement for offering
property to the competition of purchasers.
1178. The Articles of Roup, being the conditions under which
the seller exposes his property to sale, form an integral part of
the contract between the seller and purchaser. This contract is
completed by the offer or bidding, on the part of the purchaser,
and the acceptance by the seller or his representative, which is
formally declared by the fall of the auctioneer or salesman's
hammer, the running of a sand-glass, or any other means which
may have been specified in the articles of roup.
1179. The articles of roup usually narrate the nature of the
right to be conferred, regulate the manner of bidding, prescribe
the order in which offerers are to be preferred, and name a person
who shall be empowered to determine disputes between bidders
and declare the purchaser, called the judge of the roup.
1180. Before the sale commences these articles are read over,
or otherwise published, to the intending purchasers. They must
be executed on stamped paper.
1181. In the sale of heritable subjects, it is usual for the articles
of roup to contain a clause of registration, by which the parties
consent to a decree going out in terms of the conditions which
the article contains, and under which they may be enforced by
legal diligence.
1182. A minute of the offers is made generally on the back of
the articles, and signed by each offerer.
1183. The implied conditions, which are binding on the seller
and purchaser in all auctions, in addition to those expressed in
the articles of roup, are — 1st, That the seller shall not attempt
to raise the price by means of fictitious offers, but shall fairly
expose the article to the competition of the purchasers; and 2d,
that the purchasers shall not combine to suppress competition.
1184. An Upset Price, or price below which the subject is not
to be sold, may be fixed by the exposer, or he may reserve to
himself in the articles of roup a power to offer, but unless he does
so in express terms, he cannot legally interfere with the sale
either by offering himself or appointing another to do so for him.
If there be no express provision to the contrary, it is thus an
implied condition, that the sale is "without reserve," or "at the
pleasure of the company."
1185. The conditions embodied in the articles of roup cannot
be controlled by any verbal declaration of the auctioneer.
CHAPTER III.
OF THE RIGHTS AND BURDENS ATTACHING TO HERITABLE PROPERTY.
1. Public Burdens.
1186. In addition to taxation, local and general, which falls
clearly beyond the scope of the present work, there are certain
rights which the public possess over the landed property of the
country, and which constitute burdens on its proprietors or occupiers.
Though properly belonging to the department of public
law, of which we do not profess to treat, these burdens are commonly
viewed in connection with the rights of individuals, and
we shall therefore mention them very briefly.
1187. (1.) Public Roads, or Highways. — The right of highway
is a right of property in such a portion of soil as will afford a
passage over the property of private individuals, which is vested
in the Crown as the representative of the public.
1188. The distinction between a public and a servitude road
will be stated in treating of the latter.1
1189. The earlier statutory arrangements placed the public
roads of Scotland under the management of the Commissioners
of Supply and Justices of the Peace.2 Subsequently local acts
were passed, giving power to trustees to arrange the statute
labour or amount of work to be furnished annually by tenants
and cottars in the country, and by the inhabitants in burghs, for
the repair of highways not turnpike, and to levy tolls and borrow
money on the security which these tolls afforded, for the support
of such as were turnpike. Great abuses arose out of the manner
in which these Acts were obtained and administered, and, as a
1 Infra, p. 212.
2 1617, c. 8 (1669, c. 16; 1670, c. 9; 1686, c. 8; 11 Geo. III., c. 53).
remedy, the General Road Acts1 were passed. Notwithstanding
the attempt thus made to reduce the management of the highways
to an uniform system, the peculiar circumstances of each district
have been found to necessitate so many reservations that local acts
have been passed for almost every county. These acts are to be
read as if the last General Act (1 and 2 Will. IV., c. 43) were
incorporated with them. The leading subjects which this very
important statute embraces, are — the qualifications and powers
of trustees, regulations for driving vehicles, the exaction of tolls,
the erection of toll-bars, the penalties for evasion of tolls, the
cutting of ditches and drains, the encroachments upon, and
obstructions to, highways, the compensation to be given to
proprietors, the construction of foot-paths, pruning of hedges,
etc.
1190. A highway must be at least twenty feet broad, not including
the ditches, and powers are conferred on the trustees to
widen all highways to that extent. They are farther empowered
to widen them where necessary to forty feet, compensation
in this case being given for the ground taken beyond the
twenty feet.
1191. Jurisdiction under the General Road Act is vested in
the Justices of Peace and Quarter Sessions, and the review of
the Court of Session is excluded. An excellent digest of the
Road Act, and of the decisions connected with highways will be
found in Mr Sheriff Barclay's "Law of the Road," and also in
his "Digest of the Law of Scotland for Justices of the Peace."
The latter work contains an enumeration of the statutes on the
subject from David II. downwards. No Act has been passed
since its publication, though a very important one for the abolition
of tolls has long been pending.
1192. Right of Way. — The existence or non-existence of a
right of way on the part of the public is often a question of
1 4 Geo. IV., c. 49; 1 and 2 Will. IV., c. 43.
extreme difficulty, the solution of which depends on a multitude
of circumstances, which render almost every case a new one.
1193. As to jurisdiction, it may be stated, that where what is
called a "possessory judgment" is sought on the ground that use
and possession of the road for a period beyond seven years can
be proved, the Sheriff-court is a competent tribunal; but it is
not competent for the Sheriff to decide whether or not there be
evidence sufficient to cut the proprietor off from his right to
exclude the public on the ground that the prescription of forty
years has not run against him.1 This latter question must be
tried by declarator before the Court of Session.
1194. (2.) Sea-shore. — Closely analogous to the right of highway
is the right which the public possess to the sea-shore. The
seas and sea-shores of Great Britain are said to be inter regalia,
i.e. they belong to the Crown for the public use. The shore
comprehends all between high and low water-mark; but by the
former term is meant only the point which the sea reaches in
ordinary spring tides.
1195. "There is no substantial distinction between a grant of
land as bounded by the sea, and as bounded by the seashore; the
shore is given in both cases, subject to public use.
1196. "After a grant so bounded, nothing remains in the
Crown but the public trust; and no one can, by subsequent
grant or otherwise, be allowed to interpose between the grantee
and the shore."2
1197. Navigable Rivers. — The banks of navigable rivers are
also public, and the same rules apply to them as to the seashore.

1198. The Sea. — The high sea is the common property of
nations; no nation has precedence there; and the jurisdiction of
1 Wilson v. Henderson, March 2, 1855, and McDonald v. Watson, 23d Feb.
1830.
2 Bell's Prin., sec. 643, and cases cited.
each is limited to its own subjects, within its own ships. But the
rights of the sovereign, as guardian of the people, extend by our
law to the seas which wash the coast to the distance, it is said,
of a cannon-shot; and to all bays, creeks, arms of the sea, and
navigable rivers. These rights include — 1st, the right to forbid
the passage of enemies; 2d, the right to levy tolls or duties; 3d,
jurisdiction, including right of search; 4th, the right of flag;
5th, the right of fishing, and taking all wreck and goods found
on or under the sea, except such as are claimed and identified.
1199. By 6 and 7 Vict., c. 79, to carry into effect a convention
between her Majesty and the King of the French concerning
the fisheries in the seas between the British Islands and France,
the limits within which the general right of fishing is exclusively
reserved to the subjects of the two kingdoms respectively, are
fixed at three miles distance from low water-mark. With respect
to bays, the mouths of which do not exceed ten miles in width,
the three mile distance is measured from a straight line drawn
from headland to headland.1
1200. Ports and Harbours. — Free ports are also inter regalia;
and the sole right of erecting public ports and harbours is in the
Crown, unless where limited by Royal or Parliamentary grants to
communities or subjects.
1201. The public are entitled to insist that the harbour shall be
kept up so far as the means afforded by the dues extend; but the
grantee is not bound to improve or repair it out of his own means.
1202. Railways. — These lines of communication, in the eye of
the law, stand in a totally different position from the highways
which, in so many respects, they have superseded. Though
regulated by public and general statutes,2 each railway is the
1 Declaration in Sched., Art. ii.
2 Companies Clauses Consolidation Act, 8 and 9 Vict., c. 17. Lands Clauses
Consolidation Act, 8 and 9 Vict., c. 19. Railways Clauses Consolidation Act, 8
and 9 Vict., c. 33.
property of a joint stock company, and as such a private undertaking.

1203. The powers of central control over railways, which in
18461 were vested in a board of railway commissioners, were in
18512 restored to the Board of Trade.
1204. All property being held under the condition of being
surrendered on a valuation if required for the public service, the
proceedings by which a sale of lands is effected, under the sanction
of Parliament, for railway purposes, though of more frequent
occurrence than others of a similar nature, have nothing peculiar
in principle. Liability to compulsory sale by authority of Parliament
may thus be included amongst the burdens which attach
to all heritable property.
1205. An important statute relating to this subject is the
Act to "facilitate the abandonment of railways, and the dissolution
of railway companies in certain cases."3
120G. As to the Act "for the better regulation of the traffic
on railways,"4 see Carriage.
1207. By 7 and 8 Vict., c. 85, it was enacted that cheap
trains shall be provided for the poorer class of passengers, to run
the whole length of each railway, each way, daily, under certain
regulations, of which the most important are — that they shall be
furnished with seats and protected from the weather, and that
the fare for each third-class passenger shall not exceed one
penny for each mile travelled.
1208. This enactment is explained and modified by the subsequent
statute to "amend the law relating to cheap trains, and
to restrain the exercise of certain powers by canal companies
being also railway companies,"5 passed in 1858.
1209. The provisions of this Act as to cheap trains are, that for
1 9 and 10 Vict., c. 105. 2 14 and 15 Vict., c. 64.
3 13 and 14 Vict., c. 83, 1850. 4 17 and 18 Vict., c. 31, 1854.
5 21 and 22 Vict., c. 75.
fractions under one mile one penny may be charged, and for
fractions exceeding half a mile, where the distance travelled
amounts to one mile or more, one halfpenny may be charged.
1210. No fare heretofore charged to or received from a third
class passenger, shall be deemed to have exceeded the rate prescribed
by 7 and 8 Vict., c. 85, "if the same shall not have exceeded
the rate of one farthing for each entire quarter of a mile
travelled." (Sec. 2.)
Servitudes.
1211. As these are not only imposed on, but exist in favour
of, private parties, they may here be viewed either as rights
or as burdens.
1212. I. Personal Servitudes, which are pecuniary burdens on
real property constituted in favour of a particular individual,
have already been considered under the heads of Terce and
Courtesy.1
1213. II. Predial or Real Servitudes, are burdens imposed
upon one heritable possession in favour of another. The rights
which these burdens imply, pass of necessity to the owners or
occupiers of the property in favour of which they have been
constituted.
1214. The property on which the burden is laid is called the
servient tenement, that in favour of which it is imposed the dominant
tenement.
1215. Real servitudes are further divided into those which
have reference to lands, and those which have reference to house
property in towns.
1216. 1. Rural Servitudes. — Of these the most important are:
1217. (1.) Road or Passage. — The right of passage is of three
degrees :—1, foot-road; 2, horse-road; and 3, cart or carriage-road.

1 Ante, p. 31, 32, 33.
1218. Whilst highways1 are open to all the subjects of the
realm, the most extensive servitude of road does not extend beyond
the dominant proprietor or proprietors. The servient proprietor,
moreover, continues to be proprietor of the solum, or soil
over which the servitude exists; and as a consequence of this proprietory
right, he is entitled to change the direction of the road,
provided the new one be equally convenient for the dominant
proprietor.
1219. There is no obligation on the servient proprietor to
maintain the road.
1220. (2.) Pasturage, by which the proprietor of the dominant
tenement is entitled to pasture a certain number of cattle on the
grass of the servient tenement.
1221. Where the right extends over a common, though it be
indefinite as to the number of cattle to be pastured, it is not in
reality unlimited, but is regulated as to its extent by the number
of cattle which each of the dominant possessions is capable of
foddering during the winter.
1222. The action by which the rights of parties having
servitudes over a common are adjusted, is called an action of
souming and rooming.2
1223. (3.) Feal and Divot, is a right in the proprietor of the
dominant tenement to cut and remove turf for constructing
fences, covering houses, or the like purposes.
1224. (4.) Fuel is a right to cut, winnow, and carry away peats
from the servient moss or peat land, for fuel to the inhabitants of
the dominant tenement.
1225. These servitudes do not convey a right to provide for
anything beyond the ordinary uses of the actual occupants of
the dominant tenement.
122G. 2. Aqueduct. — The owner of the dominant tenement, in
the enjoyment of this right, is bound to maintain the conduits,
1 Ante, p. 207. 2 So spelled by Stair, B. ii., tit. vii., sec. 14.
pipes, etc., in such a condition as to prevent their injuring
the servient lands; the servient proprietor being bound, on the
other hand, to allow reasonable access for repairs.
1227. The dominant proprietor is not bound to repair injuries
occasioned by floods.
1228. Watering of Cattle. — The aquce haustus of the Roman law
is sufficiently explained by its name. It does not deprive the
servient proprietor of the right of watering his own cattle at the
stream, well, or pond to which it applies.
1229. 3. Urban Servitudes.
1230. (1.) The servitude of support (oneris .ferendi, et tigni immittendi)
is a right to rest a wall, or a beam, on the neighbouring
building.
1231. (2.) Stillicide and Fluminis. — The first is the servitude
of receiving the eavesdrop, the latter the collected water (flumen),
from a neighbour's house.
1232. (3.) Light, or Prospect, is a restraint on the absolute
use of his property by the servient proprietor, to the effect of
preventing him from raising an obstruction to the light or view
of the dominant proprietor.
1233. "A servitude of this kind," says Mr Bell,1 "may
indirectly arise from a stipulated tolerance of windows looking
into the servient tenement;" and, as the converse of this, a servitude
of privacy may be created, for the purpose of protecting a
house or garden from being looked in upon.
1234. Altius non tollendi, the servitude of not building above a
certain height. In this country it is often a servitude not to build
at all; and as such it is spoken of by Mr Bell.2
1235. Thirlage. — By this servitude, the proprietors or tenants
of lands are bound to carry the grain which their lands produce
to be ground at a particular mill, for payment of duties specified
in the conveyance, lease, or other deed by which the servitude is
1 Bell's Prin., sec. 1005. 2 Prin., sec. 1007.
constituted. The principal duty is called multure; and the smaller
duties, called sequels, which fall to the servants of the mill, are
known by the significant names of knaveship, bannock, lock or
gowpen (such a quantity as may be lifted with both hands).
1236. Stipend, the provision for the support of the clergy of
the Church of Scotland, though neither a servitude nor a Crown
right, may be here mentioned as being, in country parishes at
least, a permanent burden on landed property. It consists of
payments in money or grain, or both, the amount of which
varies with the extent of the parish and the state of the free
teinds, or other funds set apart for the purpose. Whitsunday and
Michaelmas are the terms at which stipend is due. If a minister
is admitted before Whitsunday, he is entitled to the whole year's
stipend, because his entry is held to have been prior to the sowing
of the corn; and if his interest has ceased before that term,
he has no claim on the fruits of the year. If he is admitted after
Whitsunday and before Michaelmas, he is entitled to half the
stipend, the other half going to his predecessor. The reason
why the term for the payment of stipends is Michaelmas, and
not Martinmas, is, that they come in the place of tithes, which
were due in harvest. Ministers' stipends prescribe in five
years.1
1237. Vacant Stipends were formerly at the disposal of the
patron for pious uses, but they have been given by statute to the
Ministers' Widows' Fund,2 with the exception of such portions
as had formerly3 been reserved to the representatives of the
deceased.
1238. As to these the following is the rule:—If a clergyman
'die after Whitsunday, his executors have right to the first half
of the year's stipend, and his widow and nearest of kin to the
1 See Prescription, 222.
2 The Acts now in force are, 19 Geo. III., c. 20; 54 Geo. III., clxix.
3 1672, c. 13.
other half as "ann." If he survive Michaelmas he has right to
the whole of the year's stipend, and his nearest of kin draw the
first half of the next year's stipend as ann.
1239. The annual rates payable to the Ministers' Widows'
Fund are declared to be privileged debts, "and preferable to all
other debts of the said ministers, etc., not only upon their benefices
and salaries respectively, but also upon their whole personal
estate."1
1240. The Church. — The expense of building and repairing the
parish church lies on the heritors.
1241. The presbytery may, when necessary, decern for a new
church, after appointing a visitation and report by tradesmen,
and giving notice from the pulpit. Their decision is subject to
review by the Court of Session. The heritors are not bound to
rebuild if the church be repairable, though too small for an
augmented population.
1242. In rebuilding a church, accommodation must be provided
for the parishioners, and the rule is to provide for twothirds
of all examinable persons in the parish.
1243. The Manse. — The minister has also a claim against the
heritors for a manse, whether the parish be wholly landward, or
partly town or burgh and partly landward; but the minister of
a parish in a royal burgh is not entitled to a manse, under the
Act 1663. If a minister entitled to a manse cannot be provided
with one, compensation is given, under 5 Geo. IV., c. 72, sec. 2.
1244. The Glebe. — Every minister of a country parish is entitled
to a glebe of four acres of arable land, or sixteen soums of
pasturage.
1245. If there are no church lands, the glebe is designed out
of temporal lands ; the heritor whose lands are designed having
recourse against the other heritors. The presbytery possess the
power of designing the glebe.
1 19 Geo. III., c 2, sec. 19.
1246. The incumbent cannot alienate, but may feu the glebe,
with sanction of the Court of Teinds.1 Upon the transportation
of the church to a new locality, the Court have authorised a sale
or excambion of the glebe. Excambions of glebes must be sanctioned
by the presbytery.
1247. The minerals of a glebe are worked at sight of the
heritors and presbytery, and the proceeds are placed under their
management for behoof of the incumbent. Trees growing on
the glebe are thought to belong to the minister.
1248. Schoolmaster. — The payment of the salary of the parochial
schoolmaster, and the maintenance of the schoolroom and
schoolhouse, are likewise permanent burdens on the heritors of
the parish.
1249. It was enacted by 169G, c. 26, that where no parochial
school had been before established, the heritors should provide
a schoolhouse, and modify a salary to the schoolmaster, to be
proportioned according to the valued rent of the parish; and
43 Gee. III., c. 54, provided that in all schools for parishes not
entirely within burghs the salaries of the schoolmaster, which
the original Act had fixed at L.100 to 200 merks Scots, should
be from 300 to 400 merks. Every twenty-five years after that
date, the heritors and minister were to modify a new salary
according to the average price of oat meal, of the value of from
one and a half to two chalders. The inadequacy of this provision
has of late been universally admitted, and further legislation
on the subject frequently attempted. The choice of the schoolmaster
is vested in the minister and heritors, and the person
elected must be found qualified by the presbytery as to morals,
religion, and literature.2
1250. Pigeon-Houses. — In consequence of the destruction
caused to the crops of neighbouring proprietors by pigeons, it
was enacted by a Scottish statute, which is still in force (1617, c.
1 Infra, Teind Court. 2 Infra, Presbytery.
19), that no person shall in future be entitled to build a doucat
(dovecot) upon any lands, either within burgh or in the country,
unless he have lands and teinds extending in yearly rent to
ten chalders victual, lying within two miles of it, nor to build
more than one within the said bounds. Where lands have been
purchased with an old dovecot, it is presumed, in the absence of
proof to the contrary, to have existed before 1617, and may
consequently be kept up by a proprietor though not possessed
of the requisite amount of property, though it cannot be rebuilt
by him.1 It has likewise been decided that an heritor is entitled
to build a pigeon-house for every ten chalders of rental which he
possesses.
1251. Previous to the passing of the statute above referred
to, there had been much legislation for the protection of pigeons;
and "the taking of them without the permission of the owner, in
general, constitutes an act of theft."2 The taking of young
pigeons, more particularly, would certainly be so treated.3 A
tenant will not be entitled to shoot his landlord's pigeons because
they are devouring his grain, and the landlord refuses to herd
them.4
1252. Game (see ante, p. 230). — On the subject of the Game
Laws, the reader is referred to Mr Irvine's brief but exhaustive
treatise.
1 Kinloch v. Wilson, Jan. 19, 1731. 2 Irvine, Game Laws, p. 18.
3 Hume, p. 80. 4 Irvine, p. 19.
CHAPTER IV.
PRESCRIPTION.
1253. A distinction is now very commonly made by legal
writers between Prescription and what, after the English fashion,
we are in the habit of calling Limitation;1 the former acting as a
total extinction of a right, debt, or obligation by the lapse of
time, whilst the latter merely renders certain forms of written
acknowledgment incompetent as grounds of action or of summary
diligence, without extinguishing the debt, or preventing
its existence from being established by other proof. But both,
in a general way, may be regarded as modes of extinguishing
obligations by the lapse of time; and, in a practical work like the
present, the most convenient course will be to treat them together.
1254. Prescription is further divided into positive and negative,
because it is said to be a mode of acquiring property as well as
losing it. In the former sense, however, it simply amounts to
a mode of securing property by preventing the title of its holder
from being called in question, after a certain number of years.
No original title can ever be created by prescription; the statute
by which the so-called positive prescription was introduced
(1617, c. 12) expressly declaring that the lands which it secures
from challenge after forty years, shall be lands possessed "by
virtue of heritable infeftments."
1255. (1.) Forty years' Prescription. — What is commonly known
as the long negative prescription was introduced into our law so
early as the reign of James III. (1469, c. 28, and 1474, c. 54).
By the second of these enactments, the object of which is to ex1
Limitation is not properly a Scots law term. It is an English phrase, like
lien; which the works of the late Professor Bell were mainly instrumental in
introducing amongst us.
plain the first, it is ordained that all old obligations made before,
that is, older than, the date of forty years, shall be prescribed,
and of no strength; and, in likewise, in time to come, all obligations
made, or to be made, that are not followed within forty
years, shall prescribe and be of none avail.
1256. These Acts were at first confined to simple obligations,
but were soon extended to mutual contracts of all kinds, including
marriage-contracts, and to all cases of debt created by bond.
The long negative prescription will even extinguish the right to
challenge the validity of a deed relating to heritable property,
provided the challenge be on grounds extrinsic to the terms of
the deed. The right of reducing a deed on the ground that it
was granted on deathbed, will thus be lost, if not exercised within
forty years.
1257. No statute was required to establish a positive prescription
in moveables, for the property of moveables is presumed
from possession alone, without any written title; and the proprietor
neglecting for forty years to claim them, cut off his right of
action for their recovery, and thus effectually secured the possessor.

1258. The long positive prescription was introduced by stat.
1617, c. 12, in order to secure heritage possessed for forty
years. It proceeds on the preamble that great inconveniences
had arisen from the loss of titles and the dangers of forgery,
after the means of improbation are lost by the lapse of time, and
the numerous lawsuits which are thus engendered; and enacts,
that whatever heritages the lieges have possessed by themselves
or others for forty years, continually and together, from the date
of their infeftments without lawful interruption, shall remain in
their peaceable possession, and that they shall not be inquieted
in the right of property by their superiors or others pretending
right to the same by virtue of prior infeftments.
1259. If the possession be proved as far back as memory
can reach, it will be presumed to have existed from the date of
the title on which it is founded.
1260. The long prescriptions, both negative and positive, may
be interrupted. This may take place:—1. Judicially, that is,
by an action raised in Court before the expiry of the forty years;
2. By a notarial instrument; 3. In the case of the negative prescription,
by a new document or acknowledgment of the debt or
liability, or by a partial payment to account, or payment of interest,
where that can be clearly referred to the debt in question.
From the moment of interruption a new course of prescription
commences to run.
1261. Prescriptions can be interrupted only by the act of the
person against whose claim it is running; but it may be suspended
by his inability to act, in consequence of minority, insanity,
or the like. In this case the period of prescription does
not recommence as in the case of interruption, but the time during
which it is suspended is simply reckoned off.
Of the Lesser Prescriptions.
1262. These possess the character which we have described as
belonging to those which have recently been termed limitations.
Their object is, generally, to protect parties against the effects of
their own negligence in preserving vouchers, or their natural
obliviousness of small transactions, by transferring the burthen of
proof to the claimant who has neglected to recover till after a
stated period has elapsed, and by restricting its character.
Whilst the long prescriptions extinguish the claim notwithstanding
any offer of proof that it is still undischarged, the shorter prescriptions
are liable to be elided by the writ or oath of the debtor.
1263. Vicennial Prescription. — By 1617, c. 13, the original
Act, 1449, c. 57, was so modified as to permit the lawful heir to
a heritable estate to bring an action for setting aside an erroneous
retour of service at any time within twenty years of its
date. The statute 10 and 11 Vict., c. 47, sec. 13, has substituted
an extract decree by the Sheriff of Chancery for the former
retour;1 and as nothing special is provided on the subject in
the statute, the extract, like the retour, probably falls under the
vicennial prescription.
1264. Holograph Writings — By 1669, c. 9, it is provided
that holograph missive letters, and holograph bonds, and subscriptions
in account books, without witnesses, if not pursued for
within twenty years, shall prescribe, "except the pursuer offer
to prove by the defender's oath the verity of the said holograph
bonds, and letters, and subscriptions." If the writing is thus
proved to be holograph and the subscription genuine, the obligation
contained in the deed will be effectual unless the debtor
can prove that it has been discharged. It is expressly declared
that this prescription shall not run against minors.
1265. Of Crimes. — If no steps have been taken to bring an
offender to trial, and if no sentence of fugitation has been pronounced
within twenty years after the commission of the crime,
the right to prosecute prescribes.2
1266. Decennial Prescription. — By 1696, c. 9, it is declared that,
on the one hand, no action shall be competent to minors against
their tutors or curators; or, on the other, to them against the
minor, if not prosecuted within ten years after the expiry of the
office. But in the case of factors, tutors, and curators, under the
Pupils Protection Act,3 it is provided (sec. 34), that if they shall
have been discharged by a judgment of the Court, such discharge
shall be final against all parties, though pronounced in absence,
provided the same shall not be opened up as a decree in absence in
the Court of Session, within the time limited for appealing to the
House of Lords, or shall not be appealed from within that time.
1267. Septennial Prescription. 1st. Cautionary Obligations. —
The Act 1695, c. 5, on the preamble that "great hurt and pre1
Ante, p. 155. 2 As to Treason, infra, 226. 3 12 and 13 Vict., c. 12.
judice hath befallen many persons and families, and oft-times
their utter ruin and undoing been caused by men's facility to
engage as cautioners for others,"provides that no man so binding
himself thereafter, for and with another conjunctly and severally,
in any bond or contract for sums of money, shall be bound
for the said sums for longer than seven years after the date of the
bond. It is further provided, that not only those who are bound
expressly as cautioners, but whoever is bound with another as
principal or co-principal, shall have the benefit of the Act, if he
has either a claim of relief in the bond, or a separate bond of
relief, intimated to the creditor at receiving the bond. This intimation
must be understood as a formal and regular intimation
made to the creditor. "This Act," says Mr Erskine, "being
correctory of our former law, hath received a most limited application;"1
and judicial cautioners, cautioners for the faithful
discharge of an office, etc., do not fall under it.
1268. 2d. Interruptions of Prescription. — It is provided by
1669, c. 10, that "all citations which shall be made use of for interruptions,
whether in real or personal rights, be renewed every
seven years; otherwise to prescribe, except the parties be minors."
Citations are here opposed to actions, in which the parties have
appeared in Court, which continue in force for forty years.
1269. Sexennial Prescription. — By 12 Geo. III., c. 72, sec. 37,
rendered perpetual by 23 Geo. III., c. 18, sec. 55, it is enacted
"that no bill of exchange, or inland bill, or promissory note,
executed after 15th May 1772, shall be of force or effectual to
produce any diligence or action in Scotland, unless such diligence
shall be raised and executed, or action commenced thereon,
within the space of six years from and after the terms at
which the sums in the said bills or notes became exigible."
1270. Bank notes are excepted from the provisions of the
statute; and as regards bills and promissory notes, it is provided
1 Erskine, Ivory's Ed., p. 769.
that, after the expiration of the six years, it shall be lawful to
prove the debts which they contain to be resting owing by the
writs or oaths of the debtor.
1271. The minority of the creditors must be deducted from
the six years.
1272. Quinquennial Prescription.—The following prescriptions
were introduced by 1669, c. 9 :—Arrears of rent from agricultural
subjects prescribe in five years from the date of the tenant's
removal from the lands; ministers' stipends and multures
prescribe in five years after they become due.
1273. All consensual contracts to the constitution of which
writing is not necessary, and which may be proved by witnesses,
and all bargains concerning moveables, prescribe within five years;
that is to say, that after the expiry of that time they can be
proved only by the writ or oath of the party. Arrestments likewise
prescribe in five years from their date, unless they be used
on a depending action, in which case the five years run from the
date of the decree in the action.
1274. The Triennial Prescription.—One of the most important
prescriptions in practice is that which has reference to shop
accounts, servants' wages, etc. By 1579, c. 83, it is ordained
that "all actions of debt for honse-mailles (i.e. rents where the
lease is verbal), men's ordinaries, servants' fees, merchants' accounts,
and other the like debts that are not founded on written
obligations, be pursued within three years; otherwise the
creditor shall have no action, except he either prove by writ or
oath of his party."
1275. Under "other the like debts," have been held to fall
debts due to artificers for their work or wages, and accounts to
writers, agents, surgeons, and the like.
1276. The prescription on au account current does not begin
to run till the date of the last article in the account. In house
rents, again, each year's rent runs a separate prescription. Not
only the constitution, but the subsistence of the debt must be
proved, either by the defender's oath, or by a writing under his
hand. The fact of a partial payment having been made will not
give rise to a presumption that the balance is outstanding, unless
it has been made expressly as a payment to account.1 "It has
been sometimes argued that the words of the statute admitting
and requiring proof by the writ or oath of the party, implied the
immediate debtor to be still in life. The expression of the
statute is 'his party,' which cannot be construed to be simply
the party contracting. It would be very unjust so to hold it,
for it would exclude the creditor from the benefit of the writ or
oath of the debtor's representative, who became by his representation
debtor in the debt, and party to the action. 'His
party' plainly includes both the immediate debtor and the
representative, where the action is brought against the representative,
and thus the just construction is that which the statute
in practice has received."2
1277. Numerous cases of the triennial prescription of shop
accounts occur every day in the Small Debt Courts; and it is for
the judge to say whether the statement made by the defender,
which is seldom directly either negative or affirmative, does or
does not amount to an admission of resting owing. If his statement
be that he remembers nothing of the special debt in question,
but his habit is to settle all such debts at the time, or at
the end of the month or year, and he has no doubt this one was
settled with the others, it will not amount to an admission of
resting owing, and consequently will not support the claim. The
meaning of the rule is, that after the expiry of the three years
the tradesman shall not only raise a presumption, but shall positively
prove the subsistence of the debt, either out of the mouth
or by the handwriting of the defender.
1 Dickson on Evidence, p. 288.
2 Lord Rutherfurd, in Cullen v. Smeal, July 12, 1853.
1278. (2.) A previous statute of the same year, 1579, c. 81, had
applied the same prescription to actions of spoilzie and ejectment;
and by c. 82, it is extended to actions of removing, which
are ordained to be pursued within three years after the warning,
otherwise a new warning must be given.
1279. (3.) By 1707, c. 6, actions for wrongous imprisonment
prescribe after three years, computed from the last day of imprisonment.

1280. (4.) By 7 Will. III., c. 3, sec. 5, high treason prescribes
unless a true bill be found by a grand jury within three years.
This statute applies to the three kingdoms.
CHAPTER V.
OF THE CONTRACT OF LETTING AND HIRING.
1281. Location, or letting and hiring, is a contract between
the proprietor of a subject, or lessor, — and the hirer, tenant, or
lessee; whereby the former conveys to the latter a right to the
temporary possession of the subject, and its fruits and profits,
for a certain rent or periodical payment in money, grain, or
services.
1282. The principles applicable to the contract of sale are, in
general, applicable also to the contract of letting, which is in
reality a sale of the temporary use of a certain subject.
1283. When the subject is land, more especially if it be let for
a considerable time, the contract is called a lease or tack; when
it is a house or shop, for the ordinary period of one year, it is
commonly called an agreement; and when services, an engagement.
The latter branch of the subject has already been treated of under
the head of Master and Servant.1
1 Ante, p. 82.
Of the Agricultural Lease.
1284. "The writ requisite to constitute a tack," says Lord
Stair, "requireth not many solemnities; but if the thing set,
the parties, the rent, and the time be clear, the tack will be
valid."1 Such are still the essentials of all leases.
1285. Verbal Lease.—A lease of land cannot be proved by
ordinary parole evidence if for more than one year, and a verbal
lease entered on for a longer period will not be effectual even for
that period. But verbal leases for terms of years have been sustained
to the extent of rei interventus following on them. A
verbal lease, in the absence of rei interventus, may be proved by the
oath of the granter.
1286. Written Lease. — A formal lease must be written on
stamped paper, and regularly authenticated as a probative deed.
1287. But where one or even both of these requirements are
awanting, it does not follow that the lease may not be rendered
effectual; for the stamp may be adhibited at any time on payment
of certain penalties, and the want of authentication may be
supplied by rei interventus, or homologation.2
1288. A lease may be in the form of a mere offer, if followed
by evidence of acceptance; or it may consist of general regulations
for the letting and management of an estate, proved to have
been accepted by the parties; or it may be simply a written obligation
to grant a lease.
1289. By a very enlightened enactment, so early as the reign
of James I., leases in Scotland were rendered effectual, not only
against the granter and his heirs, but against purchasers or other
singular successors. "It is ordained," 1449, c. 18, "for the
safetie and favour of the puir people that labouris the ground,
that they and all utheris that hes taken, or sail take, landes in
time to come fra Lordes, and hes termes and yeires thereof; that
1 Book ii., tit. ix., sec. 5. 2 Ante, p. 178
suppose the Lordes sell or annaly (alienate) that land or landes,
the takers (tack-holders) sail remaine with their tackes, unto the
isschew of their termer, quhais handes that ever thay landes cum
to, for sik like mail as they took them for." This statute, which
we have given in full, is interesting when viewed in connection
with contemporary legislation on the same subject in other
countries, and the high relative position in agriculture which
Scotland has now attained.
1290. In order to bring a lease within the provisions of the
statute, it must have a definite rent and a definite term.
1291. A lease to endure "whilst grass groweth up and water
runneth down" will be effectual against the granter and his heirs,
but not against singular successors. But such a lease will be
effectual against a purchaser also, if he has either been made
aware of its nature, and accepted it as part of the bargain, or if
he homologates it by his conduct after purchasing the estate; or
if it be registered under the provisions of the recent statute,
20 and 21 Vict., c. 26, such registration being prior to the completion
of the purchaser's title.
1292. The ancient statute referred to will cover leases for
a period greatly beyond that for which, according to the custom
of the country, they are commonly granted, though the period
should be definite. A lease for 400 years is invalid; but an
agricultural lease, if granted expressly for purposes of improvement,
will be good though it exceed very considerably the customary
period of nineteen years. On the same principle, building
leases, and, above all, mining leases, will be sustained for periods
of any reasonable duration, so long as no attempt is made to
create estates in perpetuity by means of lease. This restriction
the recent statute, to be presently referred to, has removed,
perhaps inadvertently. Liferent leases are effectual.
1293. Though the terms of the statute 1449 limit it to lands, it
has been held to apply, not only to minerals, but to mills, fishings,
and the like, on the ground that these are annexed to land—.
fundo annexa. The rule by which objects have been included
under, and excluded from, the statute has hitherto been an extremely
arbitrary one. For example, a lease of salmon-fishing
is protected, whilst a lease of shooting is not.
1294. The recent Act, 20 and 21 Vict., c. 26 (10th August
1857), "to provide for the registration of long leases and assignation
thereof," has introduced what may very readily be converted
into a new title to lands in perpetuity. It enacts that it
shall be lawful to record in the Register of Sasines, or, if the
lands are held burgage, in the Burgh Register, probative leases,
whether executed before or after the passing of the Act, for a
period of thirty-one years, or for any greater number of years that
shall be stipulated (sec. 1). Leases containing an obligation to
renew from time to time, at fixed periods, or on the termination
of a life or lives, or otherwise, are declared to be leases under the
Act, provided they shall be renewable so as to last for thirty-one
years or upwards. Such leases, so recorded, shall be effectual
against singular successors in the lands whose infeftment is posterior
to the date of registration. The Act is merely permissive,
and it is provided that all leases which would, under the existing
law, have been valid and effectual against singular successors,
shall still be valid, though not recorded (sec. 2). Recorded
leases may be assigned, and the recording of such assignation
shall vest the assignee with the right of the granter; but such
assignation shall be without prejudice to the right of hypothec
or other rights of the landlord (sec. 3). Provisions are also
made for recording assignations in security, for their translation
from one party to another, for the case in which the party
presenting for registration is not the original lessee or assignee,
etc (secs. 4, 5, and 6). Section 16 declares that registration
shall, in all cases, be equivalent to possession, to the effect of
establishing a preference in favour of the grantee.
entitled to damages against the landlord, on the ground of the
latter having increased the game on the farm beyond a fair
average stock.1 . Whether the tenant can obtain an interdict
against the landlord increasing the game beyond the average
quantity when he took the farm, is still a question.
1313. The tenant is not entitled to scare the game away by
discharging fire-arms loaded with blank cartridge, or by hunting
them with muzzled dogs.
1314. Rabbits are not game; and a tenant is entitled, without
consent of his landlord, to kill them for the protection of his
crops.
1315. On the same principle he will be entitled to kill wood
pigeons, probably wild ducks, and all other animals not game;
and certainly vermin, foxes included.
1316. He is not entitled to kill tame pigeons belonging to his
landlord, or to any one entitled to keep them in the neighbourhood;
but he may scare them away.2
1317. Right of passing over the Farm.—The landlord is entitled
at all times to walk or ride over a farm let for agricultural
purposes, provided the tenant's crops are not thereby injured.
But the proprietor of a house, with a garden and shrubbery attached,
has not, during the occupancy of the tenant, a right of
access to the shrubbery in order to prune the plants, dress the
ground, and repair the fences.3
1318. Destination of the Lease.—It is commonly settled by the
convention of the parties to whom the lease shall go, failing the
original tenant. If there be no stipulation on the point, and the
lease is given to the tenant simply by name, it will go to his
heirs in heritage. If given to two persons, as joint tenants, the
interest of one of them dying before the expiry of the lease, will
go to his heirs and not to the other tenant. Where the lease
1 Wemyss v. Wilson, December 2, 1847. 2 Ante, p. 217.
3 Baxter v. Paterson, May 26, 1843.
is to two and the longest liver, and their heirs, on the death of
one, his heir has no right during the lifetime of the other.
1319. Transmission of the Lease.—A power of assigning or subletting
is not implied in an agricultural lease of the ordinary
duration of nineteen years; and can consequently be exercised
only where it is expressly given.
1320. Where the lease exceeds nineteen years, or where it is
granted for a lifetime, the converse is the rule, — the power of subletting
and assigning being implied unless expressly excluded.
1321. Where a sub-lease is given, the original tenant remains
bound.
1322. Inevitable Damage. — Where, from the effects of inundation,
from being overblown with sand, from the devastation of a foreign
enemy, or other inevitable accident, the land does not yield a crop
sufficient to pay for seed and labour, no rent is payable to the
landlord. The landlord; however, is not bound to indemnify the
tenant for the seed and labour which he may have expended.
Unless the accident can be shown to have arisen from the fault
of the one or the other, the landlord loses his rent, and the
tenant his seed and labour.
Conditions of the Lease.
1323. Warrandice on the landlord's part is implied in every
lease, to the effect that the tenant shall have undisturbed possession,
and shall be protected against all encroachments.
1324. On the tenant's part, there is an implied obligation to
stock the farm adequately, to labour it according to good husbandry,
to pay his rent regularly, to keep and leave the houses
and enclosures in repair, and to remove at the expiration of the
lease.
1325. Removing Fixtures.—Articles so attached to land,
either by being built upon it or fixed in to it, as not to admit of
being removed without deteriorating the object itself, and destroying
the completeness of the premises from which it is detached,
must be left by the tenant without compensation on the
expiry of the lease. In the eye of the law, such objects become
heritable by accession, according to the maxim inædificatum solo
cedit solo.
1326. The difficulty is always to determine to what objects
this character belongs; and it is consequently of importance to
note the points that have been established. These in Scotland
have been fewer than might be expected, in consequence of the care
with which they are usually provided for by positive agreement.
1327. The general rule is, that tenants cannot remove buildings
erected for their own use; but the tenant is not bound to
put such houses in repair: it is sufficient if he leave them in the
condition in which he was using them for his own purposes when
he quitted the farm.
1328. Where a tenant has erected a thrashing mill he will be
entitled to remove the machinery, but not the building. If he
has received a sum of money for the purpose of erecting such a
mill, however, the machinery will be held to be included.
1329. Trevisses, racks, and mangers, put up in a cottage
temporarily used as a stable, may be removed by the tenant
without paying damages to the landlord. But the Court thought
"if the trevisses had been permanent fixtures, the case might
have been different."
1330. The subject has been much more frequently discussed in
England; and as the laws of the two countries do not differ essentially
on this point, it may be desirable to mention a few of
the leading points which have been ruled.
1331. A beast-house, carpenter's shop, fuel-house, cart-house,
pump-house, and fold-yard wall built of brick and mortar, tiled,
and let into the ground, erected at the tenant's own expense, could
not be removed even during the term of the lease, and though
the premises were thereby left in the state in which he entered
them.1 A tenant put a barn upon pattens and blocks of timber,
lying on the ground; and on proof that it was customary to do
so in the particular part of the country in order to carry them
away, a verdict was given for the lessee. It is said that the
same result would now follow without any proof of local custom;
the tendency of the later decisions having been to relax the
former law of fixtures in favour of the tenant. A windmill of
wood had a brick foundation; but the wood was not let into the
brick, but pressed on it with its weight merely:—it was found
that the mill might be removed; and a similar decision was
arrived at with reference to a barn similarly constructed.
1332. There are dicta in England to the effect that gardeners
may remove hot-houses and other erections for horticultural purposes,
and it is decided that nurserymen may remove trees and
plants. But if a private person, or one who occupies land as a
farmer, raises young trees for the purpose of planting his orchard,
he is not entitled to sell or remove them at the end of his term.
So a tenant, not a gardener, cannot remove a border of box
planted by himself, unless by special agreement with the landlord.
1333. Fences erected by the tenant cannot be removed, but the
tenant is not bound to leave them in repair.2
1334. Mode of Cropping. — It is not unusual to prescribe a
mode of cropping more specific than that which is implied in the
condition, that it shall be conform to the rules of good husbandry.
The most approved course is to prohibit an injurious rotation,
or to prescribe one simply for the termination of the lease, leaving
the choice during the rest of it to the judgment of the
tenant.
1335. Removing. — After the stipulated period has expired, the
tenant is entitled to remain in possession, on the ground of tacit
1 Elwes v. Man, 3 East. B. 38.
2 Hunter, vol. ii., p. 215 ; and Bell's Princ., sec. 1254.
relocation, till legally removed by the landlord. In order to
warrant judicial removing, the tenant must be formally warned by
the landlord to remove; and the only effect of an express stipulation
to remove in the lease seems to be to obviate the necessity for
warning. The subject of removing was regulated by the statute
1555, c. 39, the complicated machinery of which was simplified,
first by an Act of Sederunt, 1756, and latterly by the Sheriff
Court Act, 16 and 17 Vict., c. 80, sec. 29.
1336. By the Act of Sederunt it was requisite that the action
of removing should be called in the Sheriff Court forty days
before the Whitsunday at which the lease expired; or, if it
expired at a different term, forty days before the Whitsunday
previous to that term. The action thus called was equivalent to
warning under the statute; and the Sheriff having given decree in
it, followed by a decree of ejection, the physical removal of the
tenant might be effected vi et armis. "But it was found inconvenient
that such notice should be brought forty days before
Whitsunday, when perhaps the term of removal was Martinmas;
and in order to remedy that inconvenience, the Act of
Parliament was passed which placed the matter on a more
reasonable footing, which gave the party notice by summons of
removing forty days before the term at which he was actually to
remove. That is now the law."1.
1337. By subsequent clauses of the Sheriff-Court Act, it is
provided, — lst, That a lease containing an obligation to remove
shall be equivalent to a decree of removing; and such lease, or
an extract thereof, along with a written authority signed by
the landlord, or his factor or agent, shall be a sufficient authority
to a sheriff officer or messenger-at-arms to eject, provided forty
days' notice has been previously given; and, 2d, that a letter of
removal granted by the tenant, either holograph or attested by
one witness, shall be equivalent to a decree of removing, and
1 Lord President, in Gran er r. Geils, July 16, 1857.
shall likewise be a warrant to an officer to eject, provided forty
days' notice have been given.
1338. Landlord's Hypothec. — This is a security which the
landlord possesses, ex lege, over the crop of each year for the
rent of that year, and over the cattle and stocking of the farm
for the current year's rent.
1339. (1.) Crop. — Each crop, so long as it exists and belongs
to the tenant, is hypothecated to the landlord for the rent of
the year of which it is the crop; and this claim continues though
the landlord should not exercise his right for years. "Hypothee,"
says Lord Ivory,1 "is not competent for the current rent
over the produce of another year;" and he quotes from Mr Bell"The
produce of the farm is hypothecated for the rent of the
year whereof it is the crop, and for none else; the right remaining
to the landlord as long as the crop is extant."2 This right of the
landlord takes precedence of all claims on the part of the creditors
of the tenant, and the landlord is even entitled to vindicate the
corn grown on the farm from a purchaser, unless sold in bulk in
public market.
1340. Cattle and Stocking. — There is no such right of vindication
against the purchasers of stock, which differs also from
the crop in this respect, that it is hypothecated only for the rent
of the current year. Three months are allowed to the landlord
for rendering his right effectual, after the last conventional term
of payment. Where the cattle have been carried off by a poinding
creditor, the landlord must thus bring his action against him
within three months.
1341. A tenant is not entitled to retain his rents, pending the
lease, for illiquid claims of damages against his landlord for
alleged violations of the stipulations of the lease.3
1 Notes on Erskine, p. 387. 2 2 Bell's Com., p. 37, Ed. 1826.
3 M'Rae v. M'Pherson, Dec. 19, 1843.
Renting of Houses, Shops, and other subjects.
1342. The principles which regulate agricultural contracts
of location are applicable, with a few exceptions, to the letting
of urban subjects and manufactories.
1343. If along with the house or shop the use of furniture or
machinery be let, the articles of which it consists are usually
given over by inventory.
1344. Written leases of urban tenements are effectual against
singular successors under the statute 1449, cap 18.1
1345. A house let along with shootings, tolls, or other subjects,
which do not fall under the statute, is nevertheless protected.2
1346. Repairs. — The landlord is bound to deliver the house in
a habitable condition, and to maintain it so during the currency
of the term or lease.
1347. The tenant is not entitled to compensation for money
expended in ornamenting the house, or even in adding to its
conveniency.
1348. The tenant may claim the expense of repairs which he
has made without the landlord's consent, provided they be
necessary.
1349. If the landlord refuses to indemnify the tenant, the latter,
if within a royal burgh, may apply to the Dean of Guild, whose
warrant, proceeding on the estimate of tradesmen, is legal evidence
both of the necessity and expense of the repairs effected.
1350. The landlord is entitled, on cause shown, to enter the
house for the purpose of inspecting its condition and effecting
needful repairs.
1351. The tenant must repair injuries occasioned by his own
fault or negligence; but if they arose from an inevitable or
extraordinary cause, the burden falls on the landlord, even
' Ante, p. 226 ; Bell's Princ. 468. 2 Hunter, i. p. 439.
though by the lease or agreement the tenant is allowed a sum
for preservation.
1352. It is usual to make repairs and meliorations the subject
of express agreement; and where a clause to this effect has been
inserted in the lease, it will be binding on the heir, and, failing
him, on the executors of the landlord, or on his singular successor.

1353. Vermin. — A tenant may throw up the lease if the house
has become uninhabitable from vermin; and if the nuisance is
one which will not be easily cured, he is not bound to wait till
an attempt to do away with it has been made.1
1354. Removing. — Neither the statute nor the Act of Sederunt
above referred to apply2 to removings from burghal tenements,
and formal warnings are consequently unnecessary.
1355. Timeous warning alone is requisite; and any intimation
to quit, however informal, if acknowledged to have been received
by the tenant forty days before the expiry of the lease or term of
occupancy, will be sufficient even in burghs where the ancient
form of chalking the door is observed.
1356. In like manner, it is sufficient if the tenant gives up his
house forty days preceding Whitsunday, provided there be no
lease or stipulation to the contrary, and this even in burghs in
which Whitsunday is not the usual term for letting houses.
1357. Country Houses. — Formal warning is not necessary in
country houses, unless there be land attached to them.
1358. It was held not to be necessary in the case of two small
houses, to which a garden of less than a quarter of an acre was
attached, and which were held on a verbal lease for L.5. But,
unless the land be very insignificant, it will be advisable to give
the regular warning prescribed by 16 and 17 Vict., c. 80.3
1359. Landlord's Hypothec extends, in houses and shops, over
1 Kippen v. Oppenheim, Dec. 13, 1847. 2 Ante, p. 236.
3 lb.
the goods and furniture; and as an agricultural tenant comes under
an implied obligation to stock the farm, so an urban tenant is
bound to furnish the premises which he occupies, and is liable to
be removed if he fails to do so to the extent of affording security
for the rent. "The hypothec, in urban tenements (like that over
farm stocking), continues for three months after the term, within
which period the landlord is entitled even to follow the property
into the possession of another landlord, and there sequestrate the
invecta et illata that had formerly been in the sequestrating parties'
house.'"1
1360. This right extends not only to furniture, but to books,
paintings, plate, jewels, perhaps wines; but not to money, documents
of debt, or wearing apparel.
1361. The effects of travellers in an inn, or lodgers in a lodging-house,
are not liable.
1362. Furniture hired for permanent use is subject to the
hypothec.
1363. In shops and warehouses the hypothec extends over the
goods for sale; but as the tenant, for the purposes of his trade,
must have an unlimited power of sale, the hypothec will not affect
the right acquired by a bona fide purchaser.
1364. In an urban tenement the tenant is entitled to sublet
and assign, unless specially excluded.2
1365. Bankruptcy of the Lessor or Lessee. — Where the lessor
becomes bankrupt, unless his creditors fulfil the contract by putting
the lessee in possession of the subject let, his estate will be
subject to a claim of damages; but the lessee will not be entitled
to decline to take possession if offered to him by the creditors.
1366. The creditors of the lessee, on the other hand, may
nsist on proceeding with the contract, in which case the bankrupt's
estate will be liable for the full hire, and not merely for a
1 Ivory's Erskine, p. 392, note 151. Hunter, ii. p. 359.
2 Bell's Prin., 1274.
dividend. Even if the creditors should wish to abandon the contract,
the lessor will be entitled to rank for the rent or hire for
the whole term agreed on as the amount of his damage, deducting
such sum as he may have actually received for the subject.
Letting and Hiring of Ships.
1367. The use of a ship may be let, either in whole or in part,
either on charter-party or general freight.
1368. By the former, the use of the whole, or a certain portion
of a ship, by ton-weight or barrel-bulk, is let for a certain
period, for a certain purpose; by the latter, the owners simply
come under an engagement to carry goods, in terms of an advertisement
or agreement. Both contracts are included in the
general term Affreightment.
1369. The whole space agreed for by the freighter must be
paid for, whether it is filled by his goods or not.
1370. Such an agreement does not require to be in writing;
but a regular charter-party, being always a written agreement,
must be stamped. It may then contain a clause of registration
for summary diligence.
1371. Both contracts imply as conditions, on the part of the
owners and master:
1372. (1.) That the vessel shall be seaworthy and fitted for
the particular voyage.
1373. (2.) That she shall remain at the port ready for being
loaded for a suitable time.
1374. (3.) That she shall sail at the appointed time, wind and
weather permitting.
1375. (4.) That she shall be properly navigated.
1376. (5.) That the goods shall be taken proper care of, and
delivered as directed.
1377. The freighter, on the other hand, becomes bound,
1378. (1.) To avoid undue delay in loading and unloading.
1379. (2.) To pay the freight at the time specified, or, if no
time be specified, at the end of the voyage.
1380. 13111 of Lading. — This, which is the merchant's receipt
from the shipowner for the goods which he has delivered to him,
has, as formerly explained,1 become a very important negotiable
instrument. In addition to being a receipt for the goods, the
bill of lading is an obligation to deliver them at the port of
destination to the shipper himself, or his order, or his assignees,
or the bearer, or an assignee or purchaser expressly named, or
his assignees.
1381. Bills of lading, like foreign bills of exchange, are generally
drawn in sets of three, "one of which bills being accomplished,
the other two are to stand void." One of these bills is
usually sent by post, one accompanies the cargo, and one remains
with the shipper.
1382. The general rule is, that shipowners, in common with
other carriers, are liable for all accidents to goods under their
charge, not caused "by the act of God and the king's enemies."
But fire is expressly excepted by statute,2 and the bill of lading
usually extends the exception to "all and every other dangers
and accidents of the seas, rivers, and navigations, of what nature
'and kind soever."
1383. There is no obligation for gold, silver, watches, or
jewels stolen, unless they be entered as such in the bill of lading,
or their nature and value specially intimated in writing.
1384. Shipowners are not liable beyond the value of the ship
and freight for embezzlement by their servants, or for negligence
occasioning injury to the cargo.
1 Ante, p. 192, 193. 2 26 Geo. III., c. 86, sec. 2.
Shipmasters, Innkeepers, and Stablers.
1385. The special responsibilities mentioned at the conclusion
of the last section are not peculiar to those who let ships, and
undertake the transport of goods by sea. Though considerably
modified both by statute and decisions, the general rule of
the law of Scotland, adopted from a well-known edict of the
Roman Prætor,1 still is, that all persons who hold themselves
out as public servants, willing to receive travellers and their
goods for hire, whether for purposes of transport or of temporary
custody and entertainment, are liable for the goods and
effects committed to their care; that they are answerable for
the acts of their servants, and even of other guests and passengers;
and that the extent of loss or damage may be proved
by the oath in litem of the claimant.
1386. There is no liability on this ground for money taken
from the pockets of the traveller; but if the money has been
taken from the pockets of clothes which have been stolen, or
from trunks that have been broken into, the innkeeper or carrier
is liable.
1387. There is no liability for articles of unusual value or fragility,
unless an increased charge has been paid expressly as
insurance in consequence of the nature of the subject;2 and the
value of such articles must be proved by ordinary legal evidence.
By the Railway and Canal Traffic Act of 1854, it is provided
that the company shall be liable for neglect or default in the
carriage of goods, animals, etc., notwithstanding any notice or
condition or declaration made by the company for the purpose of
limiting their liability; but that the company shall not be liable
beyond a limited amount, unless the value be declared and extra
1 The edict is in these words : "Nautæ, caupones, stabularii, quod cujusque
salvum fore receperint, nisi restituent, in eos judicium dabo."
2 11 Geo. IV., and 1 Will. IV., c. 68; 17 and 18 Vict., c. 31.
payment made. The proof of value is laid on the person claiming
compensation.
1388. The innkeeper will be relieved from responsibility if the
guest undertakes the exclusive charge of his goods; but it will
not be presumed that he has done so though he may have adopted
some peculiar arrangements for their safety.
1389. An innkeeper has a right to detain the horse or wearing
apparel of a guest who refuses to pay his bill, even though
the ground on which payment is refused is that the charges are
excessive.
1390. A railway company was found liable for luggage
which, though not addressed, was delivered to a porter of the
company by a passenger, who informed him of its destination,
and who himself took a ticket for the same place; and this,
although the passenger did not inquire for his luggage on a
change of carriages, which took place in the course of the journey.
In this case the value of the effects was ascertained by the oath
of the passenger. It was observed on the bench, that the
company might have refused to take the luggage without an
address; but having taken it, they were answerable for its safe
delivery.1
1391. The rule which applies to carriers has been held to include
carters and porters, who offer themselves for hire to carry
goods from one part of a city to another.
1392. Hackney coachmen, however, have been said not to fall
under it, as not being employed in the carriage of goods, nor in
such journeys as to render luggage the necessary accompaniment
of a passenger. From the extent to which such persons
are now employed in the transport of luggage, the justice and
expediency of this view seem extremely doubtful.
1393. Wharfingers and warehousemen are exempted from the
rule, and are liable only under the contract, or in accordance
1 Campbell v. Caledonian Railway, May 27, 1852.
with mercantile usage. In England the principles of the edict
have been commonly referred to the custom of the realm, and
are more or less embodied in the Carriers' Acts.
1394. The question as to whether lodging-house keepers are
included, is still undecided in Scotland. In England the negative
view has been adopted, on the ground that they do not profess
to entertain and lodge all travellers; and the same has been
held with reference to coffee-house keepers not professing to
lodge guests, and owners of public-houses merely for the sale of
beer, etc.1
1395. The Mercantile Law Amendment Act of 1856 (19 and
20 Vict., c. 60), provides that all carriers for hire of goods within
Scotland, shall be liable to make good to the owner of such
goods all losses arising from accidental fire, while such goods
were in the custody or possession of such carriers. Sec. 17.
CHAPTER VI.
OF PLEDGE AND LIEN.
1396. Pledge is a contract by which one man advances a sum
of money to another on the faith of a special moveable subject, of
which the former obtains the temporary possession, but which he
binds himself to redeliver on repayment of the money. It is
further of the essence of this contract, that, if the money be not
repaid within a reasonable period, which is usually fixed by stipulation,
the holder of the subject, or pledgee, shall be entitled to
bring it to sale.
1397. Lien differs from pledge in this, that in lien the property
of the debtor is already in the hands of the creditor, who retains
1 See Cayle's case in Smith's Leading Cases; Roscoe's Digest of the Law of
Evidence at Nisi Prins, 9th edition, p. 415.
it in security for his debt. The principal objects over which the
right of lien rests are:— A ship for repairs; goods conveyed by a
carrier or shipowner for dues or freight; luggage, horses, or carriages
of a traveller, for the price of entertainment at an inn;
and cattle pastured in a field, for the value of the grass. Law
agents have also a lien over the title-deeds of their clients for
payment of their accounts, and bankers over bills of their customers
not discounted. Another case in which lien has been admitted
is that of successive purchases for the balance; thus, if
A purchased three lots of sugar from B without paying the price,
and bought a fourth for which he did pay, the seller would be
entitled to retain the last lot in security for the balance.1
1398. The nature of hypothec has been already illustrated.2
It differs from both pledge and lien in this, that the subject of it
remains in the hands of the debtor.
1399. The chief occasions in which pledge is resorted to, are —
(1.) Temporary pressure for money on the part of a merchant
possessed of goods, of which, from the accidental state of the
market, he is unable or unwilling to dispose; and (2.) Extreme
poverty.
1400. Its employment in the former case usually takes place
under the Warehousing, in the latter, under the Pawnbroking Acts.
1401. In addition to the benefits which result to trade from
its ordinary employment under the former enactments, it has sometimes
been employed by Government in extraordinary circumstances
with the most remarkable advantage. Of this Mr Bell
has given an interesting example in his Commentaries. "In
1793," he says, "in consequence of many concurring causes of
despondency which marked that eventful period, there was
throughout Great Britain a general distrust. A number of
country banks stopped payment; discounts were entirely at an
1 Mein v. Bogle and Co., 17th January 1828.
2 Ante, pp. 235 and 238.
end; the Bank of England refused to go further in supporting
the mercantile classes; and many eminent manufacturers suspended
their works, and were utterly unable to resume them, or
afford employment to their labourers. At this crisis Government
interfered. Parliament authorised five millions to be lent on
Exchequer bills on the deposits of goods; and in a very short
time credit was restored as by a miracle. Not more, perhaps,
than one-fifth of the whole sum was ever called for. The mere
knowledge of the relief restored confidence; and the commissioners
on the Act reported, that the advantages of this measure
were evinced by a speedy restoration of confidence in mercantile
transactions; and that the whole sums advanced on loans were
paid, a considerable part before it was due, and the remainder
gradually at the stated periods, without apparent difficulty or
distress.'" It is very important that the results of so successful
an experiment in finance should not be forgotten.
1402. The latest Act for regulating the warehousing of goods
under bond is 8 and 9 Vict., c. 91.
1403. It is therein provided that the Commissioners of the
Treasury shall fix upon certain warehousing ports, and shall there
appoint warehouses in which goods may be kept, without payment
of any duty on their entry, upon bond granted for the ultimate
payment of the full dues of importation, or, where the goods
are prohibited to be imported for home use, for their due exportation.
(Sees. 1, 2, and 8.)
1404. Such bonds may be granted, either by the keeper or
proprietor of the warehouse, in a general shape, and for the purpose
of covering all the goods deposited with him, or by the
different importers of the separate quantities of goods. (Sec. 8.)
1405. The goods must be carried to the warehouse under
authority of an officer of customs (sec. 15), and must be produced
to such officers on demand, under a penalty of L.5.
1406. All goods so warehoused must be cleared, either for
exportation or home use, within three years, and surplus ships'
stores in one year; and if not so cleared they shall be sold, and
the produce applied to payment of the warehouse rent and other
charges, — the overplus (if any) being paid to the proprietor.
The purchaser is allowed three months for clearing, at the expiry
of which the goods are forfeited.
1407. Consignment of goods sent from a distance in security
or satisfaction of debt, is another mode in which the contract of
pledge is in frequent use by merchants in one country who have
creditors in another.
1408. Paumbroking is a transaction which has everywhere been
regulated by the most stringent legal provisions for the prevention
of fraud and oppression. The earliest statute on the subject
is 1st James I., c. 21, the latest 19 and 20 Vict., c. 27; the
leading enactment by which those which had preceded it were
consolidated, and which, in connection with the General Burgh
Police Act, 13 and 14 Vict., c. 33, and local police arrangements,
still regulates the business of pawnbroking, being 39 and
40 Geo. III., c. 99 (28th July 1800).
1409. The most prominent statutory requirements are — that
each pawnbroker shall take out an annual license; that he shall
have his name as a pawnbroker over his door; that he shall not
take pawns before or after certain hours of the day— from
persons intoxicated, or under twelve years of age; that he shall
enter each article in a book, with a note of the name and abode
of the pawner, and deliver to him a duplicate of such note, to be
produced when the article is reclaimed; that the advance shall
not exceed L.10 on one article; that each article shall be kept
for a year, after which it may be sold by the broker, unless in
the case of notice being given for a further indulgence of three
months.1
1 See Barclay's Justice of the Peace, and McGlashan's Digest of the Laws of
Pawnbroking.
1410. In order to prevent depredations by workmen and apprentices,
the pawning of unfinished goods is prohibited.
1411. By the recent Act, 19 and 20 Vict., c. 27 (23d June
1856), above mentioned, it is provided that the following persons
shall be deemed to be pawnbrokers within the meaning of the
previous Acts, viz. — "Every person who shall keep a house,
shop, or other place for the purchase or sale of goods or chattels,
or for taking in goods or chattels by way of security for money
advanced thereon, and shall purchase, or receive, or take in any
goods or chattels, and pay, or advance, or lend thereon a sum not
exceeding L.10, with or under any arrangement or understanding,
express or implied, or which from the nature or character
of the dealing may reasonably be inferred, that such goods or
chattels may be afterwards redeemed or repurchased on any
terms whatever." (Sec. 1.)
1412. If any person declared to be a pawnbroker under this
or any of the previous Acts shall fail to take out the proper
license, he shall forfeit L.50, which shall be recoverable by summary
information before any Justice of the Peace in the name of
an officer of the Inland Revenue; the justices being empowered
to mitigate the said penalty to one-fourth.
1413. The proceeding may take place before a Sheriff or
Sheriff-substitute in Scotland; in which case there shall be no
appeal to the Quarter Sessions, but the judgment of the Sheriff
shall be final.
CHAPTER VII.
BANKRUPTCY AND INSOLVENCY.
1414. Every system of bankrupt law must have the two following
objects primarily in view:—1st, The economical realization
of the funds of the bankrupt; and 2d, Their fair and equal
application, to as great an amount as possible, to the payment
of his debts.
1415. In order to the attainment of these ends, it is necessary
—1st, That the proceedings should be carried through with as
much expedition as can possibly be made to consist with justice;
because, in mercantile transactions above all others, time is
money. 2d, That all misappropriation of funds by the debtor,
and all undue preference of one creditor over another, should be
checked from the first moment of insolvency. 3d, That the
estate should be placed under one neutral management for the
benefit of all the creditors, and thus the expense of separate
proceedings by individual creditors, which might fall to be paid
by the whole estate, should be avoided. 4th, That an effective
control should be established over this management by the public
judicatories of the country, so as to exclude the possibility either
of partiality or of undue delay in distributing the funds. 5th,
That the judicial proceedings necessary for the adjustment of
doubtful or disputed claims should be as cheap and simple as
possible. 6th, That whilst the honest debtor is discharged from
his debts, or at least protected against diligence, every means
should be adopted to detect fraud, to defeat concealment, to
secure evidence of such offences, and to punish their perpetrator,
or at least to deprive him of protection and discharge.
1416. As our limits preclude any attempt at an historical
review of so wide a subject as the Bankrupt Law of Scotland, we
shall endeavour to state, as concisely as possible, the special
means by which the objects here enumerated have been sought
to be attained by the recent "Act to Consolidate and Amend
the Laws relating to Bankruptcy in Scotland."1
1417. Sequestration. — A sequestration at common law is a process
by which an heritable estate, regarding which a litigation is
pending, is taken possession of by the Court in order to its being
preserved from dilapidation, and managed under judicial authority,
till the interests of the respective claimants be ascertained.
1418. The statutory sequestration in a mercantile bankruptcy,
on the other hand, is the usual, though not the only mode, by
which an insolvent debtor brings himself, or is brought by his
creditors, within the operation of the bankrupt laws.
1419. By this proceeding, the whole estate of the bankrupt,
heritable and moveable, is removed from his control, and placed
under judicial authority, in order to its being vested in a neutral
person for distribution among his creditors; whilst the creditors
themselves, from being isolated individuals with opposing interests,
are, by the comparative equality of rights henceforth existing
amongst them, all formed into one body with common
interests for the attainment of a common object.
1420. As it is usually by means of a sequestration that a
debtor is discharged from his obligations, and his future acquisitions
protected from diligence, it is commonly granted on his
own petition, with the concurrence of one or more of his creditors.
The concurrence of one creditor to the extent of L.50, of two
to the extent of L.70, or of three or more to the extent of
L.100, is sufficient. In addition to the prospect of ultimate discharge,
the sequestration is commonly accompanied by a present
protection from arrest or imprisonment for debt contracted previous
to its date.
1 19 and 20 Vict., c. 79 (1856).
1421. The circumstances in which sequestration will be
granted at the instance of his creditors, where the debtor is
either dead or declines to petition, are enumerated in the 13th
sec. of the recent Act.
1422. The same section introduces a very important alteration,
by extending the remedy of sequestration, which was
formerly confined to persons engaged in some species of mercantile
or trading transactions, to all persons whatsoever. The
ground of the restriction was, that as an honest bankruptcy was
scarcely conceivable in the case of a person not engaged in trade,
the benefits of a process, which was to terminate in discharge
upon less than full payment of the debt, would, in their ease, be
little else than a premium on improvidence. The infinite ramifications
of trade, whereby almost every member of the community
has become a shareholder in some species of trading
company, had long rendered the restriction practically inoperative;
and its removal will put an end to a class of questions, the
discussion of which had no other effect than to diminish the common
fund for ultimate distribution. All that is now requisite is,
that the applicant shall be subject to the jurisdiction of the
Supreme Courts of Scotland.
1423. Where any delay occurs as to granting sequestration,
or where unusual promptitude is required, either for the purpose
of checking fraud, or disposing of perishable goods, it is competent
for the Court to which the petition has been presented,
either on special application or at their own instance, to take
measures for the preservation of the estate in the meantime,
either by the appointment of a judicial factor, or by such other
proceeding as may be judged necessary (sec. 16). Formerly
the temporary custody and preservation of the estate was confided
to an interim factor, elected by the creditors. The powers
of the interim factor were more extensive than those of the judicial
factor thus appointed by the Court, in consequence of the
longer space which, under the former system, might intervene
between the granting of the sequestration and the appointment of
the trustee.
1424. During the short period which may still elapse before
the trustee is appointed, the Sheriff has power to cause the books
and papers of the bankrupt to be sealed, and to lock up his shop
or other premises and keep the key, till the trustee is elected and
confirmed.
1.425. Another very important regulation introduced by the
Act is, that sequestration may be awarded either by the Court of
Session or by the Sheriff of any county in which the debtor, for
the year preceding the date of the petition, has resided or carried
on business; and that, in the case of two or more sequestrations
being awarded by different courts, the later ones shall be remitted
to the first in date.
1426. The sequestration may be opposed, either by the debtor
himself, who may object to a proceeding which deprives him of
the capacities of a solvent person, and proclaims him as a bankrupt
to the whole world, or by creditors who may have a prospect of
acquiring preferences which the sequestration will destroy; or it
may be recalled, even after it has been granted, by a majority in
number and four-fifths in value of the creditors resolving that the
estate shall be wound up under a private deed of agreement, and
applying to the Lord Ordinary to sist procedure. On production
to him of a reasonable deed of agreement, properly executed,
the Lord Ordinary or the Sheriff will declare the sequestration
at an end.
1427. But let us suppose that the sequestration proceeds in the
usual manner. — In the deliverance by which it is granted, whether
by the Lord Ordinary or the Sheriff, the creditors are appointed
to meet at a specified place and hour on a specified day, which
shall not be less than six or more than twelve days from the date
of the notice of sequestration, which the Act requires to be inserted
in the Edinburgh Gazette, for the election of a trustee or
of trustees in succession (sec. 67). The trustee in a mercantile
sequestration under the bankrupt statutes differs from a
judicial factor in a sequestration at common law in this essential
point, that whereas the latter is an administrator merely,
the latter is a distributor of the estate entrusted to him.
"The general description of the office and duties of the trustee,"
says Mr Bell, "is this: He is the trust proprietor and manager
of the estate and effects; the judge, in the first instance, of all
claims of debt and preferences, and the distributor of the divisible
fund."
1428. As it is a matter of the highest importance that the
trustee shall be impartial, it is enacted (sec. 68) that it shall not
be lawful to elect the bankrupt, nor any person "conjunct or
confident" with him, or whose interests are opposed to the general
interests of the creditors. The trustee must also be resident
within the jurisdiction of the Court of Session. It is neither unlawful
nor unusual for a creditor to be trustee where he has no
material interest adverse to that of the other creditors. On the
same ground, whoever is the mere creature of a person who would
be ineligible himself, is ineligible. It is for the creditors to
judge of the respective qualifications of rival candidates for the
office of trustee, and the Court will not interfere with their
decision.
1429. If two or more creditors shall give notice to the Sheriff
of the county, he shall attend either in person or by his substitute,
and preside at the meeting for the election of the trustee. The
Sheriff-clerk or his depute must also be present, and write the
minutes in presence of the meeting, and perform the other duties
of clerk.
1430. When the Sheriff is not present, the creditors elect their
own preses, and, when the Sheriff-clerk is not present, their clerk.
The minutes must be signed by the person who presides, and
they ought strictly to be written and executed in presence of the
meeting. They begin by a list of the persons present, and this
forms the record of voters. They also contain a statement that
the vouchers, grounds of debt, and oaths of verity have been
regularly produced, and that the mandates of those creditors
who claim to vote by agents were shown to the meeting. The
amount of debt on which each claimant votes should also be set
forth. (Sec. 68.)
1431. The creditor is bound in his oath to put a specific value
on any security which he may hold for his debt over the bankrupt
estate, and to deduct its value from the debt. He is then
entitled to vote on the balance. If the creditor has an obligant
bound to him along with the bankrupt, such obligation shall be
valued and deducted in the same manner. The like deductions
must be made to entitle the creditor to be ranked in order to
draw a dividend, and, on payment of the balance, the trustee
is entitled to a conveyance of the security for behoof of the
estate.
1432. The creditors and their mandatories, thus entitled to
vote, shall then and there elect a fit person to be trustee
(sec. 68).
1433. The election of the trustee, and all other questions at
meetings of creditors not otherwise provided for, is decided by
the majority in value of those present and entitled to vote
(sec. 101).
1434. If there be no competition or objection, the Sheriff, if
present, declares the person chosen to be trustee by a deliverance
on the minutes, or, if absent, on the proceedings being
reported to him by the proses.
1435. If there be competition or objections to candidates,
such objections shall be stated at the meeting, and the Sheriff
may either decide them forthwith or take them to avizandum.
If he should adopt the latter course, he is to make a note of the
objections and answers, and to hear the parties on them viva
voce within four days. Secs. 69 and 70. The Sheriff shall then
pronounce a judgment, declaring the person whom he shall find
to have been elected to be trustee. This judgment shall be
given with the least possible delay, and shall be final, and in no
case subject to review in any court or in any manner whatever
(sec. 71). Wherever objections have been stated to the trustee
elected by the majority, it is prudent to elect another trustee or
trustees, who shall succeed to the office in case of the election of
the first being annulled. If this arrangement, which the statute
authorises, be neglected, the whole election will be annulled,
should a personal objection to the first trustee be sustained by
the Sheriff.1
1436. A creditor is not excluded from voting in the election
though he should be himself ineligible.
1437. Where the estates both of a company and of the individual
partners are sequestrated, the two sets of creditors may
concur in electing the same trustee.
1438. The creditors, at the meeting at which the trustee is
elected, are to fix a sum for which he shall find security,
and decide on the sufficiency of such security as he may offer
(sec. 72).
1439. Unless the creditors limit the sum, the Court will require
security for the whole intromissions.
1440. On the decision of the Sheriff declaring the person duly
elected, and on a bond by the trustee and his cautioner being
lodged, the Sheriff shall confirm the election, and his confirmation
shall be final; and the Sheriff-clerk shall issue an act and
warrant to the trustee, who shall immediately transmit a copy of
it to the accountant in bankruptcy, in order that his name and
designation may be entered in the register of sequestrations.
This act and warrant shall be a title to the trustee to perform
1 Bell's Com., p. 1224.
the duties imposed by the Act, and shall be evidence of his right
and title to the sequestrated estates both heritable and moveable.
It also vests in the trustee all real estate in England, Ireland,
and the Colonies, provided it be registered in the chief Court of
Bankruptcy for the country in which the property is situated
(sec. 73).
1441. Commissioners. — After the election of the trustee, the
creditors are to elect, at the same meeting, three commissioners,
who must be either creditors or mandatories of creditors. The
proceedings are the same as those for the election of the trustee,
and no person shall be qualified who was not eligible as trustee.
The commissioners are not required to find security (sec. 75). A
majority of the creditors, assembled at any meeting duly called
for that purpose, may remove a commissioner and elect another
in his place (sec. 76).
1442. The commissioners are a committee of the creditors for
assisting the trustee in the management of the estate, and superintending
his proceedings, and concurring with him in submissions
and transactions. To them also is entrusted the important duty
of declaring the dividends (sees. 125, 130, and 132). Any commissioner
may make such report as he thinks fit to a general meeting
of creditors.
1443. Removal of Trustee and Commissioners. — A majority in
number and value of the creditors, present at any meeting duly
called for the purpose, may remove the trustee or accept his
resignation. One-fourth of the creditors in value may at any
time apply to the Lord Ordinary for the trustee's removal; and
if the Lord Ordinary be satisfied that sufficient reason has been
shown, he shall remove the trustee, and appoint a meeting of
creditors to be held for devolving the estate on the trustee next
in succession, or electing a new one.
1444. The accountant in bankruptcy, appointed by sec. 156,
is required to take cognisance of the conduct of all trustees and
commissioners; and, in the event of their not faithfully performing
their duties, to report the same to the Court of Session;
who, after hearing such trustees or commissioners, shall have
power to censure, or remove them from their office, or deal with
them otherwise as justice may require (sec. 159).
1445. Each trustee must make an annual return, through the
Sheriff-clerk, to the accountant of the position of the estate
under his charge; and any trustee failing to make such return
shall be removable at the instance of the accountant or of one
creditor, be subject to such censure as the Lord Ordinary may
think suitable, and be found liable in expenses.
1446. Where the trustee is removed by a majority of the
creditors, it is not necessary that any cause should be assigned.
1447. The trustee cannot resign against the wish of the
creditors; and even a resolution by a majority in value and number,
to accept his resignation, may be brought under review of the
Court.
1448. Trustee's Inventory. — As soon as the trustee has taken
possession of the bankrupt's estate, he must make up an inventory
and valuation, and transmit a copy thereof to the accountant.

1449. The bankrupt is bound to afford to his creditors every
information regarding his property, both actually existing and
in expectancy, and so aid the trustee in the execution of his duty.
In case of his failure to do so, or to grant any deed requisite for
the recovery or disposal of his estate, the trustee may apply to
the Sheriff, who, unless cause be shown to the contrary, shall
grant a warrant for his imprisonment (sec. 81). For his sustenance
whilst engaged in the duties imposed on him, an
allowance is made to the bankrupt, the maximum of which, excepts
in extraordinary circumstances, is fixed at three guineas
a-week.
1450. Examination of the Bankrupt. — Within eight days after
his confirmation, the trustee must apply to the Sheriff to fix a
day for the public examination of the bankrupt; whereupon the
Sheriff issues a warrant for him to attend within the Sheriff-Court
house on a specified day, not sooner than seven or later
than fourteen days from the date of the warrant. The examination,
taken upon oath, is written or dictated by the Sheriff, and
authenticated as a regular deposition. If the bankrupt refuse
to answer questions, or to produce books, deeds, and other
documents, without lawful cause shown, he may be committed to
prison by the Sheriff. He is not bound to answer any question
that has a tendency to criminate himself; but he must submit
to the risk of his refusal involving him in the guilt of undue
concealment, if there be any property thereby left unaccounted
for.
1451. The Sheriff cannot, in the course of the examination,
legally commit for punishment of prevarication, perjury, or concealment,
as crimes. The remedy is under the criminal law, by
a commitment for trial, on due application being made. The
proper commitment, where there is no new application of a
criminal nature, is simply "till he shall make a full and satisfactory
answer to the question put," and this question ought to be
specified in the warrant.1
1452. Examination of Conjunct and Confident Persons. — The
Sheriff may at any time, on the application of the trustee, order
an examination of the bankrupt's wife and family, clerks, servants,
factors, law agents, and others who can give information
relative to his estate, and issue his warrant for their appearance
(sec. 90).
1453. Although, by the common law, a wife is not a competent
witness for or against her husband, yet, by the statute, she may
be examined for the discovery of the estate concealed, kept, or
disposed of by herself or others whom she has employed.
1 Beffs Com., ii., p. 1239, Shaw's Edition
1454. Discharge of the Bankrupt on Composition. — An offer of
composition on the whole debts, with security for payment of
the same, may be made, either by the bankrupt or his representatives,
at the meeting for the election of the trustee, or at
the subsequent meeting; and if this offer be entertained and
finally accepted by a majority in number and four-fifths in value,
the bankrupt, on making a declaration or oath before the Sheriff
or Lord Ordinary, to the effect that he has made a full and fair
surrender of his estate, shall be discharged of all debts and
obligations for which he was liable at the date of the sequestration;
and the sequestration shall be at an end, and the bankrupt
reinvested in his estate, reserving the claims of the creditors for
the said composition against him and the cautioner (secs. 137,
138, 139, 140). But the sequestration shall go on notwithstanding
any offer of composition, and the trustee shall proceed
as if no such offer had been made, until the deliverance by the
Lord Ordinary or Sheriff, when the sequestration shall cease,
and the trustee be exonered and discharged (sec. 142). If the
offer of composition be rejected, no other can be entertained
unless nine-tenths of the creditors ranked shall agree.
1455. Discharge of Bankrupt without Composition. — 1st, The
bankrupt may, at any time after the meeting held after his examination,
petition the Lord Ordinary or Sheriff for his discharge,
provided every creditor shall concur in the petition; 2d, he may
present such petition on the expiration of six months from the
date of the deliverance awarding sequestration, provided a
majority in number and four-fifths in value of the creditors concur;
3d, he may do so on the expiration of eighteen months
after said deliverance, with concurrence of a majority in number
and value; or 4th, he may do so, on the expiration of two
years from the same date, without any consent of creditors. If
there is no opposition, the Sheriff shall grant the discharge in
twenty-one days after the petition has been intimated in the
Gazette; and if appearance is made, he shall dispose of the objections,
and grant the discharge, or delay it, or refuse it, as he
may see cause.
1456. Notour Bankruptcy. — In order to render more effectual
what were in reality the principles of the common law, and check
if possible the complicated frauds so frequently practised on the
eve of bankruptcy, it was provided, by 1621, c. 18, that no debtor
after insolvency should fraudulently diminish the funds, which in
reality belonged not to him, but to his creditors; and, further,
that fraudulent dealing should be presumed if the deed was gratuitous,
executed after the contracting of debt, and in favour of
a near relation or a confidential friend. The subsequent Act,
1696, c. 5, declared that all voluntary dispositions, assignations,
and other deeds granted by the bankrupt, at or after the time of
his bankruptcy, or within sixty days of it, in favour of a creditor,
either in satisfaction or further security of debt, should be null.
These provisions have been retained, and others with a similar
object introduced, by subsequent enactments (secs. 107 to 111).
All alienations not subject to these or any other objections,
either statutory or at common law, fall, like preferable and protected
debts, to be deducted in the first instance from the fund
for distribution among the creditors; and hence, with reference
to the interruption of prescription in Scotland, the statute of limitations
in England, and for many other purposes, as well as with
a view to subsequent acquisitions, the importance of fixing the
precise period at which legal bankruptcy takes place.
1457. By sec. 7 of the recent Act, it is provided that notour
bankruptcy in the case of an individual shall be constituted by
the following circumstances:—
1458. 1. By sequestration in Scotland, or by the issuing of
an adjudication of bankruptcy in England or Ireland.
1459. 2. By insolvency, concurring either — (1.) with a duly
executed charge for payment, followed, where imprisonment is
competent, by imprisonment; or (2.) formal and regular apprehension
of the debtor; or (3.) by his flight or absconding from
diligence; or (4.) retreat to the sanctuary; or (5.) forcible defending
of his person against diligence; or where imprisonment
is incompetent or impossible, (6.) by execution of arrestment
of any of the debtor's effects not loosed or discharged for fifteen
days, or by execution of poinding of any of his moveables, or
by decree of adjudication of any part of his heritable estate for
payment or in security.
1460. 3. Notour bankruptcy will farther be constituted. — By
insolvency concurring with (1.) sale of any effects belonging to
the debtor under a poinding, or (2.) under a sequestration for
rent, or (3.) with his retiring to the sanctuary for 24 hours,
or (4) with his making application for the benefit of cessio
bonorum.
1461. Sec. 8 enacts, that in the case of a company, notour
bankruptcy shall be constituted either in any of the foregoing
ways, or by any of the partners being rendered notour bankrupt
for a company debt.
1462. Notour bankruptcy commences from the time when its
several requisites concur, and continues till the debtor obtains
his discharge, or till insolvency ceases (sec. 9).
1463. Ranking. — The general rule of ranking is, that all arrestments
and poindings which have been used within 60 days
prior to the constitution of notour bankruptcy, or within four
months thereafter, shall be ranked pari passu, as if they had all
been used of the same date.
1464. Cessio Bonorum. — This equitable process for the relief
of the debtor from the severity of the early laws of imprisonment
for debt, was introduced into the Roman law by Julius
Cæsar. From this source it was borrowed by us, probably
passing through the medium of the law of France.1
1 See its History in Bell's Com., vol. ii., p. 1092.
1465. The jurisdiction in cessios, which formerly belonged exclusively
to the Court of Session, was, by 6 and 7 Will. IV.,
c. 56, extended to Sheriffs. The following are the leading provisions
of this statute, by which the law of cessios is still mainly
regulated:—
1466. Any debtor in prison at the time, or who has been in
prison, or against whom a warrant of imprisonment has been
issued, may apply for decree of cessio. In the petition he sets
forth his inability to pay his debts, and his willingness to surrender
his estates, and prays for interim protection. The petition
is intimated to the creditors in the Gazette, and the bankrupt
lodges a state of his affairs, subscribed by himself, with all
books and papers relating to his affairs, with the Sheriff-clerk.
On a day appointed for compearance, the debtor is examined
before the Sheriff on oath; and if the creditors object to the
petition, they are heard, and, if necessary, a proof is allowed.
The Sheriff may either grant decree or refuse it, or make
such other order as to him may seem just, — his order being
subject to review by the Court, or the Lord Ordinary in vacation.

1467. Cases originating in the Court of Session are left on
the former footing; and are consequently sued out in the form of
a summons, to which all the creditors are called as defenders.
Any one of the creditors may appear in this action; and the pursuer
will not be allowed the benefit of the process till he has
satisfied the Court that his inability to pay his debt has arisen
from misfortune, and that his disclosure of the state of his
affairs is full and honest. The burden of proving his objections,
however, will be laid on the creditor.
1468. It is competent either for the Sheriff or the Court to
grant protection or liberation to the debtor whilst the process
is pending, provided he find caution to attend all diets when required.

1469. A decree of cessio operates as an assignation of the
debtor's moveables for behoof of the creditors, in favour of a
trustee mentioned in the decree.
1470. Trustees in cessios, like those in sequestrations, are now
placed under the supervision of the accountant in bankruptcy
by sec. 167 of the Bankrupt Act.
1471. A decree of cessio differs from a sequestration, in conferring
on the bankrupt no power to insist on his discharge; and
it affords, consequently, no protection against the attachment
of his subsequent acquisitions by his creditors. Before proceeding
to new acquisitions, however, the creditors are bound
to realise those conveyed to them by the disposition omnium
bonorum, and apply them to the extinction of his debts.
1472. The debtor has the privilege of retaining his working
tools; but nothing beyond a mere aliment will be allowed, even
to half-pay officers and clergymen.
1473. Section 168 of the recent statute enacts, that a majority
in number and value of the creditors, if it shall appear to them
that the estate is not likely to yield free funds for division, after
payment of preferable debts and expenses beyond L.100, may
resolve that the bankrupt shall only be entitled to apply for a
decree of cessio, and shall have no right to a discharge in the
sequestration. This resolution may be brought under review
of the Lord Ordinary or the Sheriff; but if it is confirmed, the
bankrupt shall have no right to a discharge in the sequestration,
but shall be entitled to apply for a decree of cessio, and the
Court shall have power to grant the cessio in the sequestration
without requiring the bankrupt to bring a separate process;
and in all other respects the sequestration shall be proceeded
with in common form.
CHAPTER VIII.
OF BILLS AND PROMISSORY NOTES.
1474. The constant occurrence of pecuniary transactions
amongst merchants has led them, in all civilised countries, to
adopt expedients for cancelling their obligations to each other,
without the trouble and risk attendant on the actual transmission
of money, and for avoiding the inconveniences inseparable from
delay, by substituting credit for present payment.
1475. Bills of exchange, inland bills, and promissory notes, the
instruments by which these objects are usually effected, are the
simplest in form, whilst at the same time they are the most rapid
in execution, of all obligations known in law.
1476. Like all other mercantile instruments, they are exempted
from the cumbrous forms of authentication required in common
deeds, and this exemption they enjoy even when employed in the
constitution of ordinary money obligations. Neither in this nor
in other respects is there any distinction in law between these
instruments when applied to mercantile, and non-mercantile
transactions; and as they are now very extensively employed in
the latter, it is requisite that the danger of forgery, to which
their mercantile privileges expose them, should be guarded
against by the strictest conformity to such rules as law and
custom have imposed on them.
1477. In addition to that just mentioned, bills and notes possess
two other remarkable privileges, viz., transmission by indorsation,
and summary execution.
1478. To the first they are indebted for the great value which
they possess as circulating media in trade; by the second, a
cheap and efficacious method of enforcing the obligations which
they constitute is supplied, without the intervention of litigation.

1479. A Bill of Exchange is a request, in the form of an open
letter, addressed by a person called the drawer to his debtor or
correspondent abroad, who is called the drawee, desiring him to
pay to a third person, usually the creditor of the drawer, called
the payee or porteur, a sum of money within a certain time after
date, or on demand, or on sight of the bill. After the bill has
been signed by the person to whom it is addressed (the drawee),
in token of his willingness to comply with the request which it
conveys, he is then called the acceptor. The bill then constitutes
a debt against him in favour of the payee, and has the same effect
as if money for the use of the latter had been actually transmitted
and lodged with the acceptor.
1480. To obviate the risk of loss, it is usual to draw foreign
bills in sets of two or three, and to transmit them by different
conveyances.
1481. Though no express form of words is legally requisite in
mercantile instruments, custom has fixed certain modes of expression
from which it is scarcely safe to deviate. The following is
the usual form of an ordinary foreign bill:—
L.100 sterling. Glasgow, March 1, 1860.
At sixty days after sight (or other future time) of this my
(first) of exchange, second and third of same date and tenor
being unpaid, pay to my order (or to C. D. or order) the sum of
one hundred pounds sterling, for value as advised.
(Signed) A B.
B C and Co.
To Messrs B C and Co.,
Merchants, Trieste. (Date acceptance.)
1482. An Inland Bill is simply the foreign bill applied to
inland trade;1 its object being to make payments in the most
convenient form, allowing for the credit or delay in payment
usually given in the particular line of traffic. There are here, for
the most part, only two parties — the creditor who draws the bill,
and is himself the payee, and the debtor who accepts it; though a
third party is often introduced as payee. After acceptance the
bill either remains with the drawer, or is by him assigned by indorsement
in payment of debt, or for ready money, usually to a
banker. If not paid at the date mentioned, or, as it is said,
"retired on maturity," it may be put to immediate execution;
that is to say, the debt of which it is an acknowledgment may
be exacted from the acceptor by the summary legal process
afterwards to be explained.
1483. The following is its simplest form :—
L.100. Leith, March 1, '60.
Three months after date, pay to me, or order, the sum of one
hundred pounds sterling for value.
(Signed) A B.
To C D, Grocer, C D.
Edinburgh.
1484. The form, of course, may be varied by specifying the
place of payment, by being drawn in favour of a third party, or
on several parties jointly and severally, by being made payable
at sight or at a certain time after sight, or by instalments.
1485. "Where a bill is drawn, payable at a certain time after
sight, the date of payment must be marked, in order to regulate
the term of payment. It has been found to be no objection to
the genuineness of this date, that it is written in a different hand
from the drawee's signature, as the date is often written by a clerk
before the acceptance. . . . It is the date of presentment which
1 19 and 20 Vict., c. 60, sec. 12.
regulates the term of payment, and there may be some difference
betwixt it and the date of acceptance."1
1486. Promissory Notes, though the simplest of all in form,
came last into use as negotiable instruments. Here the debtor,
who is called the maker of the note, promises within a certain
time, or on a specified day, to pay to the creditor named in the
note a certain sum. Thus:
L.100. Edinburgh, March 1, '59.
I promise to pay on demand (or at some other period) to A B
or order, within my house (or elsewhere), the sum of one hundred
pounds sterling for value.
(Signed) C D.
1487. Such notes may be granted by several persons obliging
themselves jointly and severally to pay either the whole sum at
once or by instalments. They may be passed from one to
another by indorsation the same as bills, and have the same
privilege of summary execution.
1488. Requisites of Bills and Notes. — These documents must be
perfectly clear and intelligible, otherwise they will not be entitled
to summary execution, whatever may be their ultimate value as
adminicles of proof.
1489. Further, the obligation must be absolute; for if words
be added which render it conditional or contingent, the writing,
even although holograph and valid as a voucher of debt, will not
enjoy the privileges of a bill. Such, however, will not be the
case where the words are merely explanatory, and leave the
essence of the obligation unconditional.2
1490. A bill must be for money, not goods; and in England
it has even been held that a note payable in money, "or Bank
1 Thomson on Bills, p. 341-2, and note; see Acceptance, infra.
2 Bell's Com., vol. i., p. 306.
of England notes," was bad. But a clause of interest does not
vitiate the bill.
1491. Date.—The Mercantile Law Amendment Act of 1856
(19 and 20 Vict., c. 60, sec. 10) provides, that where a bill or
promissory note is issued without date, it shall be competent to
prove by parole evidence the true date at which the bill or note
was issued; provided that summary diligence shall not be competent
on a bill or note issued without a date.
1492. Subscription. — Bills and notes may be subscribed by
procuration; but the power, as Mr Bell observes, "is a dangerous
one, and ought not only to be granted with reserve, but
acted upon by third parties very scrupulously."It is commonly
granted by letter or power of attorney; but in this respect the
practice of merchants has introduced very great looseness. In
accordance with this practice, both the common courts in
England and the House of Lords have held that the power of
procuration could not only be conferred verbally, but might be
inferred from circumstances; and a Scotch dictum, in which the
necessity of a special mandate was insisted on, was commented
upon by Lord-Chancellor Eldon as an error.1 But this doctrine
is applicable only to mercantile cases. Unless the person who
signs by procuration expresses his representative character, he
will be personally liable.
1493. Subscription by initials or by mark is not sufficient to constitute
a valid bill or note, whatever may be the value of the
document so subscribed, as a ground of action, or of a claim in
bankruptcy. If the name be written on a piece of blank paper
properly stamped, the writer will be held to be the drawer or
acceptor, as the case may be, of the bill afterwards written above
his name. The drawer's name in the body of the bill, in his own
handwriting, is equivalent to his subscription.
1494. When a blank is left in the document, or the sum is so
1 Davidson v. Robertson, July 4, 1815, 3 Dow. p. 218.
written as to be capable of alteration without detection, and
where such alteration has been effected, a third party deceived
in consequence of the negligence of the drawer, will be
entitled to recover from him the whole sum by summary diligence.
But if the alteration has been made in so clumsy a
manner as not to deceive a person of ordinary vigilance, this fact
will form a good defence.1
1495. Minors. — The rules for the protection of minors2 are so far modified in relation to their bills and notes, that they are
effectual to a bona fide holder for value paid, or where they are
granted in the line of a trade in which the minor is actually
engaged.
1496. Married Women. — As the personal obligations of a wife
are null, she cannot grant or indorse bills.
1497. Recourse. — The act of drawing a bill implies an obligation
that it shall ultimately be paid, and the person in whose
favour it is drawn has thus recourse on the drawer should the
drawee fail to accept or to pay.3
1498. Acceptance must now, in accordance with 19 and 20
Vict., c. 60, sec. 10, be in writing on the bill itself — verbal
acceptance conferring none of the privileges of an accepted bill;
but verbal acceptance, or even a promise to accept, will complete
the transfer of the drawer's debt to the payee, though
such acceptance would probably be ineffectual in a competition
with creditors.
1499. Acceptance may be implied from detention of a bill, or
refusal to redeliver it when left for acceptance.
1500. Refusal to accept, as evidence of notice, if the drawee is
possessed of a fund, will give the payee a right to the fund as
assignee.
1501. Acceptance may be by procuration; but the holder of
1 Bell's Corn., vol. i., p. 308, and authorities given.
2 Ante, p. 66. 3 As to obligations of indorsee, v. infra, p. 271.
the bill is not bound to take such acceptance without seeing the
warrant.
1502. The acceptance of a partner binds the firm, unless the
holder of the bill was aware that it had reference to the partner's
private affairs.
1503. Conditional Acceptance. — Acceptance may be to the
effect that the person drawn on will pay, "when in cash, by a
remittance not yet arrived," or on the "arrival of a particular
ship," or "when goods consigned shall be sold," etc.; and such
acceptance is binding on the condition being fulfilled, not otherwise.

1504. Acceptance may also be for a part only of the sum
drawn for, or it may vary from the terms of the draft in the
time or mode of payment. But the payee is not bound to take
an acceptance qualified by these or any other conditions.
1505. Acceptance "as executor," "as cautioner," whatever
effect it may have in a question of relief, has none as against the
holder of the bill. It is an absolute acceptance.
1506. Acceptance and Payment for Honour. — To prevent the
return of a bill, and the accumulation of expense, a friend or
agent of the party or parties to a bill may accept it for their
honour, supra protest. The person so accepting is liable to all
the parties, except those for whose honour he has accepted. Such
acceptance must be under protest before a notary and witnesses,
and the instrument stating the fact must be sent, without delay,
to the person for whose honour the bill is accepted. In this
case the bill ought to be first protested and then accepted; and
the same course ought to be followed where the bill is paid for
honour.
1507. The holder of the bill may refuse acceptance, but not
payment for honour.
1508. Indorsement is an order to pay the contents to a particular
person, or to the bearer. If the name of the indorsee be
stated, it is called a full indorsement; if not, it is a blank indorsement.
In the latter ease indorsation generally consists merely of the
signature of the indorser, — the order to pay being implied. In
either case indorsation is not merely a transfer of the bill or
note; it is likewise an obligation to indemnify the indorsee or
holder, if the bill should not be paid. Bills of lading are the
only instruments, besides bills and promissory notes, which pass
by indorsation.1 All other instruments, even in re mercatoria, require
a regular assignation.
1509. Indorsation, like acceptance, may be by procuration, or
by a partner for a firm, and it may also be conditional or restrictive.

1510. Indorsement may be either before or after the term of
payment; but after protest and diligence the bill cannot be
carried by indorsement, but requires assignation. It is provided
by the Mercantile Law Amendment Act,2 that in the case
of indorsation, after the period of payment, the indorsee shall be
deemed to have taken the bill or note subject to all objections
or exceptions to which it was subject in the hands of the indorser.

1511. Bank Notes are promissory notes payable to a certain
person or "bearer," and pass without indorsement.
1512. The notes of the Bank of England supply the place
of coin by statutory enactment, and must be accepted; whilst
those of private and joint-stock banks do so only by public
consent, and may consequently be declined by an individual at
pleasure.
1513. The issue of bank notes is regulated in England by 7
and 8 Vict., c. 32 (1844); and in Scotland by 8 and 9 Vict., c.
38 (1845).
1514. Alterations and Erasures in material parts, without consent
of parties, are fatal. Alteration of the date, and of the
Ante, Sale, pp. 192, 193. 2 19 and 20 Vict., c. 60, sec. 16.
term of payment, have been held to annul the bill;1 and the
same effect will follow from an alteration of the sum, or the substitution
of another drawer or indorser.
1515. But where the alteration is not on an essential part of
the instrument, or is merely to correct a mistake, and in furtherance
of the original intention, — e. g., the addition of "to order"
where omitted, — it will not invalidate the bill.
1516. In relation to all these questions, it is important to remember
that, though a fatal objection may be taken to the bill,
the debt, where such exists, may be proved by evidence of goods
furnished or money paid.
1517. By 21 and 22 Vict., c. 47, "to amend the law of false
pretences," it is enacted, that any one obtaining the signature of
another to a bill, promissory note, or security, by any false pretence,
with intent to cheat, shall be guilty of a misdemeanour,
and, on conviction, may be sentenced to penal servitude for four
years, or an arbitrary punishment by fine or imprisonment, or both.
1518. Stamp. — All bills and promissory notes are liable to
stamp duty; and, besides the penalty for breach of the Act, it is
declared, that it shall not be in the power of the commissioners
afterwards to supply the defect. Neither will the consent of
parties suffice.
1519. Inland bills payable on demand, and all drafts, orders,2
and cheques on bankers,3 with the exception of a draft payable
to self, or in the form "Debit my account," and delivered by the
drawer in person, are now liable to a duty of one penny.
1520. Inland bills and promissory notes payable otherwise
than to bearer on demand, and foreign bills, pay a rateable duty;
and unless they are impressed with the proper stamp, they possess
none of the privileges of such instruments. Bills of lading pay 6d.
1521. The stamp on foreign bills applies only to bills made
1 Bell's Corn., vol. i., p.318. 3 16 and 17 Vict., c. 59.
3 21 and 22 Vict., c. 20.
in Great Britain. If drawn abroad they are not liable to the
British Stamp Laws, and our Courts will not enforce those of
foreign countries. But if such bills are negotiated in Britain,
they are liable to the British stamp duties, which may be affixed
any time before negotiation, a peculiar stamp being provided for
the purpose.
1522. Accommodation Bills. — Besides the proper use of bills
and notes, in transmitting money, and bringing into a discountable
form the price of goods sold on credit, so that the debt
may at once be used as money, there is another purpose to which
they have been applied, — viz., to raise money by discounting at
a banker's, bill-broker's, or elsewhere, a bill to which a friend
who is not a debtor lends his credit. Such bills are called accommodation
or wind bills.
1523. The understanding is, that the person for whose accommodation
the bill was made, is to provide his friend with the
means of paying it, or is himself to retire it; and if he acts in
accordance with this understanding the transaction is closed.
Such bills are simply a "loan of credit."1 This mode of raising
money is frequently done in consideration of a commission; and
not unfrequently by means of a course of bills, drawn and redrawn
at enormous expense. Persons requiring this sort of accommodation
usually agree with others in the same position to
draw on each other, or they exchange acceptances, or what Mr
Bell characterises as the "more dangerous instruments called
skeleton bills."2 Sometimes several houses are engaged in this
traffic; and the creation of fictitious firms, the use of feigned
names, the careful avoidance of the same train of discounts, are
some of the many discreditable expedients to which it too frequently
leads.
1524. It was held at one time, both here and in England, that
1 Burton's Manual of Private Law, p, 327.
2 Blank bills, already described, ante, p. 269.
where a bill was accepted for the accommodation of the drawer,
he was the primary debtor, and the acceptor was creditor of the
drawer on payment of the bill. But this view has been entirely
abandoned, and the bill-holder, whether ignorant of the original
nature of the transaction or not, is entitled to hold the parties
bound according as their signatures appear on the bill.
1525. The same rule applies to indorsers in an accommodation
bill as to the acceptor; and the bill-holder does not lose his recourse
against them, more than against the drawer by giving time
to the acceptor.1
1526. Presentment for Acceptance has a double purpose — to
satisfy the holder whether or not he is to rely on the payment
of the debt; and, in case of non-acceptance, to preserve recourse
against the drawer and indorsers.
1527. Where the bill is drawn payable at a certain day, it is
enough if it be presented on that day.
1528. Where it is payable within a limited time after sight,
recourse will be lost if it be not presented within the time which
the custom of merchants in the particular line of trade has fixed
as reasonable.
1529. Presentment must be made within business hours, at
the drawer's place of business or residence. If he cannot be
found, the bill must be held as dishonoured.
1530. Presentment for Payment must be either on the day of
payment, or, if there be no day, within a reasonable time after
receipt of the bill, and by a person holding right to the bill, or
entitled to give a receipt for the money; otherwise there can be
no legal protest, and recourse is lost.
1531. Days of grace are a certain indulgence granted in addition
to the terms specified. The days differ in different countries.
In Great Britain three days are allowed, exclusive of the
day on which the bill falls due. When the last day falls on a
1 Bell's Comment., vol. i., p. 321.
Sunday or public holiday, payment must be made on the preceding
day.
1532. No days of grace are allowed on a bill payable on
demand.
1533. It has not been judicially settled in Scotland whether days
of grace are allowed or not on a bill at sight.1 Mr Bell says that
in England and on the Continent they seem to be allowed; but
the point in England seems still undecided, probably because the
usage of merchants is fixed. That usage seems to be in favour
of their allowance.2
1534. It has been held a sufficient presentment at a bank, if a
person is there and refuses payment, though after bank hours.
1535. Protest. — The object of protest is to establish, by a
semi-judicial procedure, the fact of the acceptor's failure to
accept or to pay the bill. It is performed with us by a notary
public, who, before two witnesses, marks the bill with his initials,
the date, and his charge. This proceeding, which is called
"noting," is proved by an instrument afterwards written on
stamped paper. Protest is in Scotland the sole foundation of
summary execution; and in other countries, when performed in
the form and by the officers which the law requires, it is the
proper ground of the claim or action of recourse.
1536. Protests for non-acceptance may be at the instance of
any one having the custody of the bill; but protest for non-payment
must be at the instance of the bill-holder, or of one having
authority from him.
1537. By 19 and 20 Vict., c. 60, it is provided that in inland
bills of exchange and promissory notes, notarial protest shall not
be required to preserve recourse against the drawer or indorser,
but it shall be sufficient to prove presentment and dishonour to
the effect of preserving recourse by other competent evidence,
1 Bell's Com., vol. i., p. 325.
2 Byles on the Law of Bills of Exchange. 7th Edition, p. 177.
either written or parole; but that this provision shall not affect the
necessity for a notarial protest to entitle the holder of any bill
or note to proceed with summary diligence thereon (sec. 13).
1538. Notice is indispensable in all cases to preserve recourse
against the drawer and the prior indorsers.
1539. No particular form is requisite. Whatever infers
knowledge, both of the dishonour and of the resolution to claim
recourse, so as to enable the drawer or indorser to take measures
of precaution against the acceptor or others, is equivalent to
notice.
1540. The notice, however, must be such as to identify the
bill, and to inform the party to whom it is given of the protest,
a copy of which ought to accompany it. If the notice is put
into the post-office and properly addressed it is sufficient, though
said not to have been received. Verbal notice, if clear, will
suffice.
1541. Notice in the ease of foreign bills must be within such
time as is required by the usage and custom of merchants.
Every delay which can fairly be ascribed to neglect or omission,
and is not justified by the circumstances of the case, will be fatal
to the bill-holder's claim for recourse.
1542. In inland bills and notes the notice requisite was regulated
by statute. In Scotland, by 12 Geo. III., c. 72, sec. 41,
notice of dishonour was required to be given within fourteen
days after the protest is taken; and the same time is fixed in
England by still older statutes. But by the Mercantile Law
Amendment Act, the practice in inland bills seems to be regulated
in accordance with that of foreign bills, which depends wholly on
usage. Sec. 14 provides that notice of dishonour of inland bills
and promissory notes, in order to entitle the holder to recourse,
shall be given "in the same manner and within the same time as
is required in the case of foreign bills by the law of Scotland."1
1 19 and 20 Wet., c. 60.
1543. Notice must be given by the bill-holder himself, or by
one empowered to act as his agent; and it ought to be given
to every one against whom the holder means to claim recourse.
1544. He may, however, select any indorser, who will of
course be entitled to his remedy against the others or the drawer.
1545. If he restricts his demand to an intermediate indorser,
he will discharge the subsequent indorsers, "and also the prior,
including the drawer, if that intermediate indorser do not give
notice."1
1546. Where a bill or note has been lost, or stolen, or fraudulently
obtained, the holder, doing diligence thereon, is bound to
prove that value was given him, but such proof may be by parole
evidence.2
1547. Diligence. — Bills and notes, like all other binding documents
of debt, may be enforced by an ordinary action before a
competent court. But when so executed as to be entitled to the
peculiar privileges which belong to them, execution may proceed
upon them without action, — registration in the books of a court
being held equivalent to a decree obtained and recorded.
1548. Prescription. — It is a good defence against the holder of
a bill, that he has not adopted measures to enforce payment
within six years from the term at which payment was due, — that
is to say, the last day of grace, where there is such allowance.
1549. Bank notes are exempted from prescription.3
1550. As to the general rules of prescription see ante, p. 219.
1551. The prescription of bills differs from other prescriptions
in this, that it is not interrupted by a marking of partial
payment or of payment of interest within the six years.
1 Bell's Com., vol. i., p. 333. 2 19 and 20 Vict., c. 60, sec. 15.
3 12 Geo. III., c. 72, sec. 39.
CHAPTER IX.
PARTNERSHIP.
1552. The contract of partnership has its origin in the knowledge,
on the part of individuals, that the resources, mental and
material, which they severally possess, can be employed with
greater profit in combination than separately. By the community,
on the other hand, this contract is regulated and protected
from the knowledge that it is positively indispensable to the prosecution
of all extensive, costly, and hazardous undertakings not
directly upheld by the state. The aversion to state interference,
peculiar to Englishmen, has led them to bestow special attention
on every form of joint enterprise amongst private persons; and,
in Great Britain and America, the law of partnership, and more
particularly of joint-stock companies, has, in some respects,
attained to greater maturity than either in ancient Rome1 or in
modern continental states.2 It may be doubted whether we have
now anything so good as the Société en Commandite of the
French and our own earlier law.
1553. The subject divides itself into two branches — Partnership,
including joint adventure; and joint-stock companies, private
and public.
1554. Partnership Proper. — The invariable characteristics of
partnership proper are — 1. The voluntary association of two or
more persons for the acquisition of gain. 2. A contribution by
each partner of a share of money, goods, credit, skill, industry,
1 See Lord-Chancellor Brougham in Thomson v. Campbell's Trustees, Feb.
14, 1831, W. and S., vol. v., p. 25.
2 As to the advantages of the continental law of joint-stock companies, see
infra, p. 288.
or other means available for the common purpose. 3. Interest
on the part of each partner in the profits and losses of the concern.
4. A power in each partner to bind the company in the
line of its trade. 5. A guarantee to third parties of all the
engagements undertaken in the social name, to the full extent of
the individual means of each partner.
1555. Avowed and Anonymous Partnership. — The first is carried
on and known by a firm or partnership name; the latter is
managed ostensibly by one individual, who is the representative
of secret or dormant partners. In the latter case, as in the
former, all the partners are liable for the engagements of the
company. It will constitute liability on the part of an individual
if he allows his name to be used on bills of parcels or invoices, or
to remain over the door. But if he has taken the precautions to
prevent its use, commonly adopted by merchants, he will be freed
from liability though he has not taken any judicial step for that
purpose.1
1556. General or Special Partnership. — Whatever may be the
private agreement between the partners, they will all be held,
with regard to strangers, as partners in the general trade unless
positive notice is given to the contrary. The whole stock of the
company is vested in the partners in trust, first, for payment of
the company's creditors, — and, second, for division among the
partners according to their respective shares.
1557. Implied Mandate. — Whatever may be the nature of the
private contract, each partner is presumed to hold a mandate
to bind the society by bill or mercantile document; and
even a fraud committed in the line of trade will be binding, to
the effect of rendering the company liable in reparation of the
consequences.2
1558. In written contracts there is generally a limitation of
the power of signing the firm. But whatever effect that limita1
Bell's Com., vol. ii., p. 213. 2 Ibid, vol. i., p. 218.
tion may have amongst the partners, it has no effect in saving
the company or the partners from responsibility to third parties
ignorant of its existence.
1559. Joint Responsibility. — The company must be called in
the first instance, and the debt constituted against it; it being
only in the event of its failing to pay that the partners as individuals
can be called on. The partners, as private persons, are
thus guarantees for the company, not proper or principal debtors;
yet a decree against, or bill by, a company is a warrant for summary
diligence against any partner.1 The responsibility of the
partners in relation to each other is regulated by their contract,
express or implied.
1560. A private mercantile firm may hold a lease, but it cannot
hold feudally as a vassal.
1561. From the trust reposed by the partners in each other, a
delectus personæ is implied, and it is therefore held that no new
partner can be adopted without the consent of those already
in the firm. Hence heirs, assignees, and creditors are excluded,
unless it be otherwise stipulated or necessarily implied, as, for
example, from the long duration of the company.
1562. Even where the parties have stipulated that their heirs
or assignees shall be adopted in their stead, it would appear that
the partners of a private company might object, on cause shown,
to the partner proposed, and that the power of assigning or
selling is qualified to that extent.
1563. Constitution of the Contract. — Partnership being constituted
by consent, its existence may be proved by any means which
the law of Scotland admits as proof of consent. It may thus be
established either — 1. By a regularly tested instrument; or, 2. a
less formal writing, e.g. letters exchanged, minutes, articles subscribed
by initials and afterwards acted upon, articles written in
1 See Taylor on difference between English and Scotch Law of Contracts,
p. 142.
a ledger or other trade book; 3. by express verbal agreement; or
4. by facts and circumstances which may be proved by the parole
evidence of the servants or customers of the company.
1564. Where the respective shares of the partners are left
doubtful in the contract, the presumption is for equality of rights
and responsibility. But this is a presumption not of law but of
fact, which may therefore be overcome by evidence, or by indications
of a different rule having been agreed to. The question,
what division would be fairly proportioned to the contributions
of the parties, will in this case be sent to a jury.1
1565. One person cannot make a partnership, but he may be
a member of several partnerships; and one company may be a
partner of another company. In this case the creditors of the
united company are preferable on the stock of that company to
the creditors of the company entering it as partners.2
1566. It may be stipulated that a partner is to share in the
profits without sharing in the loss; a provision which of course
will affect only the relations of the partners amongst themselves,
and will not exempt the individual so favoured from the claims
of the creditors of the company. A partner is not entitled to
conduct a business which gives him an interest adverse to that of
the partnership.3
1567. Duties of Partners. — A partner is bound to give his personal
attention and services in the company's affairs without recompense,
unless it be otherwise stipulated, and this even in
winding them up after dissolution. He is bound to obey such
calls as may be necessary to meet the losses and exigencies of the
company.
1568. Duration and Dissolution. — The duration of the contract
may be fixed either expressly or by implication. Where such is the
1 Thomson v. Campbell's Trustees, Feb. 14, 1831, 5 W. and S., p. 16; and
Dig. xvii. 2, 29.
2 Bell's Com, vol. i., p. 211. 3 Collyer, p. 100.
case, it can be prematurely dissolved only on cause shown, or by a
majority, though even then, if opposed by the minority, the
majority must prove that their grounds are rational and fair.
1569. If no term be fixed, it will endure till dissolved at the will
of the parties. Any partner may dissolve the company; but, in
doing so, a fair and equitable discretion must be observed, as no
one will be allowed to dissolve simply to gratify his own feelings,
or promote his interests to the prejudice of the other partners.1
1570. It has been fixed both here and in England that the
withdrawal of one partner dissolves the concern, and that the other
partners cannot proceed with the contract even if they should be
willing to do so. This is in accordance with the rule of the civil
law, "dissociamur renunciatione."2 The contract may be renewed
by tacit consent, but not to the effect of binding the partners to
a renewal of the original term, but only for an indefinite period
to be terminated at pleasure.
1571. Notice of an intention to dissolve is not held to be necessary,
as the reason for the step may be a suspicion that some
of the partners intend to abuse their power, and notice would
increase the risk.
1572. The Court, on dissolution, will, if necessary, appoint a
neutral person to wind up the affairs.
1573. Death. — Partnership is dissolved by the death of a
partner, even although a definite term of duration not yet expired
has been fixed. Special stipulation alone can obviate this
consequence.
1574. Insolvency and Bankruptcy. — Insolvency of a partner
alone does not dissolve the concern, but sequestration, by which
his whole rights are transferred to his creditors, does; and the
same effect will follow from a private trust-deed in favour of
creditors.3
1 3 Erskine, 3, 26. 2 Bell's Com., i., p 220, and cases cited.
3 Bell's Corn., i., p. 222.
1575. Incapacity and Misconduct. — Total incapacity, as from
insanity, more particularly if likely to be permanent, and misconduct,
if of such a kind as is likely to prove ruinous to all concerned
— as, for example, where the partner of a gunpowder manufactory
has contracted uncontrollable habits of intoxication —
will clearly furnish the other partners with grounds of dissolution.
The minor shades of incapacity and misconduct raise points of
infinite difficulty. The nearest approximation to a rule, says Mr
Bell, is, that "a remedy and relief will be given only where the
circumstances amount to a total and important failure in those
essential points on which the success of the partnership depends."
1576. Marriage of a female partner is a change so important
that it will form a ground of dissolution.
1577. Change of Partners. — A partnership is not necessarily
dissolved by the adoption of new or the dropping out of old
partners, if the change be made of consent, or by virtue of a provision
for that purpose in the contract. In a question with a
public company, though not chartered, a bond of suretyship,
credit, etc., would be held as made to the company under all its
changes of administration;1 but such would scarcely be the case
if the number of partners was small, as such changes could not
be presumed to have been in the contemplation of the contracting
parties ; knowledge of the stipulation would then require to
be proved to exist on the part of the person bound.2
1578. Dissolution in Relation to Third Parties. — No dissolution,
whether by agreement, death, or bankruptcy, will discharge any
one of the partners or his representatives from responsibility
already incurred to third parties. Even where the retiring
partner has paid to the rest as much as will meet the whole
debts, it will not act as a discharge of his liability.
1579. Notice. — To third parties notice is requisite, even
where the partnership has reached its natural term; for the
1 Bell's Com., vol. i., p. 224; Shaw's Edition. 2 Bell's Com., i., p. 224.
public cannot be supposed to be acquainted with the terms of
the contract.
1580. In fixing what constitutes notice, it is necessary to distinguish
between customers of the company and strangers.
1581. (1.) Customers. — Intimation in writing, traced to the
possession of the customer or to the post-office, with a proper
address, is generally requisite. But an obvious change of firm
will be held to be notice; and so, also, the alteration of the
cheques or notes of a banking house, or of invoices, is good
notice to creditors using them.
1582. A Gazette notice alone, or accompanied by advertisements
in newspapers, is not sufficient notice to customers.
1583. (2.) Strangers. — As it is impossible to give special
notice to all the world, the form of notice last mentioned, or any
other fair and public intimation, will suffice as warning to those
who have had no previous dealings with the company. A
Gazette notice alone will not be sufficient, though by statute
it is good notice of bankruptcy. Neither will newspaper advertisements
suffice without the Gazette, which is a sort of record to
which merchants and tradesmen commonly refer.
1584. Even in anonymous partnership, if known to any one
person, publication is necessary.
1585. Notice of Death. — The publication of a partner's death,
in the ordinary obituary in the newspapers, is sufficient to save
his representatives from further liabilities ; and it has even been
said that, " death being a public fact, all men are bound to
know it.1
1586. Winding Up. — Partnership subsists with reference to
past, after it is dissolved with reference to future transactions.
It thus continues for the purpose of winding up, levying and paying
debts, and calling on the partners to fulfil their engagements to
1 Christie v. The Royal Bank, April 6, 1841, Ross's Leading Cases, vol. iii.,
p. 671.
the public and to each other. Where there is no special agreement,
the surviving partners have the power of winding up and
the right of action for debts due to the company. If acts
beyond the proper object of winding up are attempted, or the
representatives of deceased partners are not satisfied with the
credit or fidelity of the survivors, or if all the partners are dead,
the Court will, on the application of a proper party, either interdict
those who remain, or require caution, or appoint a neutral
person to wind up the concern.
1587. If the company, during its subsistence as such, have
ordered goods, which are delivered to the partners entrusted
with the duty of winding up after dissolution, all the partners
are liable for the price.
1588. Rules of Accounting. — The moment of dissolution is the
moment of division of profit and loss, where that is practicable
and any partner may insist on a sale as the best criterion of the
value of the property. The good-will of the business forms part
of the common stock.
1589. The debts being paid, each partner is allowed whatever
he has advanced to the partnership, and charged with what
he has failed to bring in, or has drawn out, beyond his just proportion;
and the residue is then divided in accordance with the
terms of the agreement, or equally, if there be no express agreement.

1590. Where the retirement of partners is contemplated, it is
common to stipulate that their interests shall be regulated by
the preceding balance, and to provide that the books shall be
balanced at regular intervals. In practice this is often neglected
or found to be impracticable, and questions of great difficulty
arise in consequence. If the company have neglected to make
a regular balance, the stipulation in question will not entitle
either party to go back, perhaps for years, to what may
actually have been the preceding balance. In such a case the
Court of Session will order a balance to be struck as at the preceding
term1
1591. Diligence against a Bankrupt Company. — The creditors
of a company may proceed against the common stock by all the
diligence of the law; and also against the separate estates and
persons of the partners, as guarantees bound each for the whole
amount of the company's debts.
1592. There are two modes of extricating the affairs of a bankrupt
company:—Trust-deed, and Sequestration.
1593. There is nothing peculiar in these proceedings which
does not obviously arise out of the difference between a company
and an individual, and reference is therefore made to the article
on Bankruptcy.
1594. Where the partners of a company are bankrupt as well
as the company itself, claims may be entered by the company's
creditors both against the estate of the company and against
the separate estates of the partners. To the estate of the company
they have a right, to the entire exclusion of the separate
creditors of the partners. These claims, both as to voting and
ranking, are for their whole debts, -undiminished by any right of
claiming on the separate estates of the partners.
1595. The trustee for the creditors of the company is entitled
to be ranked in full on the estate of a partner, for debts due to
the company, like an ordinary creditor.
1596. Joint trade, or joint adventure, is a partnership limited
to one particular voyage, adventure, or speculation. It may be
entered into either by individuals or companies, or by individuals
with companies, or companies with companies. To the extent
to which it reaches, it differs not from partnership at common
law. There is no responsibility beyond the limited agreement
of the parties, but to this extent all the partners are responsible
singuli in solidum for the engagements of the active partners.
1 Bell's Com., vol. i., p. 231, and cases.
1597. Joint ownership is not even a limited partnership, for
there is here no agreement to share the profit and loss. It
generally occurs where a purchase is made by several with a
view to ultimate division, where a ship is the property of several
pro indiviso proprietors, or where a succession has opened to
several persons in common.
1598. Joint-Stock Companies. — The leading distinction, independent
of statute, between a joint-stock company and a proper
partnership, consists in the shares of the former being transferable
to purchasers, heirs, or creditors, without the consent of the
remaining shareholders; whereas, in partnership, the adoption
of a new partner is either forbidden, or allowed only with the
consent of the whole members of the existing firm. The ground
of this distinction is, that the affairs of a joint-stock company,
being managed not by the partners as such, but by directors
whom they select, there is no necessity for their reserving to
themselves a choice of persons. The success of the enterprise,
and the safety of the shareholders as a body, do not demand intelligence,
industry, or even probity on the part of each of them.
Money is all that they are called upon to contribute, and the
money of one man is as good as that of another. All the shareholders,
it is true, have an interest in the selection of prudent
directors, and consequently in the character of the body by
which they are selected; but this interest is not sufficient to warrant
them in incurring the loss which they would certainly
sustain by preventing the unrestricted sale of their shares.
1599. There is another very important distinction which,
under certain regulations and restrictions, is now admitted by
statute, but which the common law of Scotland, following that
of France,1 and indeed of continental Europe generally, is believed
at one time to have recognised, viz., — that the shareholders in
1 In the Société en Commandite, a distinction is made between the directors or
managers of the company and the shareholders; the former incurring an unjoint-stock
companies should not be responsible beyond the
amount of their shares. "The very meaning of confining the
trade to a joint-stock," it was said in the case of the Arran
Fishing Company, "is that each should be liable for what he
subscribes and no further;" and the equitable principle on which
the decision was founded was, that in dealing with such companies
the public ought to rely on the stock actually subscribed,
and not on the uncertain solvency or credit of the individual
partners. Had this principle been steadily adhered to, the
public would have become aware that, apart from positive stipulation,
they had no guarantee beyond the stock, and false confidence
and imprudent speculation would have been discouraged
more effectually, and in a manner far more in accordance with
our free institutions, than by such directly preventive measures
as the "Bubble Act."2
1600. But though the object which has now been imperfectly
attained by legislation was thus within the reach of the common
law of Scotland, the principle on which it depended was not followed
out. In the well-known case of the Douglas Bank,3 all the
partners were held to be responsible as individuals, notwithstanding
that the bank, though trading under the personal firm
of Douglas, Heron, and Co., could not possibly be viewed as a
partnership proper. The whole subject was thus again thrown
loose, and the consequence was the introduction of the English
doctrines, first by implication, and latterly by express enactment.
limited, the latter a limited responsibility ; an arrangement which offers, perhaps,
the best solution of a very difficult question. — Code de Commerce, liv.
i., tit. iii., secs. 23-28.
1 See Report of Stevenson v. McNair, from F.C., in Morison's Diet., p. 14560
and 14667. Sea also Bell's Com., Shaw's edition, vol. i., p. 239, and Story on
Partnership, sec. 165, p. 270, where the above case is quoted as fixing the law
of Scotland!
2 Geo I., c. 19 (1719), "for restraining several extravagant and unwarrantable
practices mentioned therein."
3 Douglas, Heron, and Co., v. Hair, July 24, 1778, M. 14605.
1601. By 19 and 20 Vict., c. 47, sec. 61, it is provided that
the existing shareholders shall be liable to contribute to the assets
of the company to an amount sufficient to pay the debts of the
company, and costs, charges, and expenses of winding up, unless
the company is limited under the statute; in which case no contribution
shall be required from any shareholder exceeding the amount, if
any, unpaid in the shares held by him.
1602. The provision (sec. 2), that this Act shall not apply to
persons associated for the purpose of banking or insurance,
though repealed in other respects by 20 and 21 Vict., c. 49, sec. 3,
was retained to the effect of excluding banking companies from
the privilege of being registered as limited. But this restriction
has since been removed by 21 and 22 Vict., c. 91 (2d August
1858), and joint-stock banks may now be formed on the principle
of limited liability. The only special condition attached to the privilege
in their case is, that the shareholders shall be subject to unlimited
liability in respect of notes issued in the United Kingdom.
1603. As regards insurance offices, it is provided, by 20 and
21 Vict., c. 80, that the Joint-Stock Companies Acts of 1856-7
shall not be deemed to repeal 7 and 8 Vict., c. 110. Insurance
companies are, consequently, still excluded from the privilege
of forming themselves on the principle of limited liability.
1604. The present position of shareholders at common law is
thus the reverse of what it was held to be in the case above
mentioned; and, in place of being free from liability beyond
their shares unless specially bound, they are liable to the full
extent of the debts of the concern, unless exempted either by a
special Act of Parliament, as in the case of the Bank of Scotland,
or by availing themselves of the provisions of the recent
Joint-Stock Companies Acts.
1605. Royal Charter.—"It has sometimes been doubted," says
Mr Bell,1 "whether this privilege can be granted by royal
1 Com., vol. i., p. 240.
charter; but the Crown may create fraternities or companies
for trade, and limited responsibility is not a privilege inconsistent
with the common law, or with the rights of other
subjects."
1606. It is believed, however, that in point of fact none of
the chartered banks do possess this privilege. In the charters
of the Commercial and National Banks it is expressly declared
that the liability shall continue to be unlimited; whilst the
charter of the Royal Bank is silent on the point. Such charters,
however, unquestionably confer the ordinary privileges of municipal
and other incorporations, and banks possessing them are
capable of holding heritable property, suing and being sued,
granting and receiving money, etc., by their corporate names,
and through their office-bearers, without mention of the individual
shareholders. They are, in short, distinct legal individuals.
1607. Formerly the power of the Crown to grant letters
patent was confined to twenty years; but by 19 Vict., c. 3, it is
enacted that it shall be lawful to grant them to any company of
more than six persons in Scotland, who were carrying on the
business of banking before 9th August 1843, either for a term
of years or in perpetuity.
1608. Since the passing of 7 Geo. IV., c. 67, even private
joint-stock banking companies have possessed the privilege of
suing and being sued in the name of their manager or other
principal officer, on condition of giving up to the Stamp Office,
now the Joint-Stock Companies' Registry Office,1 annual returns,
which must be corrected during the year, of the name
of the firm, and of the names of the individual members and
manager.
1609. Joint-Stock Companies Acts. — The "Principal Act," as
it is denominated by the other statutes on the subject of jointstock
companies, is 19 and 20 Vict., c. 47 (14th July 1856).
1 Established by 7 and 8 Vict., c. 110, sec. 19.
The following are its leading provisions, as amended by more
recent Acts :1—
1610. Seven or more persons associated for any lawful purpose,
may, by subscribing their names to a memorandum of
association, and complying with the requirements of the Act as
regards registration, form themselves into an incorporated company,
either with or without limited liability (sec. 3).
1611. If more than twenty persons shall carry on trade without
registering themselves under the Principal Act, they shall be
liable to penalties, mentioned in 20 and 21 Vict., c. 14, sec. 3,
unless they are otherwise legally incorporated.
1612. The memorandum must contain the name of the company,
the place of business, the object of the trade, the amount
of capital, the number of shares, and the liability of the shareholders,
whether limited or unlimited.
1613. In the case of a company formed with limited liability
(called a limited company), the word "Limited" shall be the
last word in the name of the company (sec. 5).
1614. The memorandum shall be delivered to the Registrar
of Joint-Stock Companies (sec. 13), and, when registered, shall
bind the company and shareholders to the same extent as if
each had subscribed his name or affixed his seal to it (sec. 7).
1615. The memorandum may be accompanied by articles of
association prescribing the regulations of the company, and
1 The following statutes have since been passed :—
1st, 20 and 21 Vict., c. 14, to Amend the Joint-Stock Companies Act of 1856
(13th July 18.57).
2d, 20 and 21 Vict., c. 80, to Amend the Joint-Stock Companies Act of 1856
(25th August 1857).
3d, 20 and 21 Vict., c. 49, to Amend the Law relating to Banking Companies
(17th August 1857).
4th, 21 and 22 Vict., c. 60, to Amend the Joint-Stock Companies Acts, 1856
and 1857, and the Joint Stock Banking Companies Act, 1857 (23d July 1858).
5th, 21 and 22 Vict., c. 91, to enable Joint-Stock Banking Companies to be
formed on the principle of Limited Liability (2d August 1858).
these, when registered, shall be binding on the shareholders;
but if no such regulations are prescribed, the regulations contained
in a schedule annexed to the Act shall, so far as applicable,
be the regulations of the company (sec. 10).
1616. The Board of Trade may appoint registrars and other
officers, and determine the places at which their offices shall
be established (sec. 106).
1617. After registration, the subscribers of the memorandum,
and such persons as shall afterwards become shareholders, are a
body corporate by the name prescribed in the memorandum,
having a perpetual succession, a common seal, and power to hold
lands.
1618. Existing companies may register themselves, subject to
this proviso, that no company shall be registered as a limited
company unless either a certificate of complete registration, with
limited liability, under the "Limited Liability Act, 1855" (which
applied to England only), has been obtained, or an assent to its
being so registered has been given by three-fourths in number
and value of its shareholders, at a general meeting called for the
purpose. Any existing company may, for the purpose of registration,
change its name, by adding the word "limited," or do
any other act that may be necessary (sec. 114). Such registration
does not affect the rights of existing creditors (sec. 116).
1619. The list of shareholders and other documents required
by the Act to be delivered to the registrar, must be verified by
a declaration of the directors of the company, or any two of
them, or of any two other principal officers of the company.
1620. These privileges are extended to banking companies by
21 and 22 Viet., e. 91, secs. 1 and 2, and they may now be
registered as limited companies under the Joint-Stock Banking
Companies Act of 1857, and the Acts incorporated therewith.
1621. But, thirty days before obtaining a certificate of registration
with limited liability, notice must be given to all the
customers of the bank; and, in default of such notice, liability
continues unlimited to such customers.
1622. Upon compliance with the requirements of the Act the
registrar certifies that the company is incorporated, and in the
case of a limited company, that it is limited; and the company
may then issue certificates of shares to such number and amount
as may be prescribed by the memorandum, but not to any greater
number or amount. The shares so issued shall be personal
(moveable) estate; although a written acceptance be necessary
to their transference.
1623. Every company shall keep a list of the names and designations
of the shareholders, of the shares held by each, of the
amount paid by each on his shares, and of the date at which
each became or ceased to be a shareholder (sec. 16).
1624. The register shall be kept at the office of the company,
and shall be open during business hours to the inspection of any
shareholder, gratis, or of any other person on payment of one
shilling; and a copy of the whole or part of the register may be
required on payment of sixpence for every hundred words
(sec. 23).
1625. In the case of transference, the transferee shall remain
holder of the share until the name of the transferee is entered in
the register book.
1626. Any limited company may, by special resolution, convert
into stock any shares which have been fully paid up, on notice
specifying the shares so converted being given to the registrar
(20 and 21 Viet., c. 14, sec. 5, 6).
1627. An ordinary general meeting of the company shall be
held once at the least in every year (sec. 23).
1628. The directors may, when they think fit, and they shall
upon a requisition in writing by any number of shareholders,
holding not less than one-fifth part of the shares of the company,
convene an extraordinary general meeting (Table B., 25).
1629. Quorum. — A quorum shall be ascertained thus:— if the
whole shareholders do not exceed ten, five shall be a quorum;
if they exceed ten, there shall be added one for every additional
five up to fifty, and one for every ten after fifty, with this limitation,
that no quorum shall exceed forty (Table B., 31).
1630. No business, except the declaration of a dividend, shall
be transacted at any meeting unless a quorum of the shareholders
be present at the commencement of the business.
1631. Votes of Shareholders. — Every shareholder shall have one
vote for every share up to ten, an additional vote for every five
shares beyond the first ten up to one hundred, and an additional
vote for every ten shares beyond the first hundred shares. Insane
persons and minors vote by their legal guardians (Table B., 38
and 39).
1632. Directors. — The first directors shall be selected and
their number determined by the subscribers of the memorandum
(Table B., 44).
1633. The office of director shall be vacated by the acceptance
of any other office or place of profit under the company,
by bankruptcy or insolvency, or by being concerned in any contract
with the company (Table B., 47).
1634. Calls. — The company may, from time to time, make such
calls on the shareholders in respect of monies unpaid of their
shares as they think fit. Should the shares be finally forfeited
for non-payment, the shareholder shall, notwithstanding, continue
liable to the company for all calls owing upon his shares at
the time of forfeiture (Table B., 15-19).
1635. Dividends. — The directors, with the sanction of the company
in general meeting, may declare a dividend to be paid to
the shareholders in proportion to their shares. No dividend
shall be payable except out of the profits arising from the business
of the company (Table B., 63 and 64).
1636. If the directors shall declare and pay any dividend when
the company is known by them to be insolvent, or any dividend
the payment of which would to their knowledge render it insolvent,
they shall be jointly and severally liable for the debts of
the company then existing, and for all that shall be hereafter
contracted, so long as they shall respectively continue in office:
But it is provided that the amount for which they shall be so
liable shall not exceed the amount of such dividend, and that, if
any of the directors shall be absent at the time of making the
dividend, or shall protest in writing, they shall be exempted from
liability (sec. 14).
1637. Before recommending a dividend, the directors may set
aside a reserved fund out of the profits of the company (Table
B., 65-68).
1638. Accounts. — A balance-sheet shall be made out in every
year, and laid before the general meeting of the company, containing
a summary of the property and liabilities of the company.
A printed copy of such balance-sheet shall, seven days previously
to such meeting, be delivered at or sent by post to the registered
address of every shareholder. The accounts shall be examined
and the correctness of the balance-sheet ascertained by one or
more auditor or auditors, to be elected by the general meeting.
They need not be shareholders, and must not be officers of the
company (Table B., 69-77).
1639. Upon the application of one-fifth in number and value
of the shareholders, the Board of Trade may appoint one or more
inspectors to examine into the affairs of the company, and to report
(sec 48). But all expenses of, and incidental to, such examination
shall be defrayed by the shareholders upon whose
application the inspectors were appointed (sec. 50).
1640. A general meeting may likewise appoint inspectors,
whose powers as to inquiring into the affairs of the company
shall be the same as if they had been appointed by the Board of
Trade (sec. 51).
1641. Winding up. — The affairs of companies registered under
the Act may be wound up either by the Court or voluntarily;
and the provisions as to winding up shall also apply to companies
under 7 and 8 Vict., c. 110, from and after the date at which
they have obtained registration under the Joint-Stock Act, but
not to any other companies (sec. 59).
1642. (1.) Winding up by the Court. — A company may be
wound up by the Court whenever a special resolution has been
passed in a general meeting requiring the company to be wound
up by the Court, or if it does not commence business within a
year from its incorporation, or suspends its business for a whole
year, or the shareholders are reduced to less than seven, or the
company is unable to pay its debts, or finally, if three-fourths of
the capital have been lost or become unavailable (sec. 67). By
20 and 21 Vict., c. 14, sec. 19, the Court is empowered to
adopt the proceedings already taken in a voluntary winding up,
and it may also direct that such voluntary winding up shall
continue under its own supervision. Additional provisions for
such cases are made by 21 and 22 Vict., c. 60.
1643. Official Liquidators. — For the purpose of conducting the
proceedings in winding up a company, and assisting the Court
therein, one or more persons shall be appointed by the Court as
liquidators. Where the voluntary winding up is continued under
its supervision, the Court may either appoint the voluntary
liquidators to be the official liquidators, or it may appoint other
or additional liquidators.
1644. Dissolution. — When the affairs of the company have been
completely wound up, the Court shall make an order declaring
the company dissolved from the date of the order.
1645. (2.) Voluntary Winding up. — A company may be wound
up voluntarily, 1st, if the period fixed for its duration has expired;
2d, on the occurrence of any event which it has been agreed
should involve a dissolution of the company; 3d, if the company
in a general meeting has passed a general resolution to the effect
that the company shall be wound up voluntarily. Such voluntary
winding up shall not prejudice the right of any creditor
to institute proceedings for the purpose of having the company
wound up by the Court (sec. 105).
1646. Liquidators may be appointed by a general meeting with
duties and powers corresponding to those of official liquidators
appointed by the Court. Voluntary liquidators are empowered
by 21 and 22 Vict., c. 60, sec. 14, to apply to the Court for aid,
either in determining questions, or enforcing calls.
1647. Criminal Prosecution of Directors, etc. — Where an order is
made for winding up a company compulsorily, or for the continuance
of a voluntary winding up, if it appear that any past or existing
director, manager, public officer, or member of such company
has been guilty of an offence in relation to the company for
which he is criminally responsible, the Court may, on the application
of any person interested in the winding up, or of its own
motion, direct the liquidators to institute and conduct a prosecution
for such offence, and order the costs to be paid out of the
assets of the company.
1648. And where the winding up is altogether voluntary, it
shall in the like circumstances be lawful for the liquidators, with
the previous sanction of the Court, to prosecute; and the expenses
shall be payable out of the assets of the company in priority to
all other liabilities: 21 and 22 Vict., c. 60, sects. 20 and 21.
1649. These provisions as to winding up now apply to joint-stock
companies, both limited and unlimited (21 and 22 Vict.,
c. 91, sec. 5).
Liability of former Shareholders.
1650. (1.) In non-limited companies, any person who has ceased
to be a shareholder within three years prior to the commencement
of the winding up, shall be deemed, for the purpose of contributing
to the liabilities, to be an existing shareholder, with this
exception, that he shall not be liable in respect of any debt contracted
after the time at which he ceased to be an actual shareholder
(sec. 62).
1651. (2.) In limited companies, any person who has ceased to
be a shareholder within one year prior to the commencement of
the winding up, shall be a shareholder for the same purposes.
CHAPTER X.
OF CAUTIONARY OBLIGATIONS.
1652. A cautionary obligation is a secondary engagement, by
which he who enters into it binds himself, failing the principal
obligant, to fulfil the primary obligation.
1653. Previous to the passing of the Mercantile Law Amendment
Act,1 it was customary to distinguish between proper and
improper cautionary. Cautionary proper was where the cautioner
was bound avowedly as such; improper cautionary was where both
cautioner and principal were bound as principals. According
to the present law, cautionary proper can exist only as the result
of positive stipulation, under the proviso attached to the 8th
section of the statute above referred to, which enacts that
"nothing herein contained shall prevent any cautioner from
stipulating, in the instrument of caution, that the creditor shall
be bound, before proceeding against him, to discuss and do diligence
against the principal debtor."
1654. Cautionary obligations are generally undertaken from
motives of friendship, and are consequently gratuitous; but it is
not uncommon for them to be entered into also in consideration
of a premium paid.
1 19 and 20 Vict., c. 60.
1655. The existence of a consideration has always been
optional in Scotland; and the rule of our law in this particular
has been adopted into that of England, by 19 and 20 Viet., c.
97, sec. 31
1656. Where a premium is stipulated, the contract becomes
an insurance of solvency or honesty; and associations have been
formed, both here and in England, for the purpose of undertaking
as a speculation to guarantee the good conduct of parties
employed as public or private officers.2
1657. The tendency of the decisions in the Courts, both here
and in England, of recent years, has been to require greater
strictness than formerly in the constitution of cautionary obligations;
and latterly the Legislature itself has stepped in with
the same object.
1658. By the Mercantile Law Amendment Act (1856),3 it is
enacted that all cautionary obligations, and all representations
and assurances, shall be in writing, and shall be subscribed by the
person undertaking or making them, or by some person duly
authorised by him or them, otherwise the same shall have no effect.
1659. A cautionary obligation may be dependent on a condition,
in which case it is not effectual unless the condition be
complied with.
1660. The cautioner is in general entitled to plead every
defence which was competent to the principal debtor; and the
extinction of the principal obligation discharges the accessory
one. Moreover, the discharge of one cautioner, though not consented
to by the rest, is a discharge to all.4
1661. Discussion. — Cautioners bound prior to the Mercantile
Law Amendment Act, 21st July 1856, are entitled to insist that
the creditor shall first call on the principal debtor, and in law
language discuss him; and that, even in the case of his failing to
1 Bell's Com., Shaw's Edition, vol. i., p. 268, note. 2 See infra, p. 305.
3 19 and 20 Viet., c. 60, sec. 6. 4 Mercantile Law Amendment Act, sec. 9.
satisfy the obligation in full, the creditor shall give him (the
cautioner) the benefit of such portion of it as he did discharge.
1662. Discussion imports not merely a demand for payment,
but enforcement of it, to the full extent which the circumstances
of the principal debtor admit of. Discussion will be held to have
taken place if the principal debtor has left the country, leaving
no effects behind him, or has become bankrupt.
1663. Cautioners bound subsequent to the date of the Mercantile
Law Amendment Act, have no right of discussion (sec.
8) unless expressly stipulated for.
1664. The cautioner is entitled to an assignation of the debt
and diligence, and on satisfying the creditor, comes into his
place, and may proceed as principal creditor.
1665. He may also take legal measures for his relief against
the possible consequences of the failing condition of the principal
debtor.
1666. The cautioner possesses a lien over any debt which he
owes to the principal debtor, and may retain it for his relief.
1667. Co-Cautioners are entitled to mutual relief, whether their
obligation be embodied in one or in several deeds.
1668. Where a co-cautioner seeks relief against the others, he
must communicate the benefit of any deduction or ease which
may have been allowed him in paying the debt, and also, in the
general case, of any security which he may hold over the estate
of the principal.
1669. Division. — Although co-cautioners are each ultimately
liable for the whole debt, they are liable only for their several
proportions so long as the others are solvent, provided they have
not expressly renounced that benefit.1 The law of division does
not seem to be affected by the Mercantile Law Amendment Act;
and it will therefore still be necessary, where there are more eautioners
than one, that all should be proceeded against.
1 Bell's Principles, sec. 267.
1670. If the creditor, without the cautioner's consent, discharge
the principal debtor, or any one cautioner, it is a discharge
to the other cautioners also; and the same is the case if
he accept a composition, thereby altering the cautioner's security
and increasing his risk. Cautioners for a firm are not bound
after any change of the firm, unless, by express stipulation, or by
necessary implication, it appear that he is bound notwithstanding
the change.1
1671. The neglect by the creditor of measures proper or
necessary for the common interest, will furnish the cautioner with
a defence against liability. In this way he may be freed by the
creditor's abandonment of diligence.
1672. But, on the other hand, the cautioners are bound to
look to the condition of the debtor. Even without paying up the
debt, which is always in their power, they may make use of inhibition,
adjudication, or arrestment of the debtor's effects in security,
and thus protect themselves against the consequences of his
impending insolvency.
1673. The cautioner is not freed by the creditor's negligence,
or by his merely forbearing to enforce payment, unless he agree
to "give time" to the debtor in the technical sense — that is to
say, beyond the limits of the original obligation, — and by virtue of
that agreement tie up the cautioner from the remedy he might
otherwise have had.
1674. Prescription. — Cautionary obligations prescribe in seven
years,2 by stat. 1695, c. 5. In order to have the benefit of the
Act, the cautioner must appear in the bond expressly as cantioner;
or, if lie appear as co-obligant, it is necessary that, at the
time of settling the transaction, the principal debtor's obligation
to relieve his co-obligant should be intimated to the creditor.
1675. This notice must be notarial or judicial, mere private
knowledge not being sufficient.
1 19 and 20 Viet., c. 60, sec. 7. 2 Ante, p. 222.
1676. Exceptions. — Cautioners ad factor præstanda have not the
benefit of the Act; nor judicial cautioners; nor cautioners in
marriage-contracts; or for the discharge of an office; or in a
bond of relief; or for the payment of a composition on bankruptcy.1
To this enumeration may be added the case in which
the term of payment is beyond the seven years from the date of
the bond; that in which a collateral obligation separate from the
principal's is undertaken,2 and where a letter of guarantee is
granted in a mercantile transaction.3 As a general rule, the
statute will not be extended to a state of matters not expressly
provided for. "Upon principle and authority," said LordChancellor
Cottenham, "the statute is to be strictly construed,
and its provisions not extended beyond the cases specified. . . .
There is no room for the administration of any equity under the
statute."4
1677. Cautioners for a Cash Credit. — In all mercantile communities,
bankers and capitalists have been in the habit of advancing
money to merchants and manufacturers on the security of their
friends, and thus enabling them to extend their transactions
beyond the limits of their own capital. But there is a peculiar
form of credit which the Scottish banks from the first have been
in use to grant, and by which it is believed that the trade of
Scotland has been greatly advanced.
1678. "A cash credit of this description," says Professor
Bell, "is an undertaking on the part of a bank to advance to an
individual, or to a partnership, on security, such sums of money
as may from time to time be required, not exceeding on the
whole a certain definite amount, to be repaid, and a continual
circulation kept up by the replacing in the bank of funds as they
come in."
1 Bell's Corn., vol. i., p. 279.
2 Wilson v. Tait, 21st July 1840. Robinson's Appeal Cases, vol. i., 137.
3 Ibid. 4 Wilson v. Tait, ut sup.
1679. The practice of the banks is to permit the person having
this species of floating transaction occasionally to exceed, to
a certain limited extent, the amount of his credit; the bank, of
course, in this case running the whole risk of the excess.
1680. The security for such a credit is a bond with cautioners,
usually two in number, for repayment on demand of the sums
advanced, with interest upon each issue from the day on which
it is made. Interest at a lower rate is paid on the sums deposited
in bank, the difference between the two being the banker's profit.
1681. Heritable security is sometimes given, though bankers
generally decline it on the ground that it cannot be made immediately
available.
1682. The obligation, when personal, is generally undertaken
by the principal and cautioners "conjunctly and severally," by
which means the bond is protected from the septennial prescription,
and the bank, in bonds dated prior to the Mercantile Law
Amendment Act, freed from the necessity of "discussing"1 the
principal before coming on the cautioners. In all cases occurring
subsequently to the passing of that Act (July 1856) the
benefit of discussion is taken away.2
1683. On payment by the cautioners, the bank must assign to
them whatever securities they hold from the principal.
1684. Termination of the Obligation. — The cautioners, by simple
notice to the bank, may free themselves from responsibility emerging
subsequent to the date of such notice; but unless this be
attended to, they and their representatives will remain indefinitely
liable.
1685. Cautioners for Agents, Officers, etc. — Cautionary obligations
are often undertaken in behalf of persons in situations
where the engagements and liabilities are prospective.
1686. In order that such an engagement may be binding, it is
indispensable that the nature and extent of the liability shall be
1 Ante, p. 300. 2 19 and 20 Vict., c. 60, sec. 8.
fairly disclosed to the cautioner. But while the cautioner must
not be exposed to the danger of any situation or transaction not
in his contemplation at entering into the contract, he is not entitled
to withdraw without giving due notice, and allowing
reasonable time for a new arrangement.
1687. It will depend on the expressions used in the bond
whether its effect is to be retrospective as well as prospective;
but the presumption will always be that it is prospective merely,
and very clear words will be necessary to make the cautioner
liable for past dealings.
1688. The creditor is bound to exercise a certain vigilance;
and he is not at liberty to sanction any departure from the terms
of the contract, or from the fair line of employment, or any
material change in the arrangements which may prejudice the
cautioner, without disclosing it.
1689. A cautioner has thus been freed from responsibility
for a factor on an estate where the creditor neglected to insist
for an annual settlement of accounts, which was stipulated for as
a condition of the engagement;1 and many similar instances have
occurred.2 But mere neglect, unless very gross, or partaking of
a fraudulent character, will not relieve the cautioner.
1690. The principal object of the associations already mentioned
is to guarantee the integrity of managers, clerks, collectors,
receivers, and the like.
1691. As regards Government servants, it is enacted by sec.
55 of the British Guarantee Association Act,3 that the guarantee
of the association may be taken in lieu of the security required
by any statute, rule, or regulation now in force, from persons in
public offices and employments. The like guarantee may be
taken in lieu of security required from persons connected with
the administration of the poor laws in England and Ireland
1 Forbes v. Welsh, June 10, 1829. 2 Bell's Com., vol. i., p. 289.
3 17 and 18 Viet., c. 216.
(sec. 58), or from any officer of a savings' bank, friendly society,
law society, benefit building society, or Government annuity
society (sec. 62).
1692. Cautioners for a Messenger-at-Arms bind themselves "for
the damage, interest, and expenses which the lieges shall sustain
through the negligence, fraudful or informal execution of the
messenger." Under the term "lieges" are included not merely
the employers of the messenger, but all those against whom he
has committed any fault in the discharge of his office as messenger,
but not when acting in the capacity of agent, in which
messengers are sometimes employed.
1693. The obligation, says Mr Bell, is one "of very great responsibility,
considering the infinite delicacy and the importance
of the acts which a messenger has to perform;"1 and, on the
ground that this responsibility cannot be limited to any specific
sum in money, it has been refused by the Guarantee Association.
1694. Caution for a Bank Agent, though an obligation of great
delicacy, and unless limited to a particular sum of great extent,
is governed by the ordinary rules of cautionary already explained.

1695. Judicial Caution is of two kinds, — for appearance, and
for payment.
1696. If a creditor swears that his debtor is meditating flight
(in meditatione fugæ he may obtain a warrant for his apprehension;
and on the intention to fly being proved, he may compel
him to find caution that he will abide the judgment of a court
(judicio sisti).
1697. The ordinary form of the bond of caution for this purpose
is, that the debtor shall appear and answer to an action for
the debt, if brought against him within six months.
1698. Caution by Bond of Presentation is granted when a creditor
is about to execute personal diligence, or has already done so, and
1 Bell's Com., vol. i., p. 290.
grants an indulgence, on the cautioner binding himself that the
debtor shall be forthcoming at an appointed time, otherwise he
himself will pay the debt. The object of the cautioner's interposition
is to protect the debtor from imprisonment, and allow
him time to settle the debt.
1699. Caution in a Suspension or Advocation, is a mode of
staying the immediate execution of a decree, without endangering
the ultimate rights of the party in whose favour it has been
granted.
1700. The terms of a bond of caution in a suspension are,
"that the suspender shall make payment to the charger, or to
any other person to whom payment shall be ordained to be made,
of the principal sum, etc., as contained in the decree and charge
for payment, in case it shall be found by decree of the Court of
Session that he ought so to do after discussing the suspension."
1701. The bond of caution in advocations is, "that the advocator
shall make payment to A, or to any other person, of the
expenses incurred in the inferior court, and of such expenses as
may be incurred in the Court of Session, in case it shall be found
that he ought so to do."
1702. Juratory Caution. — On a satisfactory proof of poverty
being offered, an inferior judge is entitled to grant leave to
advocate on what is called juratory caution; that is to say, on the
advocator or suspender lodging in the hands of the clerk of
court an inventory of his whole possessions, with a disposition in
security in favour of the respondent of any heritage which may
belong to him, and an assignation of his debts and other moveable
rights.
1703. The caution judicatum solvi, in maritime actions, is
abolished by 13 and 14 Vict., c. 36, sec. 24.
CHAPTER XI.
OF INSURANCE.
1704. Insurance is an engagement by the insurer, in consideration
of a specified sum advanced, or of a periodical payment
made by the insured, called a premium, to indemnify him to
a certain extent for such losses as may occur to his property
from contingencies which are specified or understood. The arrangement
forms a means of security (1.) against the dangers of
the elements or of the enemy, to which ships or goods are exposed
at sea; (2.) against the danger of fire, to which property of
all kinds is liable at land; and (3.) against loss to the insurer from
the death of others, or to his family or creditors from his own.
1705. There is no contract known to the law of which the
benefits, in the general case, are more indisputable; for, on the
one hand, the insurer, whilst he divides his loss with others,
earns large profits on the average of his transactions; and, on
the other hand, the insured is protected from losses which, to an
individual, would involve utter ruin. It has been well remarked
by our great authority in mercantile law, that "the obvious
necessity of some such refuge from disaster amidst the perils of
trade, and the impracticability of proceeding without this expedient,
now that it is known, afford unquestionable proofs of
the narrow limits of ancient commerce, in which insurance was
not practised."1
Marine Insurance.
1706. The persons who undertake risks on ships, or goods on
board of them, are termed underwriters, from their writing their
1 Bell's Com., vol. i., p. 473.
names under the sums for which they respectively become liable.
The transaction is commonly effected by a middleman, or broker
as he is called, whom capitalists, on the one hand, empower to
incur risks for them, and to whom the merchant or shipowner, on
the other hand, applies when he wishes to insure.
1707. The broker by this means is placed in a position which
enables him to complete the transactions without delay. "The
broker," says Mr Burton, "is in the situation of debtor and
creditor with both parties. To the credit of the underwriter
he puts down premiums, which he credits as cash, undertaking
the risk of recovering them; and in periodical accounts he may
balance against these, returned premiums and losses. Against
the insured he debits the premium, and credits an insured loss
or a return premium."
1708. There can be no insurance where there is no interest,
though it is not necessary that it be specified in the policy;2
insurances, "interest or no interest, or without further proof
of interest than the policy, or by way of gaming or wagering,
or without benefit of salvage to the insured," being suppressed
by an Act of early date.3 But an insurable interest
need not be a direct right of property; it may consist of an expected
profit or freight, or other interest in the ship. Seamen's
wages cannot be insured, because "it is one object of all maritime
laws to prevent the desertion of seamen, and interest them
in the preservation of the ship."4 This prohibition extends to the
mate and all inferior officers, but not to the captain or master.
1709. On the principle that immoral contracts are null, no insurance
will be given effect to where the contract involves a
breach of law.5
1 Burton's Manual, p. 436; and Bell's Corn., vol. i., p. 494.
2 Bell's Corn., vol. i., p. 477. 3 19 Geo. IL, c. 37, sec. 1
4 Arnould on Marine Insurance, vol. i., p. 258. Edition, 4 1857.
5 Marshall, p. 52.
1710. The risks to which marine insurance commonly applies
are those of — 1st. Loss by the sea; 2d. by fire; 3d. enemies;
4th. pirates; 5th. arrests by kings or states; 6th. "barratry," or
fraudulent and illegal acts by the master and mariners; 7th.
jettison or jactus, i.e., the casting overboard of parts of the
cargo, or of the guns, stores, etc., for the common safety.1
Barratry does not include bad stowage, exposure to wet, theft,
etc.2
1711. Policy. — The only legal evidence of the contract is a
policy, written on stamped paper.3
1712. It is usually preceded by a slip, which is merely a jotting
or memorandum, to which the underwriters subscribe their initials.
This slip cannot be received as evidence in contradiction
to the policy.4 As to its effect before the policy is completed,
Mr Arnould says, "A memorandum of insurance, embodying an
agreement to execute a regular stamped policy, and acknowledging
the receipt or accompanied by the payment of premium,
may be enforced, at all events, in courts of equity, or in courts
possessing a mixed legal and equitable jurisdiction, like the
Court of Session in Scotland. In such cases, however, the
memorandum is available not as in itself constituting a legal contract
of insurance, but only as an agreement to execute such
contract."5
1713. Like other instruments in re mercatoria, a policy of insurance
does not require to be subscribed according to the
statutory formalities required in the subscription of probative
deeds. No witnesses are required.
1714. Parole evidence will not control the popular meaning
of the words of a policy "unless it establish a usage, which, in
1 Bell's Com., pp. 473, 485. 2 Bell's Com., p. 478.
3 The duties are given in 7 and 8 Vict., c. 21. 4 Bell's Com., p. 473.
5 Arnould on Marine Insurance, t. 52; and Lord Denman, in Mead v. Davidson,
3 Ad. and Ell. 303.
mercantile affairs, and when not inconsistent with law, controls
the construction of all policies."1
1715. The policy bears the receipt of the premium, and it is
therefore presumed to be paid.
1716. Insurance being a contract of good faith, misrepresentation,
false insinuation, and concealment of facts, materially
affecting the risk, will be fatal. As an example, may be given
concealment of positive information of the day of sailing.
1717. Warranty differs from representation in this, that
whereas the effect of representation depends on whether or not
the fact to which it refers is material to the risk, warranty,
whether material to the risk or not, is an absolute condition,
which, if not true or not complied with, defeats the insurance.
1718. Express warranties are either mentioned in the body of
the policy or in some instrument to which it refers.
1719. They have reference to the sailing or departure of the
ship, to her safety on the day of signing, and the like.
1720. Implied warranties are such as must of necessity be supposed
to result from the very nature of the contract: for example,
that the ship is sea-worthy; that the navigation will be
conducted with ordinary care and skill; that the voyage is not
forbidden by public law, etc.
1721. Sea-worthiness implies that the ship, rigging, and tackle,
are sufficient for the safe performance of the voyage.
1722. An old treenail hole imperfectly filled up, and thereby
occasioning a leak, was held to free the underwriters. So the
want of ground tackling sufficient for the ordinary perils of the
sea, or of the rigging and sails necessary to enable the ship to
escape from the enemy, or proceed with due expedition, are
defects in sea-worthiness.
1723. In this, as in other warranties, it signifies nothing
whether the insured was himself aware of the ship's condition or
1 Bell's Com., p. 474.
not. No ignorance or innocence on his part will be an answer
to the fact that the ship was unfit for the voyage. An inadequate
force in the crew, or an incapable master, is deficiency in seaworthiness.

1724. Non-alteration of the voyage is an implied warranty; as
is also non-deviation; for the risk being calculated on the regular
course of a specified voyage, it is of the essence of the contract
that that course shall be adhered to.
1725. The mere intention to deviate, or an engagement to do
so, or instructions to that effect to the master, will not discharge
the underwriters if the ship is lost before the deviation.
1726. If the deviation was necessary for the safety of the ship
or cargo, or of a part of the cargo, it will not discharge the
underwriters, provided the shortest and most expeditious course
has been adopted.
1727. If a voyage to a given place be insured, but when the
ship sails there is no intention of going to that place, she is held
not to have sailed on the voyage though lost on the fair way of
it. This is not a question of deviation, but of total abandonment
of the insured voyage. But when the termini of the voyage contemplated
are those described in the policy, the voyage is held
to be the same up to the point of divergence. Total loss, therefore,
before the diverging point, is covered; and in the case of
partial loss, evidence will be led as to the proportion of it occurring
before and after that point.
1728. Total loss does not necessarily imply the entire destruction
of the subject insured. It may be only such damage as to
render it comparatively valueless, or to reduce the value to less
than the freight.
1729. For purposes of insurance, a ship is totally lost where it
cannot be repaired so as to proceed on the voyage at a reasonable
expense; and, in like manner, goods are totally lost where
the object of the voyage is defeated.
1730. Abandonment. — A claim for total loss must be accompanied
by abandonment where there is anything remaining or in
hope. The underwriter is thus left to make the most of what
may be saved.
1731. Partial Loss or Injury. — In cases of partial loss, the insurer
recovers the estimated amount of the loss or damage, which
is called average; but by the custom of trade no loss is paid unless
it amounts to a certain per centage. In London this is
regulated by a notandum on the policy, which sets out that corn,
fish, salt, fruit, flour, and seed are warranted free from average,
unless general, or the ship be stranded; sugar, tobacco, hemp,
flax, hides, and skins are warranted free from average under 5
per cent.; and all other goods, also the ship and freight, are warranted
free from average under 3 per cent., unless general, or the
ship be stranded.
1732. Capture and arrest of princes may be treated as total
losses, and the ship abandoned just as in the case of shipwreck.
1733. Reinsurance. — The interest which the underwriter has in
the voyage is one which he is entitled to protect by insurance.
This right, which, in most of the countries of Europe, is unlimited,
has with us been restricted by statute1 to a remedy to the
creditors or executors of the insurer.
1734. Double insurance is where the insured effects insurance
of the same risk with more than one set of underwriters. In this
case he may sue for complete indemnity on both policies, though
he cannot draw it under both, for that would amount to a wager
policy. There is contribution and relief among the underwriters,
all the policies to that intent being regarded as one.
Fire Insurance.
1735. Fire insurance is a contract by which the insurer under1
19 Geo. II., c. 37, sec. 4.
takes for a limited period, in consideration of a premium, to indemnify
the insured for such injuries to his house, or other
premises, goods, or stock, as may occur from accidental fire.
1736. The premium is commonly paid in advance; and the transaction
is managed, not by brokers, but by the insurer, commonly
a joint-stock company, and the insured communicating directly.
1737. Policies without interest, which in marine insurance are
forbidden as a species of gambling, are in fire insurance most
anxiously guarded against as holding out temptations to wilful
fire-raising. They are thus exceptional at common law, and they
are prohibited by 14 Geo. III., c. 48.
1738. But if the interest be real, it is a matter of indifference
from what source it arises. A creditor who holds a security
over the house or goods of his debtor, or a trustee or agent who
has goods for sale on commission, have the same right to insure,
up to the value of the property, as if it actually belonged to them.
1739. Factors, warehousemen, printers, and the like, who
have goods entrusted to them of which the value fluctuates from
day to day, effect a general or floating insurance, applicable to
all goods that may be in their warehouse, or to the goods that
may be in all or any of their warehouses, cellars, granaries, or
the like, at a certain port or in a certain city.
1740. The insured is allowed to sue on such a policy for the
loss of the property of his customers as well as his own, if he can
show that by contract, or usage, or the course of dealing he is
liable for the goods.1 He will be entitled, however, to apply the
sum received to extinguish his own loss in the first instance.2
1741. The policy must be written on stamped paper.3 It
1 Bell's Com., vol. i., p. 501.
2 Dalgleish v. Buchanan, Jan. 17, 1854.
3 By 3 and 4 Will. IV., c. 23, the duty on each policy is 1s.; and 3s. per cent.
per annum on every insurance made or renewed. Public hospitals, agricultural
produce, farm stocking, and implements of husbandry are exempted.
stipulates that payments of premium shall be made within fifteen
days from the day limited in the policy; and that no insurance
shall take place till the premium is paid. An application presented
and agreed to is thus no insurance until the stipulated
deposit has been made.1
1742. The same general principles as to fairness in disclosing
circumstances material to time risk, which we stated under Marine,
apply to fire insurance.
1743. Here also a warranty is part of the contract, and if not
true, destroys the insurance, even though it should not be material
to the risk.
1744. Mere increase of heat, though injurious to property,
will not entitle the insured to recover, — there must be ignition.2
1745. The policy covers all damage and injury incident to
fire; such as that caused by water used in extinguishing the fire,
and even reasonable charges for removing the articles which have
escaped the fire altogether. Buildings separated by a stone or
brick gable must be insured separately, and not in cumulo.
But in fire insurance, though a sum less than the value of the
subject be insured, and a partial loss occur, the insured recovers
his whole loss, without contribution as for time value uninsured.
1746. Loss occasioned by want of occupancy of the premises
destroyed, or loss of rent, is not covered by the policy, unless
there be a special insurance to that effect. This point has been
so decided both here3 and in England, contrary to the opinion of
Mr Bell.4 The English decision was held to be of equal authority
with a Scotch one, in a department in which the laws of the
two countries do not differ; but the Court held their view to be
strengthened by the fact, that in the Scotch case the insurance
1 Bell's Corn., i., p. 502. 2 Ibid.
3 Menzies v. North British Insur. Company, Feb. 13, 1847; Wright v. Pole, Adol. and El. 621.
4 Bell's Com., i., p. 503.
company had reserved to itself the right of reinstating the buildings
in place of paying the money. The loss was thus a loss
which could be repaired by building.
1747. On the occurrence of a fire, the insured is bound to give
the most satisfactory proofs he can be expected to possess of the
amount of injury.
1748. He must also give notice of any other insurances effected,
so as to afford an opportunity to the office claimed against to
call for contribution. These and other conditions are generally
inserted in the printed proposals.
1749. There is no abandonment as in a total loss in marine
insurance, and the settlement is always on the principle of an
average loss.
1750. The loss is generally settled by arbitration, — a clause
of reference being very generally inserted in policies.
1751. By 19 Vict., c. 22, all insurances effected by foreign
companies in Great Britain are subjected to the same duties as if
made by British companies; and all persons who as agents receive
proposals for insurance by companies out of the United
Kingdom, are deemed to be persons keeping an office for fire insurance,
and are required to take out a license and give security
for payment of duties under a penalty (secs. 1, 2, 3).
Life Insurance.
1752. Life insurance is scarcely a contract of indemnity, like
sea and fire insurance, but it may be viewed either as a contract
of mutual risk, or simply as an artificial mode of investing money.
1753. The premium in consideration of which the insurer
agrees to pay a certain sum on the death, or a certain annuity
during the life of the insured, is proportioned to his age, health,
and other circumstances.
1754. As in marine and fire, so, for still more obvious reasons,
in life insurance, there can be no insurance where there is no interest.1
The name of the party to be benefited must appear on
the policy, and no more can be recovered by him than the
amount or value of his interest.
1755. A creditor has an insurable interest in his debtor's life,
but not if the debt be a gaming debt.
1756. It is said2 that a father has no insurable interest in the
life of his son; but this is doubtful, and such insurances are
quite common, — a father has no other way of covering loss of
outfit, purchase of a commission or business. A wife or children
have a sufficient interest to entitle them to open a policy
on the life of the husband or father. The same rules as to representation
and warranty prevail as in the other insurances.3
1757. The general declaration, that the person whose life is
offered for insurance has "no disorder tending to shorten life,"
implies not that he is free from disease, which in every form has
this tendency, but that he is in a reasonably good state of health,
and has no disease likely to lead directly to his death.
1758. In most life policies, death abroad or at sea are excepted;
but unless excepted expressly, they are covered by the
policy.
1759. Death by suicide, duelling, or by the hand of justice, are
fatal to an insurance even when effected by creditors. In the
case of the Amicable Society v. Bollaud, it was held in the House
of Lords, reversing the decision of the Court below, that the
policy effected by Fauntleroy, who was executed for forgery,
was forfeited, though there was no exceptions as to death by the
hand of justice.4
1760. The full sum in a life policy must always be paid as in
a total loss.
1761. Life policies are constantly assigned in security for debt.
1 14 Geo. III., c. 48. 2 Bell's Corn., i., p. 505
3 Ante, p. 311, 315. 4 4 Bligh, N. S. 194.
A policy thus assigned reverts to the original holder when the
debt is paid, and may be made the means of credit on another
occasion. Assignment in sequestration, or under a commission
of bankruptcy carries a policy of life insurance.
1762. By 16 and 17 Vict., c, 34, sec. 54, it is provided, that
persons who have made insurance, or contracted for a deferred
annuity on the lives of themselves, or their wives or children,
shall be entitled to deduct the amount of the annual premiums
paid for such insurance, or the annual sum deducted from their
salaries or stipends, from the Income Tax for which they are liable.
But no such abatement can be made beyond one-sixth part of
the whole amount of profits and gains; nor does such abatement
entitle any one to claim total exemption on the ground of his
profits or gains being reduced below the assessable amount.
1763. This Act has been extended for a limited time by subsequent
Acts, of which the latest is 20 and 21 Vict., c. 5.
CHAPTER XII.
COPYRIGHT.
1764. The earliest statute by which an attempt was made to
extend to published literary works that protection which, in some
imperfect measure, they had enjoyed from the practice of printers
and booksellers as far back as the time of Elizabeth, but which
it has been found both here and in England that the common
law does not afford them, was 8 Anne, c. 19.
1765. It was therein enacted that the author should have the
sole liberty of printing his works for fourteen years; and if he
1 As to the legislation of different countries on the subject of copyright, see
Traité des droits d'Auteurs, par M. Charles Renouard, Paris, 1838; and Curtis
on the Law of Copyright. London and Boston, 1847.
were living at the end of that term, that the right should return
to him for another period of the same duration.
1766. This term was extended, and additional regulations introduced,
by subsequent statutes,1 which, along with that just referred
to, were repealed by 5 and 6 Viet., c. 45 (1st July 1842).
By this enactment the whole law relating to copyright in books
was consolidated, and by it, as regards books published in Great
Britain, it is still regulated.
1767. What is a book? The statute defines a book to mean
"every volume, part or division of a volume, pamphlet, sheet of
letterpress, sheet of music, map, chart, or plan, separately published"
(sec. 2). The term, as thus limited, does not include
designs for ornamenting articles of manufacture, even although
published in the form of a book; separate arrangements for the
protection of which were made by the Design Acts of 1842,
1843, and 1850; now consolidated and amended by the "Copyright
of Designs Act, 1858.2
1768. By section 3 it is provided, that the copyright of every
book, as thus defined, published in the lifetime of its author,
shall endure for his natural life, and for the further term of
seven years, commencing at the time of his death, and shall be
the property of the author or his assigns, provided that, if the
term of seven years shall expire before the end of forty-two
years from the first publication, the copyright shall, in that case,
endure for such period of forty-two years; and that the copyright
in every book published after the death of its author shall
endure for the term of forty-two years from the first publication,
and shall be the property of the proprietor of the author's
MS. from which such book shall be first published, and his
assigns.
1769. There must thus, in every case, be a copyright for fortytwo
years, and there may be a copyright for a longer period,
1 41 Geo. III., c. 107; 54 Geo. III., c. 156. 2 21 and 22 Viet., in 70.
should the life of the author, and the seven years after his death,
extend beyond the forty-two years.
1770. The extended period applies to copyrights under the
old law, if held by the author or his representatives; but if belonging
to "a publisher or other person who shall have acquired
it for other consideration than that of natural love and affection,"
the extended term is to apply only in the case of the author, or his
personal representative if he be dead, joining with the proprietor
in a minute of consent, to be entered in the Stationers' Hall
Register. The term "personal representative," when rendered
into the legal phraseology of Scotland, means the person or
persons who have succeeded to the moveable as opposed to the
heritable estate, or the executor under a will as their representative
(secs. 4 and 25).
1771. To provide against the suppression of books of importance
to the public, of which the authors are dead, it is enacted
that the Judicial Committee of the Privy Council, on complaint
that the proprietor of the copyright refuses to republish or allow
republication, may license the complainant to publish the book.
1772. Copies of all books published after the passing of the
Act, and copies of all subsequent editions with any additions or
alterations, must be delivered at the British Museum within one
calendar month if published in London, or within three calendar
months if published elsewhere in Britain. In like manner,
copies shall be given to the Bodleian Library at Oxford, to the
Public Library at Cambridge, to the Library of the Faculty of
Advocates, Edinburgh, and to the Library of Trinity College,
Dublin (sec. 8), on demand in writing being left at the abode of the
publisher at any time within twelve months, under the hand of the
officer of the Company of Stationers appointed for the purposes
of the Act, or under the hand of any other person authorised by
these bodies.
1773. By sec.9, publishers are permitted to deliver their
books at the libraries themselves, in place of at Stationers' Hall;
and by sec. 10, a penalty not exceeding five pounds, in addition
to the value of the book, is imposed in case of failure to comply
with these requirements.
1774. Register at Stationers' Hall. — A book of registry is to be
kept at Stationers' Hall, open to inspection for a fee of one
shilling (sec. 11), wherein it shall be lawful for the proprietor
of copyright in any book to make entry of the title of such book,
the time of the first publication thereof, and the name and place
of abode of the proprietor of the copyright, or of any portion of
the copyright, upon payment of the sum of five shillings to the
officer of the company; and every such registered proprietor
may assign his interest or any portion of his interest therein, by
making entry in the said register of such assignment, and of the
name and place of abode of the assignee, on payment of the like
sum, and such assignment shall be effectual without being subject
to any stamp or duty, and shall be of the same force as if made
by deed (sec. 13). No proprietor of copyright shall sue or proceed
for any infringement of the Act before making entry in the
book of registry (sec. 24).
1775. Persons aggrieved by any entry in the book of registry
may apply to a court of law in term, or to a judge in vacation,
who may order such entry to be varied or expunged (sec. 14).
1776. Any person who shall print, or cause to be printed,
either for sale or exportation, any book in which there shall be
subsisting copyright, without the consent, in writing, of the proprietor,
or shall import for sale or hire any such book unlawfully
printed from parts beyond the sea, or knowing such book
to have been so printed or imported, shall trade with it, or have
it in his possession for purposes of trade, shall be liable to an
action of damages (sec. 15).
1777. A subsequent clause provides a summary mode of
punishment by conviction before two justices of the peace — and
the infliction of the penalty of forfeiture of the books, of L.10,
and double the value on any person except the proprietor, or a
person authorised by him, who shall import into the British
dominions for sale or hire, books first composed, written, or
printed and published in any part of the said kingdom, and
reprinted elsewhere.
1778. The books seized by the officers of customs or excise,
in obedience to this section, are to be destroyed (sec. 17).
1779. Reviews, Encyclopcedias, etc. — A new and important
arrangement is introduced as to the copyright of works produced
by the joint efforts of several individuals. By sec. 18, it is
enacted, that when the proprietor of any encyclopædia, review,
magazine, periodical work, or work published in a series of
books or parts, or of any book whatsoever, shall have employed
several persons to compose the same, the copyright in every such
work shall belong to the proprietor as if he were the actual
author thereof; and as against third parties he shall be protected
for the full period of forty-two years; but after the term of
twenty-eight years, the right of republishing the articles of
which such works are composed shall revert to their authors for
the remainder of the term given by the Act. It is further provided,
that, during the twenty-eight years, the proprietor shall
not publish the articles singly or separately without the consent
of their authors: nor shall those authors be affected who have
reserved, or may in future reserve, the right of publishing their
articles in a separate form (sec. 18).
1780. Music. — The provisions of the Act are extended to
musical compositions, and the term of copyright, as provided by
the Act, is applied to the liberty of representing dramatic pieces
and musical compositions (sec. 20).
1781. Engravings. — The copyright of engravings, works of
art, maps, plans, etc., on plates, is twenty-eight years from the
day of publication. It is still regulated by the statutes mentioned
below,1 the provisions of which are extended by 15 Vict.,
c. 12, to prints taken "by lithography, or any other mechanical
process by which prints or impressions of drawings or designs
are capable of being multiplied indefinitely" (sec. 14).
1782. Sculpture. — By 54 Geo. III., c. 56, the sole right and
property of all new and original sculpture, models, copies, and
casts, is vested in the proprietors for fourteen years (sec. 1), and
for an additional term of fourteen years to the original Sculptor,
should he be living (sec. 6).
1783. Universities. — The privileges of perpetual copyright
held by the universities in any works deposited with them, in
order that the profits of the publication may be applied to the
advancement of learning, under 15 Geo. III., c. 53, are reserved
(sec. 27).
1784. Lectures delivered in public are protected by a special
statute (5 and 6 Will. IV., c. 65) from publication by those
who, by the payment of fees or otherwise, have obtained permission
to hear them; and when published by their authors they
enjoy the same copyright as other works.
1785. International Copyright. — The leading enactment on this
subject is 7 Viet., c. 12, as extended and explained by 15 Vict.,
c. 12. By the first of these statutes the Crown is empowered, by
Order in Council, to extend the privileges of British copyright to
works first published in foreign countries, but provided that no
such Order shall have effect unless it shall be therein stated as
the ground for issuing it, that reciprocal protection to the works
of British authors has been secured (secs. 2 and 14).
1786. The provisions of the British Copyright Acts as to the
entries in the register book at Stationers' Hall are incorporated
in the International Copyright Act.
1787. By the subsequent Statute (15 Vict., c. 12), an order
in Council may be issued to the effect that the authors of books
1 8 Geo. II., c. 13; 7 Geo. III., c. 38; 17 Geo. III., c. 57; 7 Will. IV., c. 59.
published in foreign countries may, for a limited time, prevent
unauthorised translations of their work from appearing in Britain.
The time is not more than five years from the publication of an
authorised translation (sec. 3).
1788. The same privilege may be extended to the authors of
dramatic works expresented in foreign countries; but adaptations
of dramatic pieces to the English stage are not prevented
(sec. 6).
1789. All articles in newspapers or periodicals relating to
politics may be republished or translated, and also all similar
articles on any subject, unless the author has notified his intention
to reserve the right.1
1790. The prohibition against the importation of works illegally
printed abroad, which the former copyright Acts had confined
to those originally printed in Britain, is extended to all
works wherein there is any subsisting copyright under the International
Copyright Acts, except as regards the country in which
such works are first published, and to all unauthorised translations.
The provisions of 5 and 6 Viet., c. 45, as to forfeiture of
pirated works, are extended to works prohibited to be imported
under this Act (sec. 9).
1791. In accordance with the convention entered into with
France, it is enacted, that French translations shall be prohibited,
and this without any farther Order in Council (sec. 11).
Farther, in fulfilment of the said convention, the duties on books
and engravings published in France are reduced; and it is
enacted that these duties shall not be raised during the continuance
of the treaty; and if a farther reduction be made for
other countries, it shall be extended to France.
1792. Copyright in Designs. — By the "Copyright of Designs
Act, 1858," the protection which was granted to the proprietor
of any new and original design for ornamenting articles of manu1
15 Vict., c. 12, sec. 9.
facture by the Act of 1842, of nine months, is extended to three
years, to be computed from the time of such design being registered;
provided that the term of such copyright shall expire on
the 31st December, in the second year after that in which the
design was registered, whatever be the day of such registration.
1793. The Court of Session has always held itself competent
to protect epistolary correspondence, not on the ground of copyright,
but of right on the part of the writer to protect his
reputation and his privacy; and a like power has been exercised
by the Court of Justiciary.
CHAPTER XIII.
OF PATENTS.
1794. Closely analogous to the law of copyright is the law of
patents, by which the inventor of any vendible commodity is
guaranteed a monopoly in the invention, for a limited time.
1795. The power of granting patents of invention, like patents
of corporation, forms a part of the royal prerogative.
1796. When the power of the Crown, to grant monopolies in
other cases, was abolished in England by 21 Jac. I., c. 3, in
consequence of the unwarrantable use which had been made of it
at the instigation of the Duke of Buckingham, this privilege was
retained as regarded "letters patent to use new manufactures"
(sec. 5), and this rule seems by tacit consent to have been followed
in Scotland,2 notwithstanding the apparently general
import of a subsequent Scottish statute.3
1797. The English Act limited the period which formerly had
1 Proceedings in the case of the "Scotch Thistle" newspaper; Irvine's Report
of the Trial of Madeleine Smith, 93 and 305.
2 Bell's Com., 138 ; Burton's Private Law, 79. 3 1641, c. 76.
extended to twenty-one years, to fourteen in the case of all
future grants (sec. 6).
1798. But a prolongation for another seven years may now be
granted on special application;1 and it is further competent for
the holder of a patent or his assignee to present a petition to the
Queen in Council, setting forth that he has been unable to
obtain a due remuneration for his expense and labour, that
the extended period of seven years will not suffice for this purpose,
and praying for a further extension. The application
having been reported on by the judicial committee of the privy
council, her Majesty may, if she think fit, extend the term to
any period not exceeding fourteen years.2
1799. The leading enactment on the subject of patents is now3
"the Patent Law Amendment Act, 1852."
1800. By section 1 the law officers of the Crown (in Scotland
the Lord Advocate and Solicitor General), and such other
persons as her Majesty may think fit, are constituted commissioners
of patents for inventions; three of them being empowered to act,
the Chancellor or Master of the Rolls being one. To these commissioners,
who are to report annually to Parliament, is in future
entrusted the whole duties of government in relation to patents;
her Majesty's power of granting patents, or reversing the proceedings
of the commissioners being specially reserved (sec. 16).
1801. Petitions for Grants of Letters Patent, accompanied by the
requisite declaration of their truth,4 must be left at the office of
the commissioners. And there must further be left a statement
in writing, called the "Provisional Specification," signed by or on
behalf of the applicant, and describing the nature of the invention
(sec. 6).
1802. Every application is to be referred by the commissioner
to one of the law officers; who, in judging of the provisional
1 5 and 6 Will. IV., c. 83. 2 7 and 8 Vict., c. 69, sec. 2.
3 15 and 16 Vict., c. 83. 4 5 and 6 Will. IV., c. 62, sec. 11.
specification, shall be at liberty to call to his aid such scientific
or other person as he may think fit.
1803. If the law officer, after this investigation, is satisfied
that the provisional specification describes the nature of the invention,
he shall grant a certificate of allowance, which shall act
as a provisional protection for six months, from the consequences
of use and publication (see. 8).
1804. Should the applicant prefer it he may file, with his petition
and declaration, a complete specification, in which case the
invention shall be protected for six months, and the applicant
shall have the like powers, rights and privileges during that
term, as are conferred by letters patent (sec. 10).
1805. The commissioners are to cause these protections to be
advertised, and also the subsequent application for the letters
patent, should the applicant persevere, along with such opposition
as may be offered to his application (sec. 12).
1806. After hearing the objectors and determining the question
of costs, the law-officer is empowered to cause a warrant to
be made for sealing the letters patent with the seal of the commissioners.

1807. The letters patent, when finally issued under the great
seal, are valid for the whole of the United Kingdom (sec. 18).
1808. Such letters may be granted to the personal representatives
of the applicant during the term of protection, or within
three months after the applicant's decease; and the letters so
granted shall be of the same effect as if they had been granted to
the applicant himself (sec. 21).
1809. Foreigninventions. — Letters patent obtained in the -United
Kingdom for patented foreign inventions are not to continue in
force after the expiration of the foreign patent (sec. 25).
1810. English letters patent are not to prevent the use of inventions
in foreign ships, or for the purpose of navigating them
in British waters, except ships of foreign states in whose ports
British ships are prevented from using foreign inventions
(sec. 26).
1811. Copies of all specifications (other than provisional
specifications) shall be open to inspection, and the commissioners
shall cause them to be printed, published, and sold.
1812. A register of patents shall be kept at the office of the
commissioners, wherein shall be entered and recorded in chronological
order, all letters patent granted under the Act, and all
other documents connected with the granting or cancelling of
such letters (sec. 34).
1813. Any number of persons may now have a legal interest
in letters patent (sec. 36).
1814. Actions for Infringement of Letters Patent. — When proceedings
shall require to be taken in Scotland to repeal any letters
patent, they shall be in the form of an action of reduction at the
instance of Her Majesty's Advocate, or at the instance of any other
party having interest, with the Lord Advocate's concurrence.
1815. Two subsequent statutes have been passed on the subject
of patents; the first to substitute stamp duties for fees on
passing letters patent for inventions, and to provide for the purchase
for the public use of indexes to the existing specifications,
to the number of fifteen thousand and upwards, which had been
constructed by a private person;1 the second is to amend the
16 Vict., c. 5. 1853:—
The following is the schedule of stamp duties appended to the Act:—
On Petition for Grant of Letters Patent, . . L.5 0 0
On Certificate of Record of Notice to Proceed,. 5 0 0
On Warrant of Law Officer for Letters Patent, 5 0 0
On Sealing of Letters Patent,. . . 5 0 0
On Specification,. • . 5 0 0
On Letters Patent, or Duplicate thereof, before the ex- 50 0 0
piration of the third year, ..
On Letters Patent, or a Duplicate thereof, before the ex- 100 0 0
piration of the seventh year, ..
On Certificate of Record of Notice of Objections, 2 0 0
Act of 1852, by providing that certified copies of all specifications,
and complete specifications, fac similes of drawings, disclaimers,
and memoranda of alterations filed under the Patent Act, shall
be transmitted to the office of the Director of Chancery in Scotland,
and to the Enrolment Office of the Court of Chancery in
Ireland, and certified copies furnished to applicants.1
1816. Principle. — It is a fixed point in patent law, that the patent must be for a vendible matter, and not for a principle.
"The very statement of what a principle is," said Mr Justice
Buller,2 "proves it not to be a ground for a patent; it is the
first ground and rule for arts and sciences, or, in other words,
the elements and rudiments of them. A patent must be for
some new production from those elements, and not for those
elements themselves."And, in another case,3 it was held that
"the patent is not for a principle, but for the mode of carrying
that principle into practice."
1817. But infinite difficulty has arisen in fixing, in individual
cases, the point at which the principle becomes a vendible commodity.
Mr Croyton, in his "Treatise on Patent Law," thus
states the results of the various discussions to which the subject
has given rise:— "As a general rule, wherever a discovery is
made of a principle or property of matter applicable to the improvement
of manufactures, there is good ground for a patent,
provided the subject matter of it be expressed in the proper
form. The original discoverer cannot however take out a patent
for its general application. Thus, Mr Justice Heath says," that
On Certificate of Search and Inspection, . . L.0 1 0
On Certificate of Entry of Assignment or Licence, . 0 5 0
On Application for Disclaimer, . 5 0 0
On Caveat against Disclaimer, . • . 2 0 0
On office copy of Documents, for every Ninety words, . 0 0 2
1 16 and 17 Vict., c. 115. 1853.
2 In Boulton v. Bull, v. Croyton, p. 69, et seq.
3 Neilson v. Harford (1841), Web. P. R. 343.
a patent could not be claimed for the use of the power of steam.
It must be for the vendible matter, and not for the principle."1
The reason of this rule seems to be better given by Mr Bell than
by any of the English authorities, where he says, that, if the
discovery of the expansive force of steam had been made the
subject of patent, "it would have comprehended and restrained
any future invention proceeding on that principle."2
1818. Simultaneous Invention. — Where there are simultaneous
applications, the decision of the claim is left to the law officer
of the Crown. The rule which has been followed seems to be,
that, if several persons have possessed a knowledge of the invention
in common, no one of them can obtain a patent. But the case
is different when several persons have made the discovery at the
same time, but without communicating it to each other or using it.
In these circumstances the patent will be given to the first applicant.

1819. Aid in Invention. — The claimant must be really the inventor,
and must not have availed himself of the suggestions of
another person. The rule as to the employment of servants is
this :—"If the servant make a new discovery by himself, such
invention becomes his property; but if the master plans, and the
servant only executes, with alterations of his own, then the master
is the true inventor."3 It is not unusual for letters patent to be
taken in the names of two or three persons; but, if it should
be discovered that any one or more of these persons had no
share in the discovery, the patent would be void.4
1820. It was formerly decided that a patent cannot be taken
for Scotland if the invention has been in use in England; and,
international questions between the two countries are now precluded,
— 15 and 16 Vict., c. 83, being applied to the whole
kingdom.
1821. The point as to whether a patent is heritable or move1
Croyton, p. 77. 2 Com., p. 541. 3 Godson, p. 28. 4 Ibid.
able in Scotland, has not been decided, though the balance of
authority is in favour of the latter view.1
CHAPTER XIV.
SECURITIES FOR DEBT.
1822. Personal Bond. — We have already mentioned2 that bills
and promissory notes are very frequently used as simple and
economical methods of constituting personal obligations. But,
where special conditions are attached to the loan, or where the
money is likely to remain unpaid beyond the six years, on the
expiry of which bills and notes prescribe, the personal bond
which carries the long prescription of forty years, must be
resorted to.
1823. The bond is a simple acknowledgment of the receipt
of, and obligation to repay money lent or otherwise owing,
executed with the formalities requisite in all probative writings.3
1824. Bonds, with a clause obliging the debtor to pay interest,
unless made heritable by express destination, are moveable in
questions of succession by statute 1661, c. 32; but, as rights
bearing a tract of future time, they are heritable in questions
between husband and wife, and with the "fisk" or exchequer
(quoad fiscum).
1825. Bonds usually contain a clause imposing a penalty in
case of failure to pay, of "a fifth more," that is to say, over and
above performance of the primary obligation. But whatever
may be the extent of the penalty, it is liable to an equitable
reduction by the Court, so as to meet the damage actually
1 Bell's Com., vol. i., p. 546. 2 Ante, p. 265. 3 Ante, pp. 163, 164.
incurred. Such, however, is not the case if the penalty be in the
form of an alternative instead of performance.
1826. A Bond generally contains a clause of "registration for
execution." If registered, in terms of this clause, in the books
of a court having jurisdiction to enforce it, execution will proceed
against the person and property of the debtor on a simple
extract from the record, without the intervention of a decree.
1827. In addition to being used as securities for the payment
of money, such bonds are commonly employed to constitute cautionary
obligations, or to grant security for a cash credit at a bank.
1828. The rate of interest payable on a personal bond, though
usually five per cent., depends, since the repeal of the usury laws,
by 17 and 18 Vict., c. 90 (10th August 1854), wholly on the
stipulation of the parties.
1829. With reference to obligations entered into before the
passing of the Act, it is provided (sec. 3), that "where interest
is now payable upon any contract, express or implied, for payment
of the legal or current rate of interest, or where, upon any
debt or sum of money interest is now payable by any rule of law,
the same rate of interest shall be recoverable as if this Act had
not passed."
1830. The Court of Session found, in a recent case,1 that the
term "legal interest," where the contrary is not specified, still
means five per cent.
1831. Heritable Bond. — This is a form of security on land
which, in practice, has almost entirely superseded the ancient
obligations of wadset, and infeftment of annual rent.
1832. By this deed the borrower obliges himself to repay the
sum lent, with interest and penalty; and in further security, and
over and above his personal obligations, he grants to the creditor
a real but redeemable right in the lands themselves, as well as in
an annual rent corresponding to the interest of the debt.
1 Smith v. Barlas, January 15, 1857.
1833. There is generally a clause of registration for execution,
as in the personal bond.
1834. Bond and Disposition in Security. — This form of security
affords a more expeditious method of making good the debt, by
giving the creditor a power or commission to sell the lands in
certain circumstances. It is, in short, a complete conveyance of
the lands to the debtor, redeemable on payment, the debtor
being protected from advantage being taken of the power of
sale thus conferred, by a clause in which the creditor is precluded
from selling without warning of his intention, communicated
in accordance with certain prescribed forms. This clause
is strictly interpreted, and even where it is omitted, the Court
will interpose to prevent the property from being surreptitiously
disposed of. Neither is the creditor, even after notice, entitled
to possess himself of the whole proceeds of the sale lie is
merely entitled to pay himself, and must account to the debtor
or his creditors for every farthing he receives beyond the sum
requisite for that purpose.
1835. Absolute Disposition with Back Bond is a form of landed
security for future advances, sometimes given to bankers in
security for a cash credit.1 It is in form an absolute conveyance
of heritage; the creditor (disponee) granting the debtor (disponer)
a back bond, disclosing the true character of the
transaction.
1836. For an account of the modes of transference and extinction
of heritable securities, see 8 and 9 Vict., c. 31.
1837. "The chain of feudal titles to land," says Mr Bell,2
"continues unbroken and unaffected by these rights in security,
which are held as excrescences on the property, and may be
created or dissolved without affecting the radical right to the
estate, or touching the progress of titles."
1838. Though constituted feudally, they are mere accessories
1 Principles, sec. 896. 2 Ante, p. 303.
of the debt, and are discharged by its extinction, or annihilated
by renunciation, without any feudal form of re-conveyance.
1839. Inhibition is a mode of protecting an heritable security
from alienation or depreciation. By this diligence the debtor
inhibited is prevented from contracting any new debt which may
be or become a burden on his heritage, or whereby it may be
attached or alienated to the prejudice of the creditor inhibiting.
Letters of inhibition are issued from the signet on a warrant
from the Lord Ordinary on the Bills.
1840. In addition to the prohibition against the debtor these
letters prohibit the lieges from accepting a conveyance of his
property, or taking vouchers of debt from him. With a view
to this double prohibition it is necessary that the letters of inhibition
be not only executed against the debtor, but that they be
published at the head burgh of the shire where he resides, or
edictally, if he be abroad. It is also necessary that letters of
inhibition be registered either in the local register of the county;
or, if they be intended to apply to the whole of Scotland,1 in the
general register at Edinburgh.2
1841. Inhibition is strictly personal, and, consequently, on the
death of the person inhibited, his heir will not be affected by
the prohibition, unless it be renewed against him. It is provided
by the Bankrupt Act,3 that the truster's right in a sequestration
"shall not be challengeable on the ground of any prior inhibition,
saving the effect which such inhibition may be entitled to in
the ranking of creditors" (see. 102).
1842. Modes of rendering Securities Effectual. — Poinding of the
ground and actions of mails and duties are legal modes of rendering
heritable securities effectual, the nature of which it
scarcely belongs to the province of a popular work to explain.
It is proper, however, to call attention to the following provision
of the Bankrupt Act on the subject of these diligences:—
1 1518, c. 119. 2 1600, c. 13. 3 19 and 20 Vict., c. 79.
1843. "No poinding of the ground which has not been carried
into execution by sale of the effects sixty days before the date of
the sequestration, and no decree of mails and duties on which
the charge has not been given sixty days before the said date,
shall (except to the extent hereinafter provided) be available in
any question with the trustee. Provided that no creditor who
holds a security over the heritable estate preferable to the right
of the trustee, shall be prevented from executing a -poinding of
the ground or obtaining a decree of mails and duties after the
sequestration, but such poinding or decree shall, in competition
with the trustee, be available only for the interest on the debt
for the current half-yearly term, and for the arrears of interest
for one year immediately before the commencement of such
term."1
CHAPTER X V.
OF THE POOR.
1844. Mr Dunlop, in his valuable Treatise on the Poor Law, has
quoted from Fletcher of Saltoun's Second Discourse Concerning
the Affairs of Scotland,2 a passage which is so well calculated at
once to reconcile us to the present condition of the lower orders
in this country, and to strengthen our hopes of its farther amelioration,
that we consider it a duty to reproduce it in the
present work.
1845. "There are at this day (1698) in Scotland (besides a
great number of families very meanly provided for by the church
boxes, with others who, with living upon bad food, fall into
1 19 and 20 Vict., c. 79, sec. 118 (1856), Ante, p. 251.
2 P. 24.
various diseases), 200,0001 people begging from door to door.
These are not only no ways advantageous, but a very grievous
burden to so poor a country; and, though the number of them
be perhaps double to what it was formerly,2 by reason of the
great distress, yet in all times there have been about 100,000
of these vagabonds, who have lived without any regard or submission
either to the laws of the land, or even of those of God
and nature, — fathers incestuously accompanying their own
daughters, the son with the mother, and the brother with the
sister. No magistrate could ever discover or be informed which
way any of these wretches died, or that they ever were baptised.
Many murders have been discovered among them; and they are
not only a most unspeakable oppression to poor tenants (who,
if they give not bread, or some sort of provision, to perhaps
forty such villains in one day, are sure to be insulted by them),
but they rob many poor people who live in houses distant from
any neighbourhood. In years of plenty, many thousands of them
meet together in the mountains, where they feast and riot for
many days; and at the country weddings, markets, burials, and
other the like public occasions, they may be seen, both men and
women, perpetually drunk, cursing, blaspheming, and fighting
together."3
1846. The object of the earlier statute law of Scotland, beginning
with the reign of James I.,4 is not so much to provide for
the necessitous poor, as to suppress the disorderly gangs of whom
Saltoun speaks, who are described as "maisterful beggars and
1 The number of registered poor on 14th May 1857 was 69,217; and the whole
number of registered and casual poor relieved during the previous year was
125,167. The population since 1698 must have more than quadrupled.
2 As an opponent to the Union, Fletcher was bound to make the best of former
times.
3 The condition of England, a century earlier, is described as having been ex
tremely similar. — Strype's Annals, vol. iv., No. ccxiii.; Dunlop, p. 6.
4 1424, c. 7.
sornares, that dailie oppressis and herryis the kingis lieges;"1
and of whom we are told that they were in the habit of going
about with "horse, houndes, and uther gudes." The permission
to beg, it is true, was given to the poor by the first enactment,
and it was continued, under various regulations, "to
cruiked folk, seik folk, impotent folk, and weak folk."2 It was
for their benefit, too, that in the time of James V.3 the system of
tokens was introduced, and each beggar was confined, in the
exercise of his vocation, to the parish of his birth.
1847. But the most important of the earlier statutes, and that
which forms the basis of our present poor law, was passed shortly
after the accession of James V1.4 After repeating the penalties
of former Acts against the classes of persons above described —
amongst whom are included "vagabond schollers of the Universities
of St Andrews, Glasgow, and Abirdene, not licensed by
the Rector and Deane of Facultie of the Universities to aske
almes" — the Act goes on to impose an assessment for the support
of "pure, aged, and impotent persons." "Provosts, baillies,
and judges in the parochinis to landwart, and sic as they sail
call to them to that effect," are instructed "to tax and stent the
hail inhabitants within the parochin, according to the estimation
of their substance, without exception of persons, to sic oukly
(weekly) charge and contribution, as sall be thought expedient
and sufficient to susteine the saidis pure peopil." This taxation
is directed to be renewed from year to year; but it is said that
no assessment was actually imposed for upwards of a century
afterwards.5
1848. The management of the poor was transferred to the
kirk-sessions and heritors of parishes by subsequent statutes;6
1 1477, c. 77. 2 1503, c. 70.
3 1535, c. 22. 4 1579, c. 74.
5 Smith's Digest of the Poor Law, p. 87.
6 1592, c. 149; 1597, c. 272; and 1672, c. 18.
and in Charles the Second's time the residential settlement of
three years, which continued till 1845, was introduced.
1849. In addition to our statute law, there are various proclamations
of the Privy Council of Scotland, which had been entrusted
with something approaching to legislative powers in the
matter, and whose directions were subsequently ratified by
statute.1
1850. The provisions contained in the whole of these statutes
and proclamations divide themselves into two classes — the one
relating to the punishment and latterly to the employment of
vagabonds, and possessing throughout a penal character; the
other having reference to the support of the aged and impotent
poor. The former class, which probably never were very systematically
enforced, "may now be considered as in total desuetude;"2
the latter contained the provisions for the relief of the
poor, which remained unchanged till the passing of the recent
Act "for the amendment and better administration of the laws
relating to the relief of the poor in Scotland,"3 and which, where
unaffected by that statute, are still in force.
1851. The main provisions of this important statute are —
1852. (1.) The establishment of a central Board of Supervision,
with one paid member and a secretary, with full powers to
inquire into the condition of the poor and to make annual reports
to the Secretary of State. The Board is further entrusted with
certain limited powers of control over the parochial boards and
their inspectors, such as the suspension and dismissal of these
officers.
1853. (2.) The institution of a new parochial board in place
of the heritors and kirk-session in all parishes in which an assessment
has been levied. This board is to consist of the proprietors
of heritage in the parish of above L.20 of yearly value,
1 1698, c. 21. 2 Dunlop, p. 25.
3 8 and 9 Viet., c. 83, 4th August 1845.
together with members elected by the other rate-payers, and
delegates from the kirk-session.
1854. (3.) The provision that no court of law shall entertain
or decide any action relative to the amount of relief granted by
parochial boards, unless the Board of Supervision shall previously
have declared that there is a just cause of action, in which case
the pauper shall be entitled to the benefit of the Poor's Roll in
the Court of Session. The jurisdiction of the parochial board in
reference to administering the funds, ordering and disposing of
the poor, and determining the amount and nature of the relief to
be given in each particular instance, is thus exclusive of every
other in the first instance.
1855. (4.) The most important variation on the previous law,
is the extension of the period necessary to acquire a settlement
by residence to four years, and the introduction of the principle
that residential settlements may be lost by non-residence alone1
for more than four years.
1856. (5.) The provision for the removal of English and
Irish paupers, and for their criminal prosecution on their return,
under the statute 1579, c. 74.
1857. (6.) The provision for prosecution, under the same Act,
of husbands deserting their wives, and of mothers and putative
fathers refusing to maintain their illegitimate children.
1858. (7.) The right given to all destitute persons to claim
interim maintenance from the parishes in which they become destitute,
until the parish or combination to which they belong has
been ascertained.
1859. (8.) The provision for the union of parishes under the
authority of the Board of Supervision.
1860. (9.) Each parish or combination must appoint an inspector,
in whose name all law proceedings connected with the
poor proceed.
1 Infra, p. 344.
1861. The existence of several excellent manuals on the subject
of the Poor Law, intended and suited for popular as well as professional
use,1 render it unnecessary that we should do more than
add to the above sketch such information as may serve for the
practical guidance of such non-official persons as may interest
themselves in the condition of the poor.
1862. Application for Relief. — The inspector of the poor in the
parish in which the pauper happens to be resident for the time
being, or the inspector of the district, if the parish has been so
divided, are the persons to whom respectively application is to be
made when a case of destitution occurs. It is not necessary that
such application be in writing.
1863. The inspector is bound to give interim relief, or to
state his reasons for refusal, within twenty-four hours. If he
provide the necessary support in the meantime, he may delay his
decision for such time as may be required for investigation.
1864. If a pauper be refused relief altogether, he is entitled to
apply to the Sheriff; but if his complaint be, not that he has been
refused relief, but that the relief granted to him is inadequate, the
Sheriff has no power, and he must go to the Board of Supervision.
1865. Medical Attendance and Education. — By sec. 69, parishes
are required to provide medical relief to the poor, and education
for poor children.
1866. Persons entitled to Relief. — (1.) Poor persons of seventy
years or upwards, or under that age, if so infirm as to be unable
to gain a livelihood by their work.
1867. (2.) Orphans and destitute children under fourteen years
of age, whether legitimate or illegitimate.
1868. (3.) All who, from permanent bodily disease and debi1
1. The Law of Scotland regarding the Poor, by A. M. Dunlop, advocate,
Edition 1854.
2 Poor Law Manual for Scotland, by A. M'Neil Caird, Esq. 1851.
3 Digest of the Law of Scotland relating to the Poor, by J. Guthrie Smith,
advocate. 1859.
lity, are unable to work. "It is not necessary, to entitle such
persons to relief, that they should be totally incapable of performing
any work whatever;" it is sufficient that they be unable
to work so as to gain a livelihood, and that they "must of necessity
be sustained by almes."1
1869. Destitute widows and deserted wives with children are
entitled to claim; and, in case of refusal, the onus of establishing
that they are able to support themselves and their children and
consequently are not proper objects of relief, lies on the parish.
1870. Idiots and insane persons are entitled to support.
1871. The Act to amend the Lunacy Act of 1857,2 contains
a provision to the effect that it shall be lawful for the Commissioners
in Lunacy for Scotland to grant to the governors or
keepers of poor-houses licenses for the reception of pauper lunatics
in wards set apart for that purpose, or in detached or
separate portions of such poor-houses so set apart and licensed,
subject to such rules, regulations, and restrictions as may be
framed by the General Board of Commissioners in Lunacy for the
reception and treatment of patients in such wards or portions of
poor-houses, consistently with the provisions of the former Act.
This Act to continue in force for five years from 1st January
1858; a provision which may give rise to some difficulty, seeing
that when the Act came into operation a portion of the time was
already past.
1872. Foreigners who have acquired a settlement in this country
are, equally with natives, entitled to demand permanent relief
from the parish of their settlement, or interim relief till that
parish is ascertained, or they have been enabled to leave the
country. None but English and Irish paupers can be compulsorily
removed;3 and a foreigner returning, whose passage had
been paid by the inspector, would be entitled again to claim
1 Dunlop, p. 29. 2 21 and 22 Vict, e. 89 (2d August 1858).
3 8 and 9 Vict., c. 83, secs. 77-8-9.
relief, and would not be liable to the penalties imposed upon
English or Irish paupers returning.
1873. Occasional Relief. — The general, if not the exclusive
object contemplated in the Scottish statutes, was the relief of
those permanently disabled. But, though not imperative, the
necessity of the case had introduced into almost every parish the
practice of affording relief to persons labouring under temporary
sickness.
1874. The right of such persons to relief is now established
by the section of the recent statute which provides, that "all
assessments imposed and levied for the relief of the poor shall
extend and be applicable to the relief of occasional as well as
permanent poor" (sec. 68).
1875. The same section provides, that "nothing herein contained
shall be held to confer a right to demand relief on able-bodied
persons out of employment;" leaving it, of course, an open
question whether such right existed prior to that statute. The
question as to whether this right existed under the former statutes,
or at common law, which had given rise to much difference of
opinion, was deliberately decided in the negative by the Court in
the case of two able-bodied men, one claiming for himself, the
other for behoof of his children; and as this judgment of the Court
was affirmed by the House of Lords on appeal, the point is placed
beyond the reach of further discussion.1
1876. The fact of the pauper being possessed of a small
pittance, such as an annuity from a charitable association or the
like, will not affect his claim, if it be inadequate to his support.
But the reverse is the case if he either possess property or a
vested interest, from the sale of which funds sufficient for his
support can be realised; or if he have relations in such circumstances
as to be able, and in such near degree as to be bound, to
1 Adams v. McWilliam, and Thomson v. Lindsay. February 27. 1849 (11
S. R., 2d ser., 719).
support him. In the latter case, however, the pauper will be
entitled to temporary relief pending an action against his relatives.

1877. Relatives bound to relieve. — As this subject has already
been treated under the relations of Husband and Wife and
Parent and Child, a very brief recapitulation will here suffice.
1878. (1.) A father is bound to maintain his children, whether
legitimate or illegitimate, so long as they are unable to work,
whether the incapacity proceed from infancy, disease, idiocy, or
any other cause. This obligation extends to a daughter-in-law
during her husband's life; but not to the widow of a son.
1879. (2.) The mother, but not the stepmother.
1880. (3.) The paternal grandfather, and other paternal ascendants.

1881. (4.) Sons-in-law are not bound to support their parents--
in-law, unless their wives have a separate estate.
1882. (5.) Failing paternal ascendants, the burden of maintaining
legitimate children falls on those of the mother.
1883. (6.) Children are liable to maintain their parents, and
other ascendants; and in the unusual case of the pauper having
both a father and a son capable of maintaining him, the burden
lies primarily on the son. The offer of the son to receive the
father into his family is not sufficient, if he is able to give him a
separate aliment;1 but the reverse is the case where the father
offers to receive the son.
1884. (7.) Collaterals are not bound to aliment each other.
1885. (8.) Husbands. — The highest of all obligations is that
which lies on the husband to aliment his wife. We have already
mentioned2 that husbands and fathers deserting their wives and
children are liable to be prosecuted criminally, at the instance of
the parish on whom the deserted wives or children have become
a burden, under the late statute (sec 80).
1 Jackson v. Jackson, 17th November 1825. 2 Ante, p. 339.
1886. (9.) Bastarcls. — The parents are mutually bound to
support illegitimate children; the custody during infancy being
with the mother.
1887. But the bastard is not bound to maintain his supposed
father, and has no claim against his remoter ascendants, — not
being, in the eye of the law, a member of their family.
1888. Settlement. — The law of settlement has given rise to so
many questions of extreme nicety as to the construction of the
late and previous statutes, that an incomplete statement of it
would be likely only to mislead.
1889. The general rules are:— That children follow the settlements
of their parents, and wives and widows those of their
husbands; that continuous, though not necessarily uninterrupted
industrial residence for five years, gives a claim on the parish in
which the industry has been exercised; and that liability rests, in
the last resort, with the parish in which the pauper was born.
1890. Besides increasing the period of residence from three to
five years, the recent statute introduced another very important
change by declaring that it should be forfeited by mere non-residence
and lapse of time; whereas, by the former law, a residential
settlement, once acquired, could never be lost except by
the acquisition of another.
1891. The following is the well-known section of the Act by
which the subject of residential settlements is regulated:— "Be
it enacted that from and after the passing of this Act, no person
shall be held to have acquired a settlement in any parish or combination
by residence therein, unless such person shall have resided
for five years continuously in such parish or combination,
and shall have maintained himself without having recourse to
common begging, either by himself or his family, and without
having received or applied for parochial relief; and no person
who shall have acquired a settlement by residence in any parish
or combination shall be held to have retained such settlement
if, during any subsequent period of five years, he shall not have
resided in such parish or combination continuously for at least
one year: Provided always, that nothing herein contained shall
be held to affect those persons who, previous to the passing of
this Act, shall have acquired a settlement by virtue of a residence
of three years, and shall have become proper objects of parochial
relief."
1892. The proviso at the end of the section has been held to
apply only to paupers possessing settlements who were proper
objects of relief at the date of the Act (4th August 1845) — that
is to say, who either were on the roll, or entitled to be placed on
it, at that date.
1893. Funds for Supplying Relief — These arise from two
sources, — 1st, Voluntary contributions, mortifications, and the
like; 2d, Assessments.
1894. Though compulsory assessments were introduced so
early as 1579, the principal fund for the relief of the poor, till a
recent period, arose from voluntary contributions.
1895. But a change in this respect, which had been long in
progress, has been operated of late with great rapidity. "So
ample were the voluntary contributions of the people,"1 says Mr
Smith,2 "that, prior to the year 1700, there were only three
parishes assessed; and down to the beginning of the present
century the number did not amount to one hundred." In
1845, when the Poor Law Act was passed, there were still only
230 assessed, and 650 unassessed; there are now 729 assessed,
and only 154 unassessed.
1896. Church-door collections form the major part of the voluntary
contributions for the relief of the poor. — By the proclamation
of the Privy Council of 1693, it was ordained that onehalf
only of the sums collected at the church-doors, or otherwise
made by the kirk-session, should be paid into the general fund
1 Or so shameful the neglect of the poor ? 2 Digest of the Poor Law, p. 87.
for the relief of the poor. No directions were given as to the
application of the other half; but by almost invariable practice
it had come to be applied to the purposes of occasional or temporary
relief.
1897. On this subject it is enacted by the Poor Law statute,1
that, "in all parishes in which it has been agreed that an assessment
should he levied for the relief of the poor, all moneys arising
from the ordinary church collections shall, from and after the date
when such assessments shall have been imposed, belong to and be
at the disposal of the kirk-session of each parish: Provided always,
that nothing herein contained shall be held to authorise the kirk--
session of any parish to apply the proceeds of such church collections
to purposes other than those to which the same are now,
in whole or in part, legally applicable." It is said that under
this section the whole collections are now under the entire control
of the kirk-session;2 but the point seemed doubtful to Mr
Dunlop,3 and it does not seem to have been formally decided.
1898. The practice, according to Mr Smith, is in some cases to
hand over the proceeds to the parochial board for disposal; but
"in the great majority of instances, the sums collected are dispensed
by the kirk-sessions themselves to the poor of their respective
parishes. The persons, however, so assisted are for the
most part of a different class from the poor actually chargeable
to the parish, being generally individuals who have fallen into
temporary difficulties, or become otherwise fit objects of public
charity."4
1899. Where no assessment has taken place, the former arrangements
remain in force.
1900. Assessments. — The 34th sec. of the Poor Law Act provides,
that the parochial boards may resolve that the funds requisite
for the relief of the poor shall be raised by assessment, and
the 35th sec. prescribes three modes in which it may be raised.
1 8 and 9 Vint., c. 83. 2 Smith, p. 30. 3 p. 83. 4 Smith, p. 83.
1901. 1st, It shall be lawful for such Board to resolve that
one-half of such assessment shall be imposed upon the owners,
and the other half upon the tenants or occupants of all lands and
heritages within the parish or combination, rateably according to
the annual value of such lands or heritages; or 2d, to resolve
that one-half of such assessment shall be imposed upon the
owners of all lands and heritages within the parish or combination,
according to the annual value of such lands and heritages,
and the other half upon the whole inhabitants, according to their
means and substance, other than lands and heritages situated in
Great Britain and Ireland; or 3d, to resolve that such assessments
shall be imposed as an equal percentage upon the annual
value of all lands and heritages within the parish or combination,
and upon the estimated annual income of the whole inhabitants
from means and substance, other than lands and heritages situated
in Great Britain or Ireland.
1902. The mode adopted (in the vast majority of parishes it
has been the first) must be approved by the Board of Supervision
(sec. 34).
1903. In addition to the three modes thus offered to the
option of parishes, it is provided that the assessment may continue
to be imposed according to any local Act or established
usage, if approved by the Board of Supervision (sec. 35).
1904. Superintendents. — By the Poor Law Amendment Act of
1856,1 the Board of Supervision is empowered to appoint two
general superintendents to assist in the execution of the former
Act; and such appointments have been made, and are now in
operation.
1 19 and 20 Vict., c. 117.
BOOK III,
OF THE MACHINERY OF THE LAW.
AN outline of the legal rights and obligations of Scotchmen
having now been presented to the reader, as they affect, first, the
members of the same family, and second, the members of the
general community in their private relations, we have now to
consider briefly, in the third place, the methods by which these
rights and obligations are ascertained in particular cases, and
the means by which they are enforced by the State.
CHAPTER I.
OF THE SUPREME COURTS AND JUDGES OF SCOTLAND.
The Court of Session.
1905. The Court of Session is the highest civil tribunal in
Scotland. It was instituted in the reign of King James V., by
an Act of Parliament, bearing date the 17th May 1532, for the
purpose of discharging the judicial functions which had originally
belonged to the King and his Council, and which, since the year
1425, had in a great measure devolved on a committee of the
Parliament itself, as the great Council of the nation.
1906. The new court consisted originally of fourteen ordinary
judges, half spiritual and half temporal,1 and a president, who
in the first instance was a churchman, and who was appointed
to act as chairman, except when the Lord Chancellor was
present.
1907. The King reserved to himself the privilege of appointing
other lords or members of his great Council, to the number
of three or four, to sit and vote with the Lords of Session.
1908. The office of Chancellor of Scotland was abolished at
the Union in 1707; and the habit of appointing peers to take
part in the deliberations of the judges has long since fallen into
abeyance, though, when a peer chances to be present, he is
still accommodated with a seat on the bench, as a mark of
courtesy.
1909. From its foundation, down to the year 1808, the Court
of Session consisted of one tribunal. In that year, in consequence
of "the great extension of agriculture, commerce, manufactures,
and population," it was divided into two separate
courts, called Divisions, with co-ordinate jurisdiction2 The
Lord President, who continued to enjoy the rank and dignity of
president of the whole Court, and who still discharges very important
functions in that capacity, with seven of the ordinary
judges, formed the First Division, and the Lord Justice-Clerk,
with six of the ordinary lords, the Second Division.
1910. In 1810, the three junior ordinary judges of the First
Division and the two junior ordinary judges of the Second
Division were relieved from attendance in the Inner House, and
appointed to sit as permanent Lords Ordinary in the Outer
House; the quorum in either Division, which had formerly been
four, being now reduced to three.
1911. In 1830, the number of judges of the Court of Session
1 The practice of appointing churchmen to the bench did not cease immediately
after the Reformation. — Erskine, vol. i., p. 56.
3 48 Geo. III., c. 151.
was reduced to thirteen;1 and the present staff consists of the
Lord President, the Lord Justice-Clerk, and eleven ordinary
judges.
1912. Of these thirteen judges, four sit in the First Division
of the Inner House, viz., the Lord President and three ordinary
judges; four in the Second Division of the Inner House, viz.,
the Lord Justice-Clerk and three ordinary judges; and the remaining
five judges officiate in the Outer House as Lords Ordinary,
four sitting daily.
1913. All ordinary causes are tried in the Outer House in
the first instance. The jurisdiction of the Outer House is subordinate
to that of the Inner House, except where it has been
specially provided by Act of Parliament that the judgment of a
Lord Ordinary shall be final.
1914. The last appointed Lord Ordinary officiates in what is
called the Bill Chamber, a department of the Outer House in
which summary petitions and applications, and other branches of
business requiring unusual dispatch, are disposed of; such as suspensions
of decrees or of diligence, and suspensions and interdicts
of threatened wrongs. An interim interdict, by which the proceeding
complained of is arrested till its true nature can be inquired
into and discussed by both parties, is granted on the applicant
making out an ex facie case of injury to the satisfaction of
the Lord Ordinary, and becoming responsible for any injury
which may be occasioned by the interdict, should it be ultimately
recalled. In general, he has also to find caution for the expenses
of the process.
1915. The Bill Chamber is open in vacation, — the judges, with
the exception of the Lord President and Lord Justice-Clerk, officiating
in rotation.
1916. It is competent to the judges of either Division, in any
cause in which they shall be equally divided in opinion, to direct
1 1 wn. Iv., c. 69.
such cause to be judged by the Inner House judges of both
Divisions.1
1917. In cases of great difficulty and importance, a hearing in
presence, as it is called — i.e., a discussion before the whole thirteen
judges — may be ordered; and this is the most solemn proceeding
by which a cause can be disposed of in Scotland.
1918. The judges of the Court of Session hold their office ad
vitam aut culpam. They are appointed by the Crown. No
one is eligible who has not served as an advocate or principal
clerk of Session for five, or as a writer to the signet for ten
years. In practice, the judges are invariably chosen from the
bar.
1919. Jurisdiction. — As the Court of Session was not intended
for the decision of trifling causes, the general rule is, that
no action for debt can originate in that Court in which the interest
of the pursuer is under L.25. In all questions of personal
status and competitions relative to heritage, as well as declarators
of right to it, the Court of Session has a privative jurisdiction;
and, generally speaking, even as regards claims to moveables,
cases of the most trifling amount, unless decided under the
Small Debt Acts, may be brought before the Court of Session by
suspension.
1920. As a general rule, the judgments of all the inferior
courts of Scotland, except the Small Debt Courts, are subject
to review in the Court of Session. There are, however, many
statutory exceptions.
1921. Where the facts of the case have been exhausted in an
inferior court, and the cause is ripe for judgment, it may be
carried at once to the Inner House of the Court of Session without
being discussed before a Lord Ordinary.1
1922. The judgments of the Inner House of the Court of
Session may be reviewed in the House of Lords.
1 13 and 14 Vict., c. 36, sec. 25. 2 13 and 14 Vict., c. 36, sec. 32.
1923. It is incompetent to appeal directly from the interlocutor
of a Lord Ordinary, unreviewed by the Inner House.
1924. Unless there are reasonable grounds for delay, a petition
of appeal must be presented in the House of Lords within
two years after decree in the Court of Session; and it must be
signed by two counsel, who must certify that, in their opinion,
the appeal is not groundless.
1925. Questions of Fact. — However it may have stood in former
times,1 there can be no doubt that, from the institution of the
Court of Session in 1532 till the institution of the Jury Court in
1815,2 the judges of Session were judges of fact as well as of
law; and their original number of fifteen, corresponding to that
of a Scottish criminal jury, is supposed to have been fixed upon
in order that they might represent the Parliament in its capacity
of the great jury of the nation.
1926. Lawand Equity. — The distinction between law and equity
in the English sense has never been admitted in Scotland; and the
judges of the Court of Session are consequently judges of both.
1927. The College of Justice includes not only the judges who
are properly styled senators, but advocates, clerks of Session,
writers to the signet, and all other practitioners and officials connected
with the Court of Session including the Court of Exchequer.
1928. Till recently, the members of the College of Justice were
exempted from almost all local taxes and burdens, and possessed
many other privileges, — all of which have now been either voluntarily
relinquished or withdrawn by statute, except the privilege
of exemption from the tax for the support of the Established
clergy in the city of Edinburgh, called the annuity tax.
1 The view that, in Scotland, as in all the other nations of Europe, jury trial
existed at a very early period, has been supported by legal antiquaries on very
plausible grounds. Ivory's Forms of Process, vol. ii., p. 259 et seq., and works
there referred to.
2 55 Geo. III, c. 42.
Of the other Departments of the Court of Session.
I.—The Jury Court.
1929. From its institution in 1815, down to the year 1830, the
Jury Court was a judicial establishment altogether separate
from the Court of Session.
1930. It consisted of one chief and two ordinary judges, — the
latter being at the same time judges of the Court of Session.
Their title was "The Lords Commissioners of the Jury Court in
Civil Causes."
1931. The object of the Jury Court was to dispose of such
questions of fact as might be remitted to it from the Court of
Session, or the Court of Admiralty, which then also existed as a
separate tribunal.
1932. The whole arrangements of the Jury Court were borrowed
from England, even to the number of the jury itself, —
which is still twelve in place of fifteen, as in the criminal jury of
Scotland, — and the unanimous verdict, which has only been
abolished within the last few years.1
1933. As the first statute2 by which it was introduced was
regarded merely as sanctioning an experiment, it was declared
to have force for only seven years.
1934. Four years afterwards a second Act was passed,3 which,
proceeding on the preamble that "the extension of trial by jury
to civil causes has been attended with beneficial effects to the
administration of justice," permanently established the Court, and
enlarged the sphere of its jurisdiction.
1935. The institution was further enlarged, and altered in some
respects, in 1825.4
1936. In 183051 the Jury Court was incorporated with the
1 17 and 18 Vict., c. 59 (1854), infra. 357. 2 55 Geo. III., c. 42 (1815).
3 59 Geo. III., c. 35 (1819). 4 6 Geo. IV., 120.
5 1 Will. IV., c. 69.
Court of Session, and it is now to be regarded merely as the department
of that Court in which questions of fact are disposed of.
1937. Jury trials, however, differ from the other branches of
business in the Court of Session in this, that they may take
.place in any circuit town, either before one of the judges of the
Court of Justiciary (who are always judges of Session also) when
on circuit, or before any other judge or judges of the Court of
Session whom either Division may appoint.
1938. Any question of fact which emerges in the course of an
action may be sent to a jury; but the classes of cases specially
appropriated to jury trial are the following:— All claims for
damages on account of injuries done to the person; for libel or
defamation; for injury to moveables or lands where the title is not
in question; for breach of promise of marriage, seduction, or adultery;
and all actions founded on delinquency, or quasi delinquency,
of any kind, where the conclusion is for damages or expenses
only.1 To this list were subsequently added2 actions against
ship-masters, carriers, innkeepers, and stablers; all actions for
nuisances, for reduction of deeds on the ground of incapacity on
the part of the granter; all actions on policies of insurance, charter
parties, bills of lading, and the like; and actions for the wages of
seamen. Causes determined by the Court of Session, and appealed,
are sometimes remitted by the House of Lords, with
instructions to send issues to a jury.
1939. In 1850 several very important changes were made in
the arrangements for determining questions of fact in the Court
of Session. By the "Act to Facilitate Procedure in the Court
of Session"3 of that year, it is provided,4 that, "if the parties in
a cause in which an issue has been adjusted shall consent to the
Lord Ordinary before whom the cause depends trying such
issue without a jury, such Lord Ordinary shall, unless the
1 59 Geo. III., c. 35, sec. 1. 2 6 Geo. 1V., c. 120, sec. 28.
3 13 and 14 Vict., c. 36. 4 Sec. 46.
Court, on the report of such Lord Ordinary, shall deem it
inexpedient and improper, try such issue without a jury."
Within eight days after the proceedings at the trial are concluded,
the Lord Ordinary is directed to pronounce an interlocutor,
stating "specifically what he finds in point of fact."
Such findings in fact may be brought by either party before the
Lord Ordinary himself for reconsideration, and he may either
correct them or order a new trial; but they can be submitted
to the review of the Inner House only on the ground that
he has committed an error in law.
1940. It is, besides, rendered competent for the Lord Ordinary,
even without the formality of adjusting issues, to pronounce
an interlocutor, setting forth distinctly any question or questions
of fact which may have arisen in the course of a suit depending
before him, and to direct the parties to conduct a proof before
him on these specific points. In this case, as in the case of
issues being adjusted, his findings are final, under the conditions
and limitations just explained.
1941. Still further to facilitate the disposal of questions of fact,
the Lord Ordinary, with consent of both parties or on the motion
of one party, and with the leave of the Inner House, may order
evidence to be taken by commission in any cause not strictly
belonging to those set apart by statute for jury trial.
1942. In order to extend the benefits of arbitration, and in
some measure to combine them with those of jury trial, it is provided2
that parties, by consent, may refer any issue to one,
three, five, or seven arbiters, who shall be sworn, and act in
every respect as a jury. No new trial is to be granted on the
ground of miscarriage in fact; and if granted for error in law, it
is appointed to take place before the same arbiter or arbiters.
1943. The Verdict. — The statute to which we already referred3
as abolishing the unanimous verdict of the English
1 6 Geo. IV., c. 120. 2 Sec. 50. 3 17 and 18 Vict., c. 59 (1854).
jury, provides that, "if the jury are unable to agree upon a
verdict, and if, after having been kept in deliberation for six
hours, nine of the said jury shall agree, the verdict so agreed to
shall be returned as the verdict of the jury;" and further, that
"during the said period they may be furnished with necessary
refreshment by leave of the judge."
II. — Court of Exchequer.
1944. The ancient Court of Exchequer, like the modern Jury
Court, has recently been absorbed by the Court of Session.
1945. In 1856 it was enacted that the "whole power, authority,
and jurisdiction belonging to the Court of Exchequer in
Scotland shall be transferred to, and vested in, the Court of
Session, and the Court of Session shall be also the Court of
Exchequer in Scotland."
1946. As the previous constitution of the Court of Exchequer
has thus become a matter of mere historical interest, a very
brief notice of it will suffice.
1947. By the Treaty of Union, in 1707,1 it was provided that
the Revenue Court of the Kings of Scotland should continue to
exist as then constituted, till a new court could be established
by an Act of the Parliament of Great Britain. This object was
effected almost immediately,2 and the new Court of Exchequer
came into operation on the 1st May 1708. It was formed
after the model of the Court of Exchequer in England; and the
judges were appointed to be, the High Treasurer of Great Britain,
with a Chief Baron, and four Barons, who were to be either
serjeants-at-law, or English barristers, or Scotch advocates of
five years' standing. All barristers were entitled to practise
before this Court who could plead either in the Courts at Westminster,
or in the Court of Session.
1 Art. 19. 2 6 Anne, c. xxvi.
1948. The Court of Exchequer, as thus constituted, had privative
jurisdiction as to the duties of customs, excise, and other
revenues appertaining to the King or Prince of Scotland, and as
to all honours and estates which might accrue to the Crown, in
which matters the forms of procedure used in the English Court
of Exchequer were, under certain limitations, to be adopted.
Of these limitations the most important was, that no debt due
to the Crown should affect the debtor's real estate in any other
manner than as such estate might be affected by the laws of
Scotland.
1949. Where trial by jury took place, it was appointed that
the number of jurors should be twelve, as in England.
1950. The judgments of the Court of Exchequer were carried
to the House of Lords by the English form of writ of error.
1951. The whole superintendence of the feudal property of the
Crown in Scotland was also entrusted to this Court; and, as a
necessary consequence, the duty of revising and passing the
titles of the King's feudal vassals.
1952. The Court further acted as a board for controlling and
auditing the accounts of the revenue.
1953. This latter branch of the duties of the Court was transferred
to England in 1832, and all accounts relating to the
revenue were appointed to be examined, comptrolled, and audited
by the Comptroller and Auditor of Excise of the United Kingdom.1
It was declared that the jurisdiction of the Exchequer as
a court of law should not be affected by this statute, and that all
debts, duties, and revenues of customs or excise should be recoverable
as heretofore.
1954. By a previous Act of the same year, however, that
series of changes was commenced which afterwards issued in the
abolition of the Court of Exchequer as a separate court. In
imitation of the Act2 for abolishing the Jury Court, and uniting
1 2 and 3 Will. IV., c. 103, 11th August 1832. 2 1 Will. IV., c. 69.
the benefits of jury trial in civil causes with the ordinary juris-diction
of the Court of Session, and in further pursuance of the
principle of simplifying and reducing the judicial establishments
of Scotland which that enactment had introduced, it was now provided1
that no successor be appointed to the Chief Baron, or to
the one ordinary Baron whom the Act just mentioned had substituted
for the four who constituted the original court; and
that, on their decease or retirement, their duties should devolve
on a judge of the Court of Session, who should be entitled to
an addition to his salary of L.600 a year.
1955. The recent Exchequer Act,2 by which the Court of Exchequer
became in reality the revenue department of the Court
of Session, thus effected little more than had been previously determined
on. Several important changes in the mode of procedure
were, nevertheless, introduced for the first time. The English
forms and terminology hitherto used in the Court of Exchequer
were assimilated to those of the Court of Session; and it was
provided that interlocutors in Exchequer causes pronounced by
the Lord Ordinary, on whom the chief duties were now devolved,
may be reclaimed against to the Inner House, and that Inner
House judgments in Exchequer causes may be carried to the
House of Lords by appeal, as if they had been pronounced in
ordinary Court of Session causes. It had previously3 been enacted,
that costs may be given either for or against the Crown; but the
old preference of the Crown over other creditors was retained,
and the "privilege of audience," as it was called, or the right to
be heard last, was preserved to the Lord Advocate when pleading
on behalf of the Crown, whether before the Court or a jury.
1 2 Will. IV., c. 54, 23d June 1832.
2 19 and 20 Vict., c. 55 (1856), ante, p. 357.
3 18 and 19 Vict., e. 90 (1855).
III — Of the Teind Court.
1956. The judges of the Court of Session sit in the Teind
Court every second Wednesday during session, in the capacity
of Parliamentary commissioners for the valuation of teinds, and
for their application to the support of the Established Church
and clergy of Scotland.
1957. In 1617, a commission of the Parliament of Scotland
was appointed to plant churches and modify stipends for the
Reformed clergy out of the tithes of every parish in the kingdom.
Other commissions were subsequently appointed with the same
object, and with additional powers. They were authorised to
unite and disjoin parishes, to value and sell tithes, to augment
stipends, to build new churches, and the like.
1958. By the Act of Union, in 1707, the powers of the last
of these commissions, and of all the previous commissions, were
transferred to the judges of the Court of Session.
1959. The Teind Court, though it meets in the same place,
and is presided over by the same individuals, is nevertheless distinct
from the Court of Session, having a special jurisdiction,
and a separate establishment of clerks and other officials.
1960. The judgments of the Court of Teinds may be carried
by appeal to the House of Lords.
1961. The Teind Court has no power to enforce its own
decrees. This is done by the intervention of the Court of Session.
1962. By the Judicature Act of 1825,1 a distinction was drawn
between the ministerial and the judicial functions of the Court
of Teinds. The former, comprising all the discretionary powers
formerly vested in the Court, were left on the previous footing;
whilst the latter, in all their departments, were transferred to the
Court of Session, and are now conducted, as far as possible, like
ordinary actions. They are allotted to the Second Junior Lord
1 6 Geo. IV., c. 120, sec. 54.
Ordinary, whose judgments are subject to review in the Timer
House.
IV. — Of the Ancient Court of Admiralty.
1963. The ancient Court of the High Admiral,1 who was the
King's Justice-General upon the seas, possessed supreme jurisdiction,
both civil and criminal, in all strictly maritime and seafaring
causes. In civil cases this Court possessed power to
review its own decrees, but its judgments could not be carried
by advocation to the Court of Session. In criminal cases, even
where the crime had been committed on shipboard, if it was not
an offence against the laws of navigation, the jurisdiction of the
Court of Admiralty was cumulative with that of the Court of
Justiciary. Piracy and mutiny on shipboard were thus exclusively
cognisable in the Court of Admiralty, whilst murder even at sea
might be competently tried in the Court of Justiciary.
1964. This cumulative jurisdiction of the Court of Justiciary
was, in 1828, extended to "all crimes and offences whatsoever
now competent to be tried in the Court of Admiralty."2
1965. In 1830,3 the Court of Admiralty was abolished. its
civil jurisdiction in cases exceeding L.25 was transferred to the
Court of Session, whilst those under this amount became competent
in the inferior courts. A corresponding arrangement was
made regarding its jurisdiction in crimes; those of a serious
nature being handed over to the Court of Justiciary, whilst those
of a lighter sort were made competent in the Sheriff Courts.
1966. By the Judicature Act,4 in 1825, the jurisdiction of the
High Court of Admiralty in Scotland, in questions of prizes and
captures, had already been vested in the High Court of Admiralty
in England.
1 1681, c. 16, and 1690, c. 15. 2 9 Geo. IV., c. 29, sec. 16.
3 11 Geo. IV., and 1 Will. IV., c 69. 4 Geo. IV., c. 120, sec. 57.
1967. The duties of the Lord High Admiral were in practice
performed by a deputy, who was called the Judge of the High
Court of Admiralty.
V. — Of the Ancient Commissary Court.
1968. The Supreme Commissary Court, which held its sittings
in Edinburgh, consisted originally of four judges. It was
established by a royal grant of Queen Mary, dated February 8,
1563, and had jurisdiction in actions of divorce, declarators of
marriage, nullity of marriage, and all actions which originally
belonged to the Bishops' Ecclesiastical Courts.
1969. Its powers having been gradually conjoined with those
of the Court of Session, it was finally abolished in 1836;1 what
remained of its jurisdiction, which has been still further abridged
by two subsequent statutes,2 being vested in the Sheriff of Edinburgh.

1970. In 1823,3 the inferior commissariots, which had usually
been commensurate with the dioceses, were abolished, and each
county was declared to constitute a commissariot, the Sheriff
being commissary, excepting the sheriffdoms of Edinburgh, Haddington,
and Linlithgow, which continued to constitute the cornmissariot
of Edinburgh.
1971. By the Judicature Act,4 the counties of Haddington
and Linlithgow were erected into separate commissariots.
1972. "The jurisdiction now left to the Commissary Courts
in Scotland," says Mr Alexander, "is limited to decerning and
confirming executors to deceased persons having personal property
in Scotland, and relative incidental matters, such as applications
for the protection of the property of the deceased till an
1 6 and 7 Will. IV., c. 41.
2 13 and 14 Vict., c. 36 (1850); and 21 and 22 Vict., c. 56 (1858).
3 4 Geo. IV., c. 97. 4 1 Will. IV., c. 69.
executor is confirmed, the exoneration of executors and their cantioners,
applications for restriction of caution, and the appointment
of factors for minors quoad executry funds."1
VI. — Of the House of Lords.
1973. As the highest court of appeal in civil causes, the
House of Lords, in its judicial capacity, may be reckoned
amongst the courts of Scotland.
1974. During the existence of the Scottish Parliament there
was much difference of opinion, and several very serious disputes
arose, as to the competency of appeals, on the ground that the
Court of Session was itself in theory a committee of Parliament.
1975. The right to "protest for remeid of law to the King
and Parliament," however, was formally recognised by the Convention
of Estates at the Revolution; and though, strangely
enough, no provision was made at the Union for appeals to the
British Parliament, the right of the subject was held by implication
to remain intact in this as in other respects; and, consequently,
the duty of dispensing justice in the last resort, which
had formerly rested with the Parliament of Scotland, was regarded
as transferred to that of Great Britain.
1976. Shortly after the Union, accordingly, the forms in use
in appeals from the English and Irish Courts of Equity were
adopted in Scotch causes; and in 1709 it was provided, in
conformity with the English practice, that execution of the
sentences of the Court below should be arrested whilst appeals
were pending.
1977. Till the recent changes there were three courts in Scotland
the judgments of which might be carried directly to the
1 Practice of the Commissary Courts in Scotland, 1858. To the first chapter
of which work the reader is referred for a very interesting sketch of the history
constitution, and jurisdiction of the Commissary Courts.
House of Lords, — the Court of Session, the Court of Exchequer,
and the Court of Teinds. The amalgamation of the Exchequer
with the Court of Sessions has now reduced their number to two.
1978. As to Court of Session eases, the general rule is that
none but final judgments of the Inner House, exhausting the whole
merits of the cause, are subject to appeal; but where leave is
given by the Court, or where the judges have differed in opinion,
it is competent to bring even interim, or interlocutory judgments
as they are called, before the House. When the latter class of
judgments are appealed from, the existence either of one or other
of the reasons we have mentioned must be certified by two
counsel who conducted the case in the Court of Session.
1979. There is no appeal from the sentences of the Court of
Justiciary, nor from the verdict of a jury, even in a civil cause;
though, in the latter ease, it is competent to bring the directions
of a judge in point of law under review of the House of Lords.
1980. The judgments of the House of Lords are carried into
execution by presenting authentic copies of them to the Court
of Session, with a petition praying that they may be applied by
that Court. The procedure is then regulated by the forms of
the Court of Session.
VII. — The Court of Justiciary.
1981. The High Court of Justiciary is the Supreme Criminal
Court of Scotland. It was constituted, in its present form, in
1672.2
1982. Its president is the Lord Justice-General, an official to
whom the criminal jurisdiction formerly vested in the King's
Justiciar was confided after the institution of the College of
Justice. Until recently the office of Justice-General was held
by a nobleman, who was not necessarily a lawyer; but it has
1 Ante, p. 357. 2 1672. c, 16.
now been conjoined with that of Lord President of the Court of
Session.1 In the absence of the Lord Justice-General, the Lord
Justice-Clerk is president of the Court of Justiciary.
1983. Five other Lords of Session, appointed to act as Lords
Commissioners of Justiciary, constitute the ordinary judges of
the Court, three being a quorum.
1984. The Lord-Advocate, the Solicitor-General, and four
Advocates-depute, act for the Crown as prosecutors in the Court
of Justiciary. The private party injured may also prosecute in
his own name; but this mode of proceeding is nearly unknown in
Scotland beyond the precincts of the Police Court, — crimes in
all the higher criminal courts being almost invariably prosecuted
by the public officers of the Crown.
1985. Trials in the Court of Justiciary are always conducted
with the aid of juries, which consist of fifteen men, in place of
twelve as in England, and in civil cases in Scotland; and their
verdicts are returned by a majority, which is also at variance
with the English practice. The verdict of "not proven" is
another feature in which the criminal law of Scotland differs
from that of England.
1986. It is competent for the jury to return a special verdict,
—that is, to find certain facts proven, leaving it for the Court
to determine whether or not they amount to the crime charged;
but verdicts of this kind are now very rarely resorted to. The
practice of the jury writing out their own verdict before delivering
it, has now been abolished; it being found that much
ambiguity is avoided, and the object of the jury more satisfactorily
attained, by intrusting that duty to the clerk of Court. But
written verdicts may still be resorted to on the direction of the
Court, in the case of the jury remaining in deliberation for an
unusual time. Where the written verdict is resorted to in such
circumstances, it is sealed up by the jury, who are then at liberty
1 11 Geo. IV., and 1 Will. IV., C. 69, sec. 18
to disperse.1 But in practice the verdict is almost always delivered
by the foreman of the jury orally; it is then committed to
writing by the clerk, under the eye of the judge, and read over
to the jury for their approval.
1987. No appeal lies to any court from a decision of the Court
of Justiciary; and this applies not only to cases in which the
decision is a fact arrived at with the aid of a jury, but to those
in which it is a point of law determined by the Court.
1988. Neither can the Court of Justiciary review its own
judgments. It has the power of reviewing the decisions of
all inferior criminal courts, though not to the effect of setting
aside the verdict either of an inferior judge or of an assize,
on the ground that it is contrary to evidence. It is regarded
as the province of the jury in all cases, and their province exclusively,
to weigh the evidence submitted to their consideration;
and no process is recognised in Justiciary similar to
the very questionable one of setting aside a verdict as contrary
to evidence in the civil courts. But it is the province of the
Court, on the other hand, to decide whether the evidence laid
before the jury was legal and competent; and it will consequently
inquire into the correctness of a decision of an inferior Criminal
Court which is challenged on the ground of a witness having
been erroneously received, an incompetent question put, or a
document wrongly admitted.
1989. Except in those crimes which are punishable with death,
or to which a statute has attached a particular punishment, the
Court of Justiciary is invested with arbitrary powers, and may
inflict any punishment, from fine to transportation for life.
1990. Peers are amenable to the Court of Justiciary for all
ordinary crimes; but for treason, or any other felony, they can
be tried only by a court of their own order, assembled by the
Lord High Steward.
1 9 Geo. IV., c. 29, sec. 15.
1991. It can neither try soldiers for military, nor clergymen
for ecclesiastical, offences.
1992. The Court has frequently asserted its authority to punish
innominate offences, which, though clearly criminal in their character,
have not been hitherto punished as crimes. This function,
however — treading, as it does, very closely on the borders of legislation
— is one which the Court exercises with very great caution.
1993. The Judges of Justiciary hold circuits twice a year,
in spring and autumn; and for this purpose Scotland is divided
into a Southern, a Western, and a Northern District.1
1994. The Southern Circuit is held at Jedburgh, Ayr, and
Dumfries; the Western at Glasgow, Inverary, and Stirling; and
the Northern at Perth, Aberdeen, and Inverness. A third Circuit
Court for the Western District, for the despatch of criminal business
only, is held at Glasgow during the Christmas recess.
1995. Two judges are usually present in a Circuit Court, but
it is competent for one to sit and despatch business.
1996. There is no appeal from a Circuit Court; but the Court
itself may certify a case commenced before it to the whole Court
of Justiciary for consideration.
1997. Till recently the Circuit Courts exercised an important,
though limited civil jurisdiction; appeals to them from certain of
the inferior courts being competent, when the sum in dispute did
not exceed L.25. The decisions of the judges in these cases were
final. But the Sheriff Court Act2 has restricted this power of
review to cases under the Small Debt Act not exceeding L.12.
1998. In determining whether ordinary offences, such as theft,
shall be tried by the supreme or by the inferior criminal courts,
the officers of the Crown are guided quite as much by the number
of previous convictions against the prisoner as by the extent or
character of his last offence.
1 1672, c. 16. 2 16 and 17 Vict., c. 80, sec. 22.
CHAPTER II.
OF THE INFERIOR COURTS OF SCOTLAND.
I. — The Sheriff Court.
1999. The office of Sheriff is of great antiquity in Scotland,
and the functions assigned to it are supposed to have originated
in those which at an earlier period belonged to the Comes or
Earl in each shire.1 The Sheriff's jurisdiction within his own
district, both in civil and criminal matters, was at first very
nearly as extensive as that of the King's Justiciar over the whole
kingdom. Even previous to the institution of the College of
Justice, however, various causes conspired to limit it, and on that
event it assumed pretty nearly the dimensions which have since
belonged to it.
2000. At present the civil jurisdiction of the Sheriff extends
to all personal actions, — on contracts, bonds, bills, or other
personal obligations, to whatever extent, — to actions of damages,
actions for rent, furthcomings, poindings of the ground, etc. He
may also judge in possessory actions connected with land rights
to the greatest extent; but questions of heritable title,2 whether
tried by declaratory or rescessory actions, are competent only
in the Court of Session; as are also actions, relative to personal
status, — e.g., declarators of marriage, nullity of marriage, divorce,
separation a mensa et thoro, legitimacy, etc., which are now privative
to the Court of Session, as coming in place of the Commissaries
of Edinburgh.
1 The Scirgeréfa, or Sheriff, in Anglo-Saxon times, probably acted as the
deputy of the Ealdorman or Earl in his absence, and as his legal assessor when
he chanced to preside in Court; and it would seem that he stood in the same relation
to the Bishop. — Kemble's Saxons in England, ii., p. 151.
2 Ante, pp. 208, 209.
2001. The Sheriff has extensive duties intrusted to him by the
Bankrupt statutes; and he has many other incidental duties,
both judicial and ministerial, to perform, to which allusion will
be made in the following pages.
2002. The criminal jurisdiction of the Sheriff within his county
was formerly almost unlimited. Latterly, what are called the
four pleas of the Crown — viz., murder, robbery, rape, and wilful
fire-raising — have been considered competent only in the Court
of Justiciary. Having no jurisdiction beyond the limits of his
county, the Sheriff cannot pronounce a sentence of transportation.
2003. Crimes of a serious kind are tried by the Sheriff with
the aid of a jury; the circumstances in which this mode of trial, or
the summary one before himself, are to be made use of, being for
the most part either prescribed by statute, or by the Acts of Adjournal
of the Court of Justiciary. It is not considered "safe to
try any case without a jury, where the charge is of such a kind as
to warrant, if proved, more than sixty days' imprisonment."1
2004. The ordinary prosecutor in the criminal courts of the
Sheriff is the Procurator Fiscal, who stands to them very much
in the same relation that the Lord Advocate does to the Court
of Justiciary.
2005. The principal Sheriff of a county, who is called the
Sheriff-depute, from the notion that he was the deputy of the
Lord-Lieutenant whose office was supposed to correspond to
that of the High Sheriff in England, must be a member of the
bar of at least three years' standing. Practically, he is always
of much older standing. He usually resides in Edinburgh, and
continues to practise as an advocate. He is bound by Act of
Parliament to hold certain stated sittings within his county every
year.2 The Sheriffs of Edinburgh and Lanark are resident, and
do not continue to practise at the bar.
1 Barclay's edition of M'Glashan's Sheriff Court Practice, p. 11.
2 16 and 17 Vict., c. 80, sec. 46.
2006. In each county there is at least one Sheriff-substitute,
who is appointed by the Sheriff, with the approval of the two
heads of the Supreme Court, the Lord President and Lord
Justice-Clerk. The Sheriff-substitute is not removeable by the
Sheriff-depute, and his appointment does not fall with his death.
2007. Not more than two Sheriff-substitutes additional to
those existing at the date of the passing of the Sheriff Court Act
(15th August 1853) may be appointed in each county, on authority
granted by the Crown on the joint recommendation of the
Lord President, the Lord Advocate, and the Lord Justice-Clerk,
provided that the recommendation shall expressly bear that the
appointment is essential for the public service.1
2008. The Sheriff-substitute must be either an advocate, a
writer to the signet, a solicitor before the Supreme Courts, or a
procurator before a Sheriff Court, of at least three years' standing.
Of late years Sheriff-substitutes have been mostly chosen
from the bar.
II — Sheriff Small Debt Courts.
2009. The Sheriffs and Sheriffs-substitute, though not the
exclusive, are now the most frequent judges in those courts, in
which the smaller kind of civil actions are disposed of.
2010. In small debt actions, the prosecutor and defender state
the facts of the case verbally to the judge, and adduce proof
where necessary. The intervention of an agent is inadmissible
except with permission of the judge, and the cause of granting
leave must be set forth. When the statements and proofs
are concluded, the judge for the most part gives a decision at
once, in presence of the parties, and in open court, stating his
reasons more or less in detail as he may see expedient. Should
he consider his information to be defective, however, in point of
1 16 and 17 Vict, c. 80, sec. 37.
fact, or wish to consider the points of law which may have
arisen, he may adjourn the cause.
2011. No record is kept either of the statements or of the
proof; the names of the parties and the sums decerned for being
all that is committed to writing. The decisions in this form are
entered in a book kept by the clerk of Court, and subscribed
by the judge. These decisions are final, that is to say, they are
not subject to the review of any court on the merits.
2012. The appeal to the Justiciary or Circuit Court, formerly
mentioned, is competent only on the ground of corruption, or
malice and oppression, or on such deviations in point of form
from the statutory enactments as the Court shall think took place
wilfully, or have prevented substantial justice from being done,
or on incompetency, including defect of jurisdiction of the Sheriff.
By these provisions, parties in small debt causes before the
Sheriff are effectually protected from being brought into expensive
processes before the Supreme Court on mere questions of form.
2013. By the recent Sheriff Court Act,1 the jurisdiction of
the Sheriff's Small Debt Court was raised from L.8, Cs. 8d. to
L.12. The Small Debt Act of 18372 rendered imperative the
holding of Circuit Small Debt Courts by the Sheriffs or their
substitutes in every county, at the times and places mentioned in
the schedule to the Act. The frequency of these judicial visits
varies according to the amount of business at the different places;
the greatest number being twelve, and the smallest two. The
times and places of holding these courts may be changed by the
Sheriff, with consent of one of her Majesty's principal Secretaries
of State.
2014. The recent alterations which have been made in the
law of evidence in Scotland have greatly facilitated the conduct
of business in these courts. Witnesses are now "admissible
1 16 and 17 Vict., c. 80, sec. 26 (15th August 1853).
2 1 Vict., c. 41, sec. 23.
notwithstanding relationship to the party adducing them;"1
they are not "excluded by reason of crime,"2 though they may
be examined on any point affecting their credibility; 3 either party
may be examined either for or against himself;4 and an agent in
a cause may be examined, "even though he shall at the time
when he is so adduced be acting as agent."5
2015. The only exceptions still retained to the now almost
universal admissibility of witnesses, are, that neither parties
themselves, nor their husbands or wives, shall be competent or
compellable to give evidence in criminal proceedings in which
they are accused, nor to answer questions in a civil suit tending
to criminate themselves or each other, or to reveal matters which
they have communicated to each other during marriage.
2016. The small debt jurisdiction of the Sheriffs has arisen
merely as a substitute for the summary jurisdiction formerly
vested in justices of the peace and magistrates of burghs; and
the extent to which it has been increased since its first institution,
little more than thirty years ago, is the best proof of the
benefits which it has conferred on the public.
III. — Sherff's Police Court.
2017. In Edinburgh the Sheriff has, by special statute, a
police jurisdiction, which is cumulative with the ancient jurisdiction
of the civil authorities.
2018. The Sheriff's Police Court there performs criminal
functions which correspond in many respects to the civil functions
which belong to the Small Debt Courts; and its jurisdiction
is for the burgh almost identical with that of the Sheriff's
Summary Courts for counties. No record is kept of the evidence
in the Police Court. The period of imprisonment which
may be there awarded is limited to sixty days.
1 3 and 4 Vict., c. 59. 2 15 and 16 Vict., c. 27. 3 Ibid.
4 16 and 17 Vict., c. 20. 5 Ibid.
IV.—Burgh Courts.
2019. "Magistrates of boroughs have the cognisance of debts
and questions of possession between the inhabitants; and it is
the general opinion that royal boroughs have as extensive a civil
jurisdiction within the borough as the Sheriff bath in his
territory."1 Though this jurisdiction, even where it has not
been transferred to the Sheriff, has in a great measure fallen
into disuse, courts for the disposal of civil cases are still held by
the magistrates in all the burghs of Scotland. Where the
criminal jurisdiction of the magistrates is cumulative with that
of the Sheriff, as in Edinburgh, the burgh is itself a sheriffdom.
In some burghs the magistrates are constituted by their charter
justices of the peace2 in which case they have, within their
bounds, a jurisdiction similar to that of the county justices in the
rest of the county.
2020. Special justices of the peace for the city of Edinburgh
are now appointed under the Police Act.3
2021. In Edinburgh the magistrates are admirals of the ports
of Leith and Newhaven; and their jurisdiction extends half way
across the Frith of Forth, and embraces "all maritime affairs
and actions." Latterly this jurisdiction has been confined to a
superintendence which the magistrates exercise over the dredging
of oysters. In burghs the magistrates alone act as bailies in
giving sasine and receiving resignations of property held burgage.
1 Erskine, B. i., tit. iv., sec. 21.
2 By the Act 1587, c. 82, by which justices of the peace were originally
appointed, it was provided that "four of the council of every burgh" should be
justices.
3 11 and 12 Viet., c. 113, sec. 252.
V. — Dean of Guild's Court.
2022. The Dean of Guild is the head of the Guild Brethren,
or Merchant Company of the city. Formerly he was a judge in
such mercantile and maritime causes as arose within the burgh,
but he has long ceased to exercise jurisdiction in these matters.
It still belongs to him, however, to "take care that buildings
within burgh be agreeable to law, neither encroaching on private
property nor on the public streets or passages; and that
houses in danger of falling be thrown down." The Dean of
Guild exercises his authority in a court of which he is either the
sole or the principal judge.
2023. No building within the old or extended royalty of
Edinburgh can be erected, or taken down, or materially altered,
without a warrant from the Dean of Guild Court, which is only
granted after the neighbouring proprietors of the applicant and
others interested have been cited, and had an opportunity of
being heard for their interests. The Dean of Guild's jurisdiction
does not extend to that portion of the burgh brought under
the magistrates' jurisdiction by a recent statute.2
VI. — Justice of Peace Courts.
2024. The office of Justice of the Peace is of English origin.
2025. It was introduced into Scotland in the reign of King
James VI., by the same statute3 by which circuits for the
despatch of criminal business were instituted; and the justices
were intrusted with the double duty of bringing offences of the
graver sort before the judges, and of trying and disposing of
those of a more venial kind "at their courts and meetings to
be kept four times every year." These courts were the origin
1 Ersk. i. 4, 25. 2 19 and 20 Vict., c. 32, sec. 3 (1856). 3 1587, c. 82.
of our present Quarter Sessions. But it was during the Protectorate
of Cromwell that the office was put on its present
footing. The rules by which it has ever since been regulated
were prescribed by an Act which was passed immediately after
the Restoration,1 and in which the Instructions of the previous
year were embodied.
2026. By the Eighteenth Article of the Treaty of Union,
the justices of the peace in Scotland were invested with the
same powers in matters connected with excise and customs which
were previously possessed by the justices in England; and by a
subsequent statute,2 their criminal jurisdiction was also assimilated
to that of the English justices; the Scottish forms of
trial, however, being retained.
2027. The commission by which justices of the peace are appointed,
falls by the demise of the Crown.
2028. Several officials — such as the judges of the Court of
Session, the Lord Advocate, and the Solicitor General, and all
Sheriffs and Sheriff-substitutes — are included in every commission
of the peace.
2029. No solicitor or procurator in any inferior court can
act as a justice of the peace.3
2030. The antiquated form of commission still in use was
drawn up in England in the 33d year of the reign of Queen
Elizabeth (1590).
2031. No qualification of rank or property is required by a
justice of the peace in Scotland, and he receives no pecuniary recompense.
He is reimbursed by the Sheriff for the sums actually
expended by him in the public service.
2032. The regular days for holding Quarter Sessions are,
the first Tuesday of March, May, and August, and the last
Tuesday of October.
1 1661, c. 38. 2 6 Anne, c. 6, sec. 2.3
6 Geo. IV., c. 48, sec. 27.
2033. Petty Sessions are called when required by the clerk of
the peace.
2034. Quarter Sessions have the power of reviewing the judgments
of the justices in Petty Sessions.
2035. Two justices are a quorum; though in some of the
larger counties it is a rule, that a greater number shall be present
at Quarter Sessions1
2036. One justice cannot act as a judge, though he may grant
a warrant to apprehend an accused party, and bring him before
himself for examination, or before a court of two or more justices
for judgment.
2037. An appeal to the Circuit Court of Justiciary is competent
both from the Petty and Quarter Sessions, except when
excluded by statute.
2038. The chairman of a bench of justices has no double vote;
and in case of equality, one of the justices retires, or another is
called in.
2039. The judicial powers of justices of the peace are restricted
to the county for which they are appointed; but they
may receive affidavits, ratifications by married women, and the
like, anywhere in Scotland, — these being voluntary acts.
2040. The jurisdiction of justices of the peace in Scotland may
be said to be wholly statutory.
2041. In the recovery of servants' wages it extends to any
amount, "if the servants please rather to pursue before them
than any other judge."2
2042. Actions for aliment of bastard children are sometimes
brought before the justices; but these cases are competent only
where the paternity of the child is admitted.
2043. Warrants against debtors, as in meditation fugæ, are
frequently granted by justices of the peace.
1 Barclay's Digest of the Law of Scotland for Justices of the Peace, p. 558.
2 Stat. 1661, c. 38.
2044. The justices are also in use to ordain parties to find
surety to keep the peace. This proceeding, which in the legal
phraseology of Scotland is called "a warrant of law-burrows,"
was more common during the prevalence of duelling than of late
years.
2045. It has never been the custom for justices of the peace
in Scotland to try criminal cases by a jury, as is common in
England. Practically, their criminal jurisdiction is confined to
breaches of the peace and trifling assaults; and it is rare for
them to inflict a heavier punishment than a small fine or a short
imprisonment.
2046. In a case in which the justices imposed a heavy fine for
fraud and wilful imposition, the Court of Justiciary remarked that
it was not a proper case for their jurisdiction; and the same observation
has been made in other cases.1
2047. The Act 19 and 20 Vict., c. 40 (July 14, 1857), assimilates
proceedings before justices of the peace and magistrates
of burghs to those in the summary trial of offences before
the Sheriff, and extends to them the powers conferred on him by
14 and 15 Vict., c. 27, and 17 and 18 Vict., c. 86, in regard
to whipping juvenile offenders and imposing hard labour.
2048. The justices possess various statutory powers in reference
to revenue matters, highways, fishings, game, publichouses,
and the like. Under some of these the jurisdiction of the
justices is exclusive; under others, it is cumulative with that of
the Sheriff.
2049. The duty of granting licenses to publicans to sell excisable
liquors to be consumed on the premises, is exercised by
the justices in counties, and by the magistrates in royal burghs,
at half-yearly meetings appointed to be held for the purpose.2
If there are not a sufficient number of magistrates in a burgh,
the justices are empowered to act for them.
1 Watson and Ramsay v. Meek, 27th January 1813. 2 9 Geo. IV., C. 58.
2050. As these certificates are in force only for one year, their
constant renewal, and the inquiries that are requisite regarding
them, cause a great amount of labour to such justices as are
conscientious in the discharge of this part of their duty.
2051. Complaints for the violation of this Act are competent
either before the Sheriff, the Court of a royal burgh, or two or
more justices of the peace.
VII. Justices' Small Debt Courts.
2052. It is chiefly as judges under the various Acts which
have been passed during the last seventy years,1 to facilitate the
recovery of small debts, that the civil jurisdiction of the justices
of the peace is practically exercised.
2053. The existing code for their guidance in this branch of
their duties is 6 Geo. IV., c. 48 (1825); amended by 12 and 13
Vict., c. 34 (1849).
2054. By the first of these Acts the jurisdiction of the justices
is confined to cases not exceeding L.5,2 and this provision remains
unaltered.
2055. The recent statute, by which the jurisdiction of the
Sheriffs in their Small Debt Courts is raised from L.8, 6s. 8d. to
L.12,3 has no application to the Small Debt Courts either of
justices of the peace or of magistrates of burghs.
2056. Parties state their own cases in these courts viva voce,
and no record is kept either of the arguments or of the evidence.
2057. Procurators cannot practise in them, even with leave of
the justices.4
2058. The decrees of the justices in their Small Debt Courts
are not subject to review on any other grounds than malice or
oppression.5
1 The first is 35 Geo. III., c. 123 (179.5). 2 Sec. 2.
3 16 and 17 Vict., c. 80, sec. 26. 4 6 Geo. IV., c. 48, sec. 5. 5 lb. sec.14.
2059. The Cleric of the Peace is not properly an assessor to the
justices; but, practically, his opinion is usually asked and followed
in matters of law. He is appointed by the Crown.
VIII. — The Court of the Lord Lyon.
2060. As chief herald for Scotland, the Lord Lyon exercises
jurisdiction over all heralds, pursuivants, and messengers--
at-arms. He admits them to office, superintends them in the
discharge of their duties, takes cognisance of complaints against
them, and suspends them or deprives them of office when guilty
of malversation.
2061. The Lord Lyon is also empowered to inspect the arms
and armorial ensigns of all noblemen and gentlemen, to distinguish
the arms of the younger branches of families already possessing
them, to grant new arms to "virtuous and well-deserving
persons" who apply to him by petition, and to fine those who
use arms that are not matriculated. The duties of the Lord
Lyon are performed by deputy.
2062. The powers of the Lord Lyon were conferred by the
Acts 1592, c. 127 ; and 1672, c. 21.
2063. The Court of Session has the power of reviewing the
decisions of the Lyon Court.
CHAPTER III.
OF THE ECCLESIASTICAL COURTS.
2064. The ecclesiastical jurisdiction of Scotland was constituted,
very nearly as it now exists, by an Act of the 12th Parliament
of King James VI., in the year 1592.
2065. Having been thus called into existence as a whole at
one particular period of our history, and by a class of persons
who attached a peculiar value to logical consistency, it is
naturally much more symmetrical than the civil jurisdiction,
which has grown up gradually during many centuries.
I. — Kirk-Session.
2066. The root from which the whole government of the Presbyterian
Church springs is the session. It consists of the minister
(or in case of a collegiate charge the ministers) of the parish,
and the elders.
2067. The elders are elected by the session; and their numbers
are regulated by the exigencies of the parish.
2068. There must be two elders at least in every kirk-session.
The minister is Moderator of the session, and if there are two
ministers they preside in rotation; the one who is not preses
being a constituent member of the session.
2069. A minister and his ordained assistant cannot both be
members of the session.
2070. The duties of the session are to superintend and promote
the religious concerns of the parish in regard both to
discipline and worship. It is under the former of these heads
that the session exercises functions analogous to those of a court
of morals. It takes cognisance of scandalous offences, and punishes
them, when proved, by deprivation of religious privileges. The
discipline of the Church was formerly of a far more positive
kind; but the practice even of public rebuke has now gone
entirely into disuse.
2071. The power of disposing of the ordinary church-door
collections for the relief of the poor, in so far as formerly vested
in the heritors and kirk-session, is transferred to the latter alone
in all parishes in which it has been agreed that an assessment
shall be levied.1
2072. The session-clerk is bound, under a penalty, to report
annually to the Board of Supervision the application of the collections,
and the right of the heritors to examine the accounts of
the kirk-session is reserved.
II. — The Presbytery.
2073. The Presbytery is the court immediately superior to the
kirk-session.
2074. The bounds of its jurisdiction are fixed by the General
Assembly, which has the power of increasing and diminishing the
number of Presbyteries. Their present number is eighty-two.
2075. "A Presbytery," says Dr Cook,2 "consists of the
ministers of all the parishes within the bounds of the district; of
the professors of divinity of any university that may be situated
within the bounds, provided they be ministers; and of an elder
for with of the kirk-sessions in the district."
2076. "One of the ministers is chosen to act as Moderator,
and it is the general practice that the Moderator elected continues
in office for six months."
2077. It belongs to the Presbytery to examine candidates for
the ministry, and to grant them licenses to preach; to take trial
1 8 and 9 Viet., c. 83, sec. 54. See Dunlop's Poor Law, p. 82.
2 Styles, Procedure, and Practice of the Church Courts, p. 41.
of the qualifications of presentees to parishes, and to ordain them
and induct them, and thereafter to see that the duties of the
ministry are properly performed by them in their respective
parishes. In the event of any charge involving censure, suspension,
or deposition being brought against any ministers within
the bounds, it is the duty of the Presbytery to judge in the
matter.
2078. The Presbytery further examines all schoolmasters on
their appointment by the minister and heritors, superintends their
conduct during their tenure of office, tries them when accused,
and may depose them should their crime warrant that sentence.
It examines annually all the schools within its bounds, and reports
on their condition to the General Assembly.
2079. The Presbytery is a court of appeal from the kirk-session;
and it is in use to give advice on points referred to it from
that body.
2080. The functions of a Presbytery, as a civil court, are confined
to judging in the first instance in questions connected with
the erection and repair of churches and manses, the excambion
of glebes, and the like; and also regarding schoolmasters.1
III. — The Synod.
2081.The provincial Synod is superior in powers and in dignity
to the Presbytery, and intermediate between it and the
General Assembly of the Church.
2082. There are now sixteen Synods in Scotland, that of Shetland
having been added to the previous number by an Act of the
General Assembly in 1830.
2083. The members of all the Presbyteries within its bounds
are members of Synod; with the addition of two corresponding
1 Dr Hill's Practice in the Church Courts, p. 109. See also ante, 214 et seg.
members, a minister and ruling elder from each of the contiguous
Synods.
2084. The Synod usually meets twice a year.
2085. The Moderator of the Synod is always a minister.
2086. The Synod acts generally as a court of appeal from the
Presbytery; it being incompetent to carry any case directly to the
General Assembly, except by special authority from that court,
or in the event of no meeting of Synod having intervened.
IV. — The General Assembly.
2087. The General Assembly is the highest ecclesiastical court
in Scotland.
2088. It consists of ministers and elders, who are sent as representatives
from all the Presbyteries, royal burghs, and universities.
The churches in the East Indies in connection with the
Church of Scotland are now also represented.
2089. The number of members sent to the Assembly by each
Presbytery is proportioned to the number of ministerial charges
which it embraces. Presbyteries containing not more than twelve
ministerial charges, which are the smallest, send two ministers
and one ruling elder; whilst those having more than fifty-four
send ten ministers and five ruling elders.1
2090. The office of Principal or Professor of Divinity in an
university counts as an additional charge. The town of Edinburgh
sends two members, and sixty-five other burghs send one
each. Each of the five universities sends one, and the churches
in India two. Additional members are occasionally added to the
Assembly in consequence of the increase made to the numbers of
the members of Presbyteries by the erection of new churches.
2091. The Assembly meets in Edinburgh annually on, the first
Thursday after the 15th of May.
2092. The Commissioner, who is appointed to represent the
1 Fifth Act of Assembly, 1694, and 1712, c. 6.
Crown in the Assembly, takes no share in the debates; and it
has been even maintained that the Assembly may proceed to
business without him. Great care, however, is now taken to
prevent collision between the powers of the Assembly and the
Crown. When the Commissioner is absent, the Assembly usually
resolves itself into a committee and reports its proceedings on his
return. When, on the other hand, the Moderator appoints the
next Assembly to meet on a particular day of the following year,
"in the name of the Lord Jesus Christ, the King and Head of the
Church," the Commissioner invariably appoints the same day "in
the Queen's name."
2093. The first act of the Assembly is to choose a Moderator,
who is always one of the ministers on the roll of members of that
Assembly. He is usually proposed by the preceding Moderator;
it being competent, however, for any member to propose another
candidate. The General Assembly has also a procurator, or
assessor who is always a member of the bar, and an agent who
is a Writer to the Signet, — principal and depute-clerks, printers,
and other officials.
2094. The General Assembly acts both in a legislative and a
judicial capacity. Legislative measures are introduced in the
form of overtures;1 i.e., proposals or suggestions, which may
originate with a member of Assembly, a Presbytery, a Synod, or
with a committee appointed by the Assembly itself for the purpose.
When an overture has been adopted by the General
Assembly, it is transmitted to the several Presbyteries, with injunctions
to report on it to the next General Assembly. If forty
Presbyteries have approved of it, it may then pass into a law.
In cases requiring greater despatch the Assembly is in use to pass
interim acts, which are binding till the meeting of the next
Assembly, and may be continued till the overture either passes
into a law or is finally rejected.
1 Ante, p. 2.
2095. Private questions are brought before the Assembly as a
court of law by petition; and it is usual for the party to be represented
by counsel, who also appear not unfrequently in the inferior
ecclesiastical courts, except the kirk-session, before which law-agents
are not allowed to practise.
2096. The annual session of the General Assembly is ten days,
and such business as it is unable to overtake during this time is
referred to a commission.
2097. The Commission consists of all the members, with the
addition of one minister named by the Moderator. Thirty-one
members make a quorum, provided that twenty-one of these are
ministers.
2098. The stated meetings of the Commission take place on
the day after the dissolution of the Assembly, on the second
Wednesday of August, the third Wednesday of November, and
the first Wednesday of March.
2099. Meetings may be held at other times, but private processes
can be brought only before the stated meetings.
2100. The proceedings of the General Assembly are liable to
review in the civil court when they affect either the patrimonial
interest or other civil rights of individuals.
2101. The various bodies of Dissenters from the Presbyterian
Church of Scotland are governed by organisations distinct from,
but analogous to, that of the Established Church.
CHAPTER IV.
OF THE PRACTITIONERS OF THE LAW.
2102. In Scotland, as elsewhere, the practitioners of the law
are divided into various classes, who perform functions essentially
different.
2103. (1.) Advocates. — This is the name by which members of
the bar are known in Scotland, as in France. Their position
with reference to the other branches of the profession is the same
as that of barristers in England.
2104. They possess the exclusive privilege of pleading in the
Supreme Courts, and are entitled to plead in all the other Courts,
civil, criminal, and ecclesiastical, including the House of Lords
in Scotch appeals. The Supreme Judges and principal Sheriffs
must be, and the Sheriff-substitutes generally are, selected from
the bar.
2105. The origin of the profession in Scotland is probably of
very early date. In 14241 provision is made for securing the
assistance of its members to pauper litigants. But the existence
of the Faculty or Society of Advocates is coeval with the
institution of the College of Justice in 1532.
2106. The number of members of this body, which at first
was limited to ten, has long been unlimited. At present it consists
of about 425 members, not more than one-fourth of whom
are engaged in practice.
2107. The Faculty is presided over by a Dean, elected by its
members, who is usually the most prominent practitioner for the
time being; and by him, assisted by a council, its affairs are
managed.
1 1424, c. 24.
2108. Admission to the body is preceded by two examinations
— the first being in general scholarship, the second in Law.
2109. The degree of Master of Arts of any British university,
or such degree of a foreign university as, in the opinion of the
Dean and his council, affords evidence of the same amount of
scholarship as that afforded by the degree of Master of Arts of
a Scottish university, is accepted as an equivalent for the first
examination. It is now the almost invariable practice for candidates
to produce a diploma in Arts.
2110. A year must elapse between the first examination, or
the presentation of the diploma as its substitute, — and the second
examination in the Civil Law of Rome and the Municipal Law of
Scotland; and this examination must be preceded by attendance
on the Law classes in the University of Edinburgh.
2111. Both examinations are conducted by persons of learning,
usually professors in the University of Edinburgh, who
act as assessors to a Committee of Faculty appointed by the
Dean.
2112. The fees of admission to the Faculty are about
L.336.
2113. The library of the Faculty of Advocates, which was
founded by Sir George Mackenzie in 1682, is the most extensive
and valuable in Scotland. It consists of about 160,000 volumes,
and is particularly rich in MSS. relating to the history of Scotland.
It has been already mentioned, under the head of Copyright,1
that the Advocates' Library is entitled to a copy of every
work entered at Stationers' Hall.
2114. (2.) Writers or Clerks to the Signet, are the highest class
of law agents.
2115. Their functions in litigation are those of attorneys and
solicitors in England, and they also act very extensively as conveyancers
and managers of private affairs. When viewed in
1 Ante, p. 320.
the latter capacity they are usually spoken of as agents, commissioners,
or factors for the parties.
2116. Writers to the signet are resident in Edinburgh, and
practise, as such, exclusively before the Supreme Courts; but
the individual members of the body possess also the privilege of
practising before the Sheriff Court in all matters that have been
transferred by statute from the Supreme Courts to the Sheriff
Courts, as proceedings in bankruptcy, etc.
2117. The name is said to have originated in the first members
of the body having been clerks in the office of the Secretary of
State, by whom writs passing the King's signet were prepared;
and they still possess the exclusive privilege of preparing the
warrants of charters of land flowing from the Crown, of signing
summonses citing parties to appear in the Court of Session, and
all other writs that pass the signet, as diligences for affecting the
person or estate of the debtor, or for compelling implement of the
decrees of the Supreme Court.
2118. The Society is presided over by a Keeper, who usually
acts by deputy, and by whom, assisted by certain commissioners
named by the Keeper, its affairs are managed.
2119. Admission must be preceded, 1st, by attendance during
two different sessions, or two full winter courses of lectures, in the
Faculty of Arts of a Scottish university. One certificate must
be produced from a professor of Latin, or Humanity as it is
called.
2120. 2d. By an apprenticeship, which must not be entered on
under sixteen years of age, and is of five years' duration.
2121. 3d. Attendance on four courses of lectures on Law in the
University.
2122. The candidate is also subjected to two examinations,
one in scholarship and one in Law, previous to admission.
2123. The apprentice-fee to the master is L.200. The payment
by the apprentice to the widow's fund is L.50, is. 6d.; to
the general fund of the Society, L.81, 2s. 6d.;— the total indenture
fees being L.331, 4s. At passing, there is a further fee of L.25
for the commission; a passing fee of L.51, 6s.; and L.3, 5s. 6d.
of perquisites to officers;— the total expenses of entering the body
being L.410, 15s. 6d. The writers to the signet possess a large
and valuable library.
2124. (3.) Solicitors before the Supreme Courts are also a corporate
body of some antiquity, the members of which, as regards litigation,
discharge most of the functions entrusted to writers to the
signet, with the exception of signing summonses citing parties
to appear in the Court of Session, and other writs passing the
signet with a view to securing the debtor's funds.
2125. The apprenticeship of a solicitor is five years; and attendance
at the University, though to a more limited extent than
in the case of a writer to the signet, is also requisite.
2126. The fees of admission to the body are much more
moderate, — the whole amounting to about L.155.
2127. College of Justice. — All advocates, writers to the signet,
and solicitors before the Supreme Courts are members of the
College of Justice.
2128: (4.) Solicitors-at-law are a society of agents resident in
Edinburgh, and incorporated by Royal Charter.
2129. Their practice is confined to the Sheriff and other inferior
courts in Edinburgh, in which the members of the two lastmentioned
bodies do not practise.
2130. (5.) Provincial Writers. — Writers, in provincial towns,
act not only as procurators before the Sheriff Court, but generally
as agents and factors in the conduct of private affairs, in
the same manner as the above-mentioned practitioners in Edinburgh.
In Aberdeen alone the writers are called advocates, in
virtue of a charter.
2131. In cases arising in the provinces, even though likely,
from their nature, to terminate in the Court of Session, or to
lead to a jury trial in Edinburgh, it is usual to employ a country
agent in the first instance.
2132. (6.) Notaries. — Many of the writers to the signet, and
other practitioners, are also notaries public, in which character
they protest bills, and prepare notarial instruments of various
kinds; the most important and frequent of which has been
nearly superseded by a recent Act,1 substituting registration of
conveyances for instruments of seisin. They also authenticate
deeds for those who cannot write.
2133. Notaries are admitted by the Court of Session, after
examination by members of the Society of Writers to the Signet.
CHAPTER V.
PRACTICAL SUGGESTIONS WITH REFERENCE TO JUDICIAL
PROCEEDINGS.
2134. Were we to attempt to place before our readers anything
approaching to an intelligible account of the forms of procedure
either in civil or criminal actions, we should not only
exceed the limits, but violate the objects, of the present work.
Forms of process are pre-eminently a professional subject; and it
is very far from our intention to induce non-professional persons
to occupy themselves with such, beyond the extent which may
be necessary for their practical guidance. As regards the conduct
of litigation, no such necessity can arise. In the ordinary
intercourse of life any man may be compelled, at any moment, to
determine whether or not he shall adopt a course of conduct
which may afterwards compel him to become a litigant, but
he never can be forced to engage in judicial proceedings with
1 21 and 22 Viet., c. 76.
such precipitation, or to conduct them in such isolation, as to
deprive him of professional aid; and the soundest advice that can
be given him, when about to litigate, is to place himself in the
hands of a respectable agent with the smallest possible delay
2135. All that shall be attempted in the present section, therefore,
will be to furnish such information as will enable persons
unacquainted with the institutions and professional arrangements
of Scotland, — strangers, foreigners, ladies, and the like, — at once
to adopt such measures as will procure them redress of injuries,
or enable them to resist aggression.
2136. Civil Actions. — (l.) Small Debt. — The only court in
which parties usually appear on their own behalf is, as we formerly
explained, the Small Debt Court.1
2137. The first step to be adopted in raising an action before
a Small Debt Court, is to make application to the clerk of Court
(who will usually be found, during business hours, at the County
Buildings, both in provincial towns and in Edinburgh) for a
printed copy of the form of summons or writ by which the defender
is called into Court, which is appended to the statute
by which these courts are regulated.2
2138. This document, being filled up by the complainer with
a statement of "the origin of his debt or ground of action, and,
whenever possible, with the date of the cause of action, or last
date in the account," 3 and signed by the Sheriff-clerk, is a sufficient
warrant to a Sheriff's officer for summoning the defender
to appear and answer at the time and place mentioned in the
summons and complaint, which must not be sooner than the
sixth day after citation.
2139. This writ, and the copy of it served on the defender, is
further a sufficient warrant for summoning such witnesses, or the
possessors of such documents or other means of proof, as either
party may require (sec. 3).
1 Ante, pp. 370, 378, 1 Vict., c. 4L 3 Schedule A.
2140. If any witness, or other person thus required for the
conduct of the action, who has been cited forty-eight hours
before the time of appearance, shall fail to appear, he is liable
to the party citing him in a penalty not exceeding forty shillings,
unless a reasonable excuse be offered and sustained by the
Sheriff.
2141. Though the statutory duties of the clerk of Court are
fulfilled when he has furnished the pursuer with the means of
raising his action, and enabled both parties to compel the
attendance of such witnesses as they may require, he is generally
willing to give to either of them whatever further advice or
assistance may be requisite.
2142. It is of great importance that both pursuers and defenders
in the Small Debt Court should have their witnesses
present at the first calling of the cause. It is no doubt in the
judge's power to continue or postpone the case, either till the
other cases are disposed of, or to a subsequent court-day; but
despatch being one of the primary objects of the small debt
jurisdiction, he will not generally do so unless a very sufficient
reason is stated to him.
2143. The admission of agents is also at the discretion of
the judge; but it may be stated, as an almost invariable rule of
practice, that their interposition will not be excluded wherever
either the circumstances of the party or character of the case
render it desirable for the attainment of substantial justice.
2144. (2.) Ordinary Actions. — It is one of the constitutional
privileges of every British subject to sue and defend in his
own person in every court, whether inferior or superior, which
has jurisdiction over him. But the privilege is one so rarely
exercised, and the exercise of which is so little expedient, that
we cannot regard it as desirable that we should furnish rules for
the guidance of the few who may desire to assert it. He who
determines to act as his own lawyer must be prepared to encounter
the professional skill from which, in an ordinary action,
his opponent will not be shut out; and, in order to do so with
success, he must arm himself with professional weapons. To
such an one, as to all the world, the literature of the profession
is open; and if he is resolved to cope with those who have received
a professional training, he must not stop short with the
perusal of elementary works and popular treatises.
2145. Criminal Actions. — The excellent institution of public
prosecutors,1 both in the superior and inferior criminal courts of
Scotland, relieves private parties in all cases from the necessity
of seeking redress for injuries of a criminal nature by their own
means.
2146. When an offence is committed, all that is requisite is,
that the Procurator-Fiscal2 be made acquainted with the whole
circumstances attending it with the smallest possible delay,
either through the interposition of the police, or directly. A
warrant for the apprehension, examination, and, if necessary,
the incarceration of the suspected offender, will then be procured
from a magistrate on his application; and all other necessary
steps will be taken by his instructions for prosecuting the offence
either in the inferior or superior courts, according to its nature or
the previous character of the offender.
1 Ante, pp. 365, 369. 2 Ante, p. 369.
INDEX.
A
Aberdeen Act, 141. — See Entail.
Acceptance of bill, 270; must be in writing, ib.; conditional,
271; for honour, ib.; presentment for, 275. — See Bill.
Accommodation, 274, 275. — See Bill.
Account current, prescription on, 225.
Accountant in bankruptcy, 257, 258, 264.
Accounting, rules of, in partnership, 286.
Actions, civil, in Small Debt Courts, 391; ordinary civil actions,
392; criminal actions, 393.
Adherence, action of, 39.
Adjudication on trust-bond, 158.
Admiralty, Court of, 361.
Admiral, Lord High, 261, 262.
Adultery, 35 et seq.
Advocates, 386; name derived from France, ib.; called barristers
in England, ib.; can plead in all courts, ib.; judges
chosen from, ib.; history of profession, ib.; its numbers, ib.
Advocates, Faculty of, presided over by Dean, ib.; admission
to body preceded by two examinations, 387; their character,
ib.; fees of admission, ib.
Advocates' Library, 320, 387.
Advocates-depute prosecute in Court of Justiciary, 365.
Advocate, Lord, prosecutes in Court of Justiciary, 365.
Advocation, caution in, 307.
Affidavits before justices, 376.
Affinity, within what degrees an impediment to marriage, 9.
Affreightment, 241.
Aged persons, when entitled to relief under poor law, 340.
Agent, bank, caution for, 306.
Agent for church, 384.
Agents, law, in Edinburgh, 387, 388; in provincial towns, 389.
Agreement, 226.
Aliment of relations, 19, 50, 343.
Aliment of paupers, 340, 343.—See Poor.
Aliment allowed to officers and clergymen under decree of cessio,
264.—See Bankruptcy.
Altius non tollendi, servitude of, 214.
Annuity tax, 353.
Annus deliberandi, 136.
Appeal to House of Lords, 363, 364; to Circuit Courts, 367.
Application of pauper for relief, 340.
Apprentice, master and, 120.
Aqueduct, servitude of, 213.
Arbitration between master and workman, statute law relating
to, 115, 116.
Arrears of rent, prescription of, 222.
Arrest, protection from, under sequestration, 251 (see Bankruptcy);
of princes, 313 (see Insurance).
Arms, Lord Lyon has jurisdiction with reference to, 379.
Arms, messenger at, 379.
Arts, Master of, 387.
Assessment for support of poor first imposed after accession of
James VI., 337; not actually enforced for more than a century
after, ib.; how levied under existing law, 346, 347. — See
Poor.
Assembly, General, 383. — See Courts, Ecclesiastical.
Assignation, in what instruments requisite, 272.
Assimilation between Scotch and English law, 1.
Associations, guarantee, 300, 305.
Attendance, medical, on servant, 101; on pauper, 340; privileged
debt, 169.
Attorneys. — See Writers to the Signet, 387 et seq.
Auction, or roup, sale by, 205. — See Sale.
Authentication, bills and promissory notes exempted from, 265.
B
Banks, chartered, 290, 291.
Banks, Commercial, National, and Royal, 291.
Banks, joint-stock, 290. — See Partnership.
Bank agent, caution for, 306.
Bankruptcy and insolvency, 250; objects of bankrupt law, ib.;
how attained, ib.; provisions of Bankrupt Act, 251 et seq.;
sequestration at common law, 251; statutory sequestration,
ib.; granted on debtor's petition, ib.; what concurrence requisite,
ib.; protection from arrest, ib.; sequestration not now
confined to persons engaged in trade, 252; judicial factor,
when appointed, ib.; interim factor, ib.; books, etc., may be
sealed by Sheriff, 253; sequestration now awarded by Sheriff,
ib.; how opposed, ib.; how ended, ib.; regular course of procedure
in, ib.; trustee in, 254; may creditor be? ib.; election
of trustee, ib., 255; objections to, how disposed of, ib., 256;
security by trustee, ib.; commissioners elected at same meeting
as trustee, 257; their duties, ib.; removal of trustee and
commissioners, ib.; accountant in bankruptcy, his duties, ib.,
258; trustee cannot resign, ib.; trustee's inventory, ib.;
examination of bankrupt, ib., 259; examination of conjunct and
confidant persons, ib.; wife may be examined, ib.; discharge of
bankrupt on composition, 260; discharge of bankrupt without
composition, ib., 261; notour bankruptcy, ib.; statutory provisions
as to alienations after, ib.; notour bankruptcy, how
constituted under recent Act, ib.; how further constituted,
262; ranking, ib.; cessio bonorum, ib.; history of, ib.; jurisdiction
in, extended to Sheriffs, 263; provisions of statute
relating to, ib., 264; trustees in cessios under accountant in
bankruptcy, 264; decree of cessio does not confer power to
claim discharge, ib.; working tools exempted from, ib.; aliment
allowed to half-pay officers and clergymen, ib.
Banns, publication of, 6. — See Husband and Wife.
Bastards, both father and mother bound to aliment, 52, 53. —
See Parent and Child, 53; and Poor, 344; see also Guardianship,
p. 57.
Bequest, 161. — See Succession.
Bills and promissory notes, 265.
Bills of exchange, inland bills, and promissory notes, their objects,
ib.; exempted from formal authentication, ib.; possess additional
privileges for transmission and execution, ib.; bill of
exchange, its form, 266; how drawn and transmitted, ib.; inland
bill, ib.; its form, 267; promissory notes, form of, 268;
requisites of bills and notes, ib.; date, 269; provisions of
Mercantile Law Amendment Act as to proving, ib.; subscription
by procuration, by initials, or by mark, ib.; minors, bills
and notes by, 270; married women cannot grant, ib.; recourse,
ib.; acceptance, must now be in writing, ib.; implied
from detention, ib.; refusal to accept its effect, ib.; acceptance
by procuration, ib.; acceptance by partner, 271; conditional
acceptance, ib.; acceptance and payment for honour, ib; indorsement,
ib., 272; full indorsement, ib.; blank indorsement,
ib.; bills of lading pass by, ib.; other instruments require
assignation, ib.; indorsement by procuration, by partner, ib.;
bank notes pass without indorsation, ib.; Bank of England
notes, ib.; statutes with reference to issue of notes by other
banks, ib.; alterations and erasures, effect of, on bills, ib., 273;
statute to amend law of false pretences, ib.; stamp, bills and
promissory notes must have, ib.; draft payable to self does
not require, ib.; amount of duty, ib.; regulations as to stamping
foreign bills, 274; accommodation or wind bills, ib.; their
object to raise money, ib.; understanding on which accommodation
granted, ib.; skeleton bills, ib.; presentment for
acceptance, 275; presentment for payment, ib.; days of
grace, ib.; differ in different countries, ib.; three days in
Great Britain, ib.; when last day is Sunday, or holiday,
payment must be on preceding day, 276; no days of grace on
bill payable on demand, ib.; not settled if allowed on bill at
sight, ib.; what sufficient presentment, ib.; protest, ib.; how
performed, ib.; noting, ib.; provisions of 19 and 20 Vict.,
c. 60, as to protesting bills, ib.; notice indispensable to preserve
recourse, 277; no form requisite, ib.; notice must
identify bill, and inform party to whom given of protest, ib.;
sufficient if put into post-office, ib.; verbal notice sufficient,
ib.; notice in foreign bills, ib.; in inland bills and notes regulated
by statute, ib.; effects of provision of Mercantile Law
Amendment Act, ib.; diligence, execution may proceed on
bills and notes without action, 278; registration equivalent to
decree, ib.; prescription, ib.; bills and notes prescribe within
six years, ib. — see Prescription; not interrupted by marking
of partial payment or interest, ib.
Bills, prescription of, 222.
Blood, full and half, 9.
Board of Trade may appoint registrars of banking companies, 293.
Bond, personal, 331; bond, heritable, 332; bond and disposition
in security, 333; back bond, ib.
Bonded warehouses, 247.
Bonorum, cessio, 262, 263. — See Bankruptcy.
Book. — See Copyright, 318.
Brieve of service, 155. — See Succession.
Broker, 309. — See Insurance.
Bubble Act, 289.
Burdens and rights attaching to heritable property, 206 et seq.
— See Property.
Burdens, public, 207 et seq.
Burgage, property held, powers of magistrates with reference
to, 373.
Burgh Courts, 373. — See Courts.
C
Calumny, oath of, its terms, 36; when must it be taken? 39.
Carriers are middlemen, 192; their special liabilities, 243.
Cash credit, 303.
Cattle, servitude of watering, 213; servitude of pasturing, ib.
Cautionary obligations, 299; proper and improper, distinction
between, abolished by Mercantile Law Amendment Act, ib.;
cautionary, generally gratuitous, ib.; sometimes for premium
paid, ib.; Scotch law adopted in England, 300; guarantee
associations, 300, 305; greater strictness required now than
formerly in cautionary obligations, 300; discussion, ib.; cocautioners,
301; division, ib.; cautioners for cash credit, 303,
304; prescription of, 302; cases to which Act does not apply,
303; termination of obligation in cash credit, 304; cautioners
for agents, etc., ib., 305; for Government servants,
ib.; cautioners for messengers-at-arms, 306; caution for bank
agents, ib.; judicial caution, ib.; caution by bond of presentation,
ib.; caution in suspensions and advocations, 307; juratory
caution, ib.; caution judicatum solvi, ib.
Cessio bonorum, 262. — See Bankruptcy.
Chancellor of Scotland, office of, abolished, 350.
Chartered banks, 290, 291.
Child, 46. — See Parent and Child.
Church, 215; rebuilding of, etc. — See also Marriage, 7.
Church courts, 380. — See Courts, Ecclesiastical.
Circuit courts, 367.
Civil law, its influence op the law of Scotland traceable to the
French connection, 1; its effects on the law of marriage,
guardianship, and contracts, ib.
Clare Constat, entry of heir by writ of, 157.
Clergy of Established Church, how supported, 215, 216.
Clerks, hiring of, 85.
Code de Commerce, 289, note.
Cognate, 61. — See Guardianship.
Cognition of insane or facile person, 77. — See Guardianship.
Collections at church-doors, 345. — See Poor.
College of Justice, formed on the model of the Parliament of
Paris, 2; its present members, 389.
Combinations among workmen, 117.
Commercial Bank, 291.
Commercial law, 175, 176.
Commissary Court, 362. — See Courts.
Commission of the Peace, 375.
Commission of Assembly, 385.
Commissioner Royal to General Assembly, 384.
Commissioners in sequestration. — See Bankruptcy, 257.
Common, right of pasturage over, 213.
Community of goods, 10, 20. — See Husband and Wife.
Company. — See Partnership, 279 et seq.
Composition to superior, 198.
Composition by bankrupt, 260.
Concubinage, how converted into marriage, 8. — See Husband and
Wife.
Confirmation, writ of, substituted for charter of, 203.
Confirmation of executor, 167, 168.
Conjunct and confident persons, 259.
Conquest, 134. — See Succession.
Consent, legal, requisites of, 4, 176.
Contracts, constitution of, in general, 4, 176; consent must be deliberate
and voluntary, 177; error in essentials, ib.; force and
fear, ib.; fraud, ib.; written contracts, ib., 178; locus penitenti,
ib.; rei interventus, ib.; homologation, ib.; immoral
contracts, 179; gaming debts and wagers, ib.; Sunday contracts,
ib.; Tippling Act, ib., 180.
Contract of letting and hiring, 226. — See Letting and Hiring.
Contract of sale, 180. — See Sale.
Contracts, marriage, 42 et seq.
Conveyancers. — See Writers to the Signet, 387.
Copyright, history of, 318; now regulated by 5 and 6 Vict.,
c. 45, 319; what is a book? ib.; does not include designs
which are protected by separate Acts, ib.; endurance of copyright,
ib; must be forty-two years, may be longer, ib., 320;
applies to copyrights under former law, if held by author or
his representatives, ib.; Privy Council may license publication
of book where author dead, ib.; copies of books must be
delivered at British Museum, and given to. Bodleian Library
at Oxford, Public Library at Cambridge, Library of Faculty of
Advocates, Edinburgh, and Library of Trinity College, Dublin,
lb.; Stationers' Hall register, 321; damages for printing
books in which copyright subsists, ib.; summary mode of conviction,
ib.; reviews, encyclopedias, etc., music, engravings,
sculpture, 322, 323; universities, privileges of perpetual
copyright held by, ib.; lectures, ib.; international copyright,
lb., 324; copyright in designs, ib., 325; epistolary correspondence
protected, ib.
Courts, 349 et seq.; Supreme, and judges, ib.; Inferior, 368;
ecclesiastical, 380.
Court of Session, 349; when instituted, ib.; its original
constitution, ib., 350; churchmen appointed to be judges,
ib. and note; Lord Chancellor, office abolished at Union,
ib.; peers appointed to sit with judges, ib.; Court of Session
one tribunal till 1808, ib.; now divided into two
courts, Outer House and Inner House, 350, 351; subsequent
changes in number of judges, 351; now consists of thirteen,
ib.; Lord President, 350, 351; Lord Justice-Clerk, 351;
arrangements as to business, ib.; judges hold office ad vitam
aut culpam, ib.; appointed by Crown, ib.
Court of Session, its power to pass Acts of Sederunt, 3.
Bill Chamber, 351.
Hearing in presence, 352.
Jurisdiction of Court of Session, 352 et seq.; its judgments
may be reviewed by the House of Lords, 352, 353, 363, 364.
Questions of fact, 353. — See Jury Court, 354.
Law and Equity, not separated in Scotland, 353.
College of Justice, 353, 389.
Departments of Court of Session, 354 et seq.
Jury Court, 354 et seq.; its institution in 1815, ib.; its first
constitution borrowed from England, ib.; incorporated
Courts — continued.
with Court of Session, in 1830, ib.; what cases may be
sent to, 355; changes in arrangements for determining
questions of fact, by 13 and 14 Vict., c. 36 (Lord Rutherfurd's
Act), ib.
Court of Exchequer, 357; jurisdiction of, transferred to
Court of Session in 1856, ib.; history of Ancient Court
of Exchequer, ib.; New Court established at Union, ib.;
subsequent changes, 358; and present arrangements,
358, 359.
Teind Court, 360; its history and present jurisdiction, ib.
Admiralty, Court of, 361, 362; its history, 361; abolished
in 1830, ib.; present arrangements as to Admiralty
causes, ib., 362.
Commissary Court, 362; its history, ib.; abolished as separate
court in 1836, 362; inferior commissariots, ib.; present
jurisdiction of Commissary Courts, ib.
House of Lords, 363; highest Court of Appeal in civil causes,
ib.; history of the right of appeal to Parliament, ib.; of
what courts judgments carried directly to House of Lords,
ib., 364; how judgments of House of Lords executed, ib.
Court of Justiciary, 364; supreme criminal tribunal in Scotland,
ib.; Lord Justice-General its president, ib.; and Lord
Justice-Clerk in his absence, 365; five other Lords of Session
are Commissioners of Justiciary, ib.; three are a
quorum, ib.; Lord-Advocate, Solicitor-General, and four
advocates-depute prosecute in, ib.; jury consists of fifteen,
ib.; verdict of "not proven," ib.; special verdict, ib.;
written verdict, ib., 366; no appeal from Court of Justiciary,
either in fact or law, 364, 366; cannot review its
own judgments, ib.; when it reviews those of inferior courts,
ib.; its arbitrary power, exceptions to, ib.
Peers amenable to Court of Justiciary for ordinary crimes,
366; cannot try military or ecclesiastical offences, 367;
can punish innominate offences, ib.
Circuits of Justiciary, when and where held, 367; constitution
and jurisdiction of Circuit Courts, ib.
Inferior Courts, 368 et seq.
Sheriff Court, 368; history of office of Sheriff, ib. and note;
his present civil jurisdiction, 368; criminal jurisdiction
formerly very great, 369; its present limits, ib.; procourts—continued.

curator-fiscal is public prosecutor in Sheriff Court, ib.;
powers under Bankrupt Act, etc., 369.
Sheriff-depute, his duties, 369.
Sheriff-substitute, his appointment and duties, 370.
Small Debt Courts, 370 et seq., 391, 392; Sheriffs and
Sheriff-substitutes the most frequent judges in small
debt. — See Justices' Small Debt Courts, 378; Prosecutor
and defender state their own cases, 370; procedure
in court, ib., 371; no record kept, ib.; decisions
generally final, ib.; when appeal to Justiciary or Circuit
Court, ib.; jurisdiction raised to L.12, ib. — Circuit Small
Debt Courts, ib.; law of evidence, ib. (see Evidence). —
Police Court of Sheriff, 372; Sheriff's police jurisdiction
in Edinburgh cumulative with that of civic authorities,
ib.; period of imprisonment limited to sixty days, ib.
Burgh Courts, 373; still held by magistrates for disposal
of civil causes, ib.; magistrates in some burghs justices
of the peace, ib.; special justices for Edinburgh, ib.;
Edinburgh magistrates admirals of ports of Leith and
Newhaven, ib.; jurisdiction as such confined to dredging
of oysters, ib. — Dean of Guild's Court, its jurisdiction,
374; does not extend to portion of burgh brought under
magistrates' jurisdiction by 19 and 20 Vict., c. 32, ib.
Justice of Peace Courts, 374. — See Justice of Peace Criminal
Jurisdiction, 377.
Court of Lord Lyon. — See Lord Lyon, 379.
Courts, Ecclesiastical, their history and character, 380.
Kirk-session, ib.; is root of Presbyterian system, ib.; its
constitution, ib.; its duties, ib.; power with reference to
collections, 381; relation to Board of Supervision, ib.
Presbytery superior to kirk-session, ib.; bounds of its jurisdiction
fixed by General Assembly, lb.; present number
of presbyteries, ib.; constitution, ib.; it examines candidates
for ministry, and grants license to preach, ib.; tries
qualifications of presentees, 382; ordains, inducts, and
superintends them, ib.; judges charges against them, ib.;
judges and superintends schoolmasters, ib.; examines
schools, ib.; its functions as civil court, ib.; is court of
appeal from kirk-session, ib.
Synod is superior to presbytery, ib.; sixteen in Scotland,
Courts — continued.
ib.; its constitution, ib.; meets twice a year, 383; is
court of appeal from presbytery, ib.
General Assembly, 383; is highest ecclesiastical court, ib.;
its constitution, ib.; time of meeting, ib.; care taken to
prevent collision between ecclesiastical and civil power,
ib.; Moderator, ib.; Commissioner of Assembly, 383,
384; procurator, ib.; agent, ib.; and other officers,
ib.; overtures to General Assembly, ib.; petitions to
General Assembly, 385.
Commission of General Assembly, ib.; its constitution, ib.;
stated meetings of, lb.; incidental meetings of, ib.; when
proceedings of General Assembly subject to review in
civil courts, ib.; Presbyterian dissenting bodies governed
in the same manner as the Established Church, ib.
Courtesy, 31, 32, 33. — See Husband and Wife.
Crimes, public prosecutor of, 2, 365, 369, 393.
Crimes prescribe in twenty years, 222.
Criminal actions, 393; conducted by public prosecutor, ib.; only
requisite to give information to procurator-fiscal, 369, 393.
Criminal Courts. — See Court of Justiciary, 366; Sheriff Court,
369; criminal jurisdiction of Sheriff, 369.
Crime, when committed, what steps require to be taken, 393.
Cropping, mode of, 235.
Cruves, 2.
Curator ad litem to wife, 13. — See Husband and Wife.
Curatory, 55, 66. — See Guardianship.
Custody of child. — See Parent and Child; see also Guardianship,
60.
Customs, the groundwork of legal arrangements, 1.
D
Damage, inevitable effect of, on agricultural lease, 233.
Damage, when shipmasters, innkeepers, and stablers liable for,
243; railway, when liable for, 243, 244; hackney coachmen,
244; lodging-house keepers, 245.
Damage by game, 231; by vermin to town-house, 239.
Damages, actions of, 355. — See Jury Court.
Damages, when covered by insurance. — See Insurance.
Days of grace, 275, 276. — See Bill.
Dead's part, 162.
Dean of Faculty, 386. — See Advocates.
Dean of Guild's Court, 374. — See Court.
Dean of Guild, application may be made to, where landlord refuses
to indemnify for repairs. — See Dean of Guild's Court, 238.
Deathbed, law of, 153 (see Succession); lease granted on, when
effected, 230.
Debt-Sheriff Small Debt Court, 370; Justices' Small Debt
Courts, 378. — See Court.
Debt, Small, Court of, mode of raising or defending action in,
391.
Debt, life policy assigned in security of, 317, 318.
Debt, securities for, 331.
Debtor. — See Bankruptcy, 250.
Deeds, how executed by married women, 24; for bequeathing
heritage, 136 et seq.; for bequeathing moveables, 162 et seq.;
rules for making a will, 163; form of will, 166.
Deeds, execution of, 163.
Delectus personæ, 281.
Deliberandi, annus, 136.
Delivery, actual and constructive, 183 et seq. — See Sale.
Depute, advocates, prosecute in Court of Justiciary, 365.
Desertion, malicious, a ground for divorce, 38.
Destination of lease, 232; in succession in general, 128, 129, 130.
Diligence, what amount of, required in guardians, 63.
Diligence on bills and notes, 278.
Discussion, 300. — See Cautionary.
Disposition, 136.
Dissenters, Presbyterian, how governed, 383. — See Courts, Ecclesiastical.

Division of the Work, grounds on which adopted, 349. — See also
Preface.
Divorce, 34. — See Husband and Wife.
Domicile, wife's follows husband's, 13.
Donations between husband and wife, 28, 29.
Dovecots, 217. — See Pigeon-Houses.
Dramatic works, 324. — See Copyright.
Drunkenness. — See Master and Servant, 94.
Ducks, wild, not game, 232.
Duty on bills and promissory notes, 273.
Ecclesiastical Courts, 380. — See Courts.
Edict nautæ, caupones, stabularii, 243.
Engagement, 226.
England, Union with, its effects on the law of Scotland, 1, 2.
Engravings, copyright in, 322.
Enlistment, 88. — See Master and Servant.
Entails, 139. — See Succession.
Episcopalians, 7.
Equity, distinction between, and law, not recognised in Scotland,
353.
Error invalidates contracts, 177.
Evidence, law of, resembles that of England, 2.
Evidence, alterations in law of; 371, 372; witness is admissible
notwithstanding relationship, 372; not excluded by crime, ib.;
may be examined with reference to credibility, ib.; party may
be examined, ib.; agent may be examined, ib.; parties themselves,
husbands and wives, cannot be examined against each
other, ib.; advantages of Sheriff's small debt jurisdiction, ib.;
Sheriff's Police Court.
Evidence, damage, how proved against shipmasters, innkeepers,
and stablers, 243.
Evidence of resting owing, 225.
Examination of bankrupt, 258; of conjunct and confident persons,
259. — See Bankruptcy.
Exchange, bill of, 266. — See Bill.
Exchequer, Court of, 357.
Executor, nomination of, in will, 164; confirmation of, 167.
F
Facile persons, 76. — See Guardianship.
Factor, 62; factor, judicial, 252; factor, interim, ib.
Farm, 227. — See Letting and Hiring.
Farm servants' wages are privileged debt, 169.
Feal and divot, 213; fuel, ib.
Fear invalidates contracts, 4, 177.
Fiscal, Procurator, 369. — See Sheriff Court.
Fire insurance, 313.
Fisheries, convention regarding, between England and France,
210.
Fisk, or exchequer, 331.
Fixtures under agricultural lease, 233, 234, 235.
Flumenis, servitude of, 214.
Force invalidates contracts, 4, 177.
Foreigners entitled to relief under poor law, 341.
Foxes, tenant may kill, 232.
France, effects of connection with, on the law of Scotland, 1; internationalisation
with, ib.; College of Justice and other judicial
arrangements borrowed from, ib.
Fraud, 177.
Fruit-trees, statute for preserving planting includes, 231.
Fugæ,meditatio, warrants granted by justices, 376.
Funeral expenses are privileged debt, 169.
Furniture, landlord's hypothec extends to, 239.
Game, 218, 231, 232.
Gaming debts, 179.
Gardeners may remove hothouses on termination of lease, 235.
General Assembly, 383. — See Ecclesiastical Courts.
Glebe, 216. — See Property.
Goods, 20. — See community of.
Governors, same as tutors, 58. — See Guardianship.
Grace, days of, in bills and notes, 275, 276.
Guarantee associations, 300, 305. — See Cautionary.
Guardianship, 55; divided into tutory and curatory, ib.; distinction
between them, ib.; periods of life to which they apply,
ib.; Roman law, 56.
Tutory — pupils must act by their tutors, ib.; exception borrowed
from Roman law, 2b.; how pupil sues, ib.; tutor
ad litem, when required, ib.; unborn child, ib.; father is
both tutor and curator, ib.; he is called administratorat-law,
57; grandfathers require appointment, ib.; father of
bastard not his administrator-at-law, ib.; where child has
property from third party, lb.; religious opinions no disqualification,
ib.; can outlaw be tutor? ib.; or alien? ib.
Testamentary tutors, ib.; who may appoint them, ib.; may be
either male or female, if latter, unmarried, ib.; must be
twenty-one, ib.; father cannot nominate tutors to bastard
children, but may appoint manager of funds left them, ib.;
Guardianship — continued.
governors may be used for tutors in deed of appointment, 58;
several tutors may be appointed, ib.; testamentary tutors
do not require to find caution, etc., ib.; they must make up
inventories, ib.; their liabilities, ib.; factor to the trust, ib.
Tutor-at-law, 58, 59; he is the nearest male agnate, 59; female
cannot be tutor-at-law, ib.; bastard cannot have tutor-atlaw,
ib.; tutor-at-law must be twenty-five, ib.; he must be
legally vested in the office by service, ib.
Tutor-dative, appointed by Court of Session where there are no
other tutors, 59.
Tutors may accept or decline; inventories appointed to be
made by stat. 1672, c. 2; what they must contain, etc., ib.
Custody of child, when entrusted to tutor, 60, 61; nearest cognate,
when chosen, ib.; Court of Session regulates custody,
and Sheriff in case of bastards, ib.
Education of pupil, by whom regulated, ib.
Tutor cannot change the succession, 62; nor speculate with
pupil's funds, ib.; what if father was in trade, ib.; tutor's
liability for factor, ib.; salary, ib.; if tutor is factor, he has
no salary, ib.; tutor cannot lend to, or borrow from,
pupil, ib.
Diligence required of different kinds of tutors, 63; all except
testamentary tutors are now under the provisions of the
Pupils' Protection Act,ib.
Termination of tutory, 63, 64, 65; (1.) pupil's arrival at puberty,
63; (2.) death of tutor or pupil, ib; (3.) marriage of female
tutor, 64; (4.) occurrence of contingency, ib.; (5.) resignation,
ib.; (6.) removal as suspect, ib.; action of count and
reckoning, 65; tutory is gratuitous, ib.; action of accounting
prescribes in ten years, ib.
Curatory, 66; curatory, its objects, ib; minor may perform all
the acts of major without curators, under certain qualifications,
ib.; quadriennium utile, ib.; effect of deed by minor
having curators, without consent, ib.; minor may test, ib.;
may sell heritage, ib.; cannot convey it gratuitously, ib.;
minor cannot hold a public office, ib.; cannot be juror, ib.;
or commissioner of supply, lb.
Who may be curators, 67; (1.) how curators are appointed
ipso jure, ib.; (2.) by testament, ib.; (3.) by choice of minor,
68; (4.) by Court of Session, ib.
Guardianship — continued.
All curators may decline, ib.; are bound to make up inventories,
ib.; curator has no power over minor's person, 69;
curator's duty to advise him as to education and occupation
in life, ib.; where minor and curator disagree, ib.; diligence
prestable by curators, ib.; curatory terminates in the same
manner as tutory, ib.; like tutory, is gratuitous, 70; minor
cannot alter succession to heritage with curator's consent,
ib.; minority and lesion, what? ib.
Pro-tutors and pro-curators are persons who act without title,
71; not favourites of the law, ib.; responsibilities which
they incur, ib.; their accounting, 72.
Factors loco tutoris and curators bonis, ib.; extent to which
they have superseded private guardians, ib.; are under
Pupils' Protection Act, ib.; are generally professional persons,
ib.; females may be appointed, 73; ministers of Established
Church, ib.; competition for the office, ib.; petition
to junior Lord Ordinary, ib.; where minor illegitimate, ib.;
provisions of Pupils' Protection Act, 74, 75, 76.
Cautioners for guardians, 76; for what guardians required, ib.;
their liabilities, ib.
Guardianship for facile and insane persons, ib.; sovereign is guardian
as pater patriæ, ib.; his duties delegated to tutors
or curators, ib.; how fact of insanity or facility ascertained,
77; question put to jury in inquests, ib., note 2;
guardians to the insane subject to Pupils' Protection Act,
78; termination of office, ib.; convalescence, ib.
Curators bonis to the insane appointed by the Court of Session, 79;
proceedings necessary for their appointment, ib.; termination
of office, ib.
Interdiction, 80; to what degree of mental imbecility to which
applicable, ib.; (1.) voluntary interdiction, ib.; (2.) judicial
interdiction, ib.; interdiction confined to heritage, 81; to
what deeds prodigus is competent, notwithstanding interdiction,
ib.; termination of interdiction, voluntary and judicial,
82.
Guild, Dean of, 374.
H
Harbours, 310. — See Ports.
Hackney coachmen, if responsible for goods, 244.
Heir, 137, 138.
Heir of tailzie. — See Entail, 139 et seq.
Heirs portioners, 132, 133.
Heres, ultimus, 134.
Heirship moveables, 127.
Heralds. — See Lyon Court, 379.
Heritable property, rights and burdens attaching to, 206. — See
Property.
Heritable and moveable. — See Succession, 126 et seq.
Heritors 337. — See Poor.
Herring fishery, 210.
Highway, 207.
Hiring, contract of letting and, 226.
Holograph writings, prescribe in twenty years, 222.
Homologation, 178. — See Contracts.
Honour, acceptance of bill for, 271.
Horses, implied warranty in sale of, abolished, 189, 190.
House of Lords, 352, 353, 363, 364.
Houses, renting of, 238.
Housekeeper or daughter may contract for necessaries, 15.
Hunting and shooting, 218, 231, 232. — See Lease.
Husband and wife, 3.
Constitution of marriage, ib.; it is a civil contract, constituted
by consent, lb.; not in all respects on an equality
with other contracts, 4; idiots, madmen, and pupils,
cannot marry, 4; contract invalidated by force, fear, error,
and intoxication, ib.; age at which males and females
may marry, ib.; effects of extreme youth, 5; consent of
parents and guardians not required in minority, and
does not enable pupils to marry, ib.; consent must be to
a present act, ib.; all ante-nuptial contracts and promises
to marry may be resiled from, ib.; they are grounds for
actions of damages, ib.; where sexual intercourse has
taken place, promise becomes marriage, ib.; damages for
seduction, ib.
Regular marriages, ib.; do not require to be in church, 6;
banns, regulations as to publication of ib.; registration required
by statute, ib.; of irregular and clandestine marriages,
ib.; Jews and Quakers, ib.; proclamation in Scotland valid
in England, 7; foreigners, soldiers, and sailors, may be proclaimed
in Scotland without residence, ib.; Dissenting clergyHusband
and wife — continued.
men may marry, ib.; Episcopalians, ib.; form of marriage
service, ib.
Irregular and clandestine marriages, distinction between them, 8;
the latter expose the parties celebrator and witnesses, to
penalties, ib.; no particular form of consent is required, either
verbal or written, to constitute marriage, ib.; it is inferred
from habit and repute, ib.
Impediments to marriage, 9; impotency, ib.; previous marriage,
ib.; adultery, ib.; relationship within certain degrees, ib.
sister of deceased wife, 9, 10, and Note.
Effects of marriage on status and property; wife's person sunk in
husband's, 10; she takes his name and rank, ib.; he is her
curator, ib.; he manages the common fund, ib.; wife's personal
obligations are invalid, ib.; bills granted by wife, ib.;
husband's consent, and wife's ratification before judge, completes
obligation, ib.; wife cannot be sued, 11; she may insist
on obligations entered into with her by others who
knew she was married, ib.; exceptions to the rule that obligations
by married women are null, 10-12, 13; curator ad
litem may be appointed to supply the place of husband where
wife has a separate interest, 13; or if he is insane, abroad,
in banishment, has an unknown residence, or refuses to
concur.
The domicile of wife follows that of husband, 13; husband's
liability for debts contracted before marriage, ib.; he is
liable for wife's marriage-clothes, 13, 14; debt after proclamation
of banns, 14; husband's liability ceases with the
marriage, ib.; execution cannot take place against wife
during marriage, ib.; wife's separate estate, ib.; her heritable
debts, ib.; tocher, Court fixes what is a moderate, ib.;
husband is liable, after wife, to the extent to which he
is lucratus, 15; but only after her heirs, ib.; wife is domestic
manager, and can bind husband in that capacity, ib.; but
only for necessaries, ib.; tradesmen must exercise discretion
as to what are necessaries for a person in husband's condition,
16; husband liable for dress worn in his presence
without objection, ib.; wife cannot borrow money as
manager, ib.; if husband has paid interest he will be liable,
ib.; wife cannot sell or pledge husband's property, ib.; she may
hire servants, ib. (see Master and Servant); her own estate
Husband and wife — continued.
is not liable for necessary debts, ib.; when wife is husband's
mandatory, 17; when commissioner, ib.; but in general no
act is excepted from his curatory, ib.
How husband ceases to be liable for wife's debts, 17; inhibition,
what, and when used, ib.; its form, 18; no notification of
inhibition necessary to merchants, ib.; exception to its
validity, ib.; private notice has same effect as to particular
tradesmen, ib.; where husband turns wife out of doors, he
is still bound to maintain her, ib.; not if she leaves him
without sufficient cause, ib.; adultery of husband is sufficient
cause, ib.; husband must maintain her, even if she have
deserted him when insane, lb.; if she has an allowance,
tradesmen must rely on it, ib., 20.
Of the community of goods; origin of the doctrine, 20; what in
law of Scotland, ib.; effect of 18 Vict., c. 13; where wife
predeceases, her executors have no claim, lb.; dissolution of
marriage within year and day, ib.; husband's proprietory
powers do not extend to heritage, ib.; heritable and moveable,
ib. — See Succession.
How husband's power excluded, 22; it may be by nature of the
subject, by implication or expressly, ib.; he cannot affect
her separate provision, ib.; what if greatly in excess of her
wants, ib.; paraphernalia not under husband's power, ib.;
what included under paraphernal goods; wife's power over
her heritage, with husband's consent, 23; jus mariti and
right of administration distinguished, ib.; what if either
excluded, ib.; what if both excluded, 23; effect of separation,
voluntary and judicial, 24; of husband's insanity, ib.;
how married woman executes deed, ib.; wife entitled to
aliment pending action of separation or divorce, ib.; not if
she have separate estate, ib.
Separation, judicial and voluntary, 25; adherence a sacred
duty, ib.; two grounds of separation, cruelty and adultery,
ib.; personal violence, what, ib.; threatening words, what,
ib.; lasciviousness falsely imputed, ib.; austerity no ground
for separation, ib.; nor habitual intoxication alone, 26;
desertion, ib.; husband may forbid visits from wife's friends,
ib.; may regulate her movements and pursuits, ib.; his
crimes are ground of separation, ib.; adultery is a ground,
ib.; not disease, ib.; judgment in action of separation will
Husband and wife — continued.
not be pronounced on admissions by defender, 27; judicial
separation takes away husband's power over person, ib.;
effects on patrimonial relations, ib.; custody of children,
ib.; may be recalled by mutual consent, ib.; law-burrows,
what, ib.; different when used in case of third parties, 28;
voluntary separation not enforced with regard to future,
but regulates rights as regards past, lb.; nature of the
contract, ib.
Donations between husband and wife; revocable by donor, 28;
not future donations, if marriage dissolved, 29; previous
donations revoked by divorce; renunciation of jus mariti is
a donation which husband may revoke, ib.; revocation may
be tacit, ib.; general conveyance does not infer revocation,
ib.
Dissolution of marriage, 29; by death, survivor may marry, ib.;
widow's claim for aliment till first term, ib.; her claim has
no preference, ib.; terce, what, 31; lesser terce, ib.; courtesy,
what; does not emerge unless living child be born, ib.; child
must be mother's heir, 32; what if legitimated by subsequent
marriage, ib.; to what heritage does courtesy extend, ib.; it
vests without service, ib.; courtesy, claim to, barred by express
discharge, 33; jus relictce, what, ib.; division of moveables
where there are children, ib.; where there are no children, ib.;
jus relictce not taken away by provision, unless renounced, ib.;
not affected by husband's will, ib.; may be diminished by
his management, ib.; personal bonds are excluded from it,
ib.; wife cannot compete for it with creditors, ib.; it pays no
legacy duty, ib.; wife's children by former marriage, ib.;
not affected by dissolution of marriage within year and day,
34; where wife predeceases, ib; legitim, 34. — See Parent
and Child.
Divorce, 34; two grounds, adultery and desertion, ib.; Scotch
law in accordance with that of the rest of Europe, except
England.
Adultery, 35; not introduced by statute, ib.; competent
whether committed by husband or wife, ib.; not adultery if
one spouse is constrained, ib.; or entertains false belief of
death, ib.; only aggrieved spouse can pursue, ib.; adultery
may be committed abroad, ib.; jurisdiction of Scotch Court,
35, 36; oath of calumny. ib.; what is collusion, 36, 37;
Husband and wife — continued.
proof of adultery, 37; no divorce if injured party has connived
or been reconciled, ib.; recrimination no bar, 38; long
delay, ib.; desertion will not justify adultery, ib.
Malicious desertion a ground for divorce, 38; apostolic sanction
of, ib.; how obtained, ib.; first step is to raise an action of
adherence, ib.; it may be raised after one year, but four must
elapse before decree of desertion can be pronounced, 39;
how service on defender abroad is effected, ib.; what if defender
has foreign domicile, 40; acts which would justify
separation are defences against divorce for desertion, ib.; it
is desertion if wife will not follow husband anywhere, ib.
Effects of divorce, 40; parties may marry, except adulterer
and paramour, ib.; effects of divorce for desertion, ib.; of
divorce for adultery, ib.
Declarator of nullity of marriage, 42; marriage however celebrated,
declared null, if natural or legal impediments intervene,
ib.; declaratory of nullity may be instituted by third
parties, ib.; large damages often given, ib.
Consistorial actions, 42; before what courts competent, ib.;
decree cannot be pronounced in absence, ib.
Marriage contracts, 42; conditions must not be at variance
with conjugal relations or public law, ib.; ante-nuptial contracts,
ib.; post-nuptial contracts, ib.; objects of such contracts
to provide against husband's imprudence or misfortune,
44; modes in which this is effected, ib.; conventional
arrangements must be express, ib.; post-nuptial provisions
of a reasonable amount valid, if made during solvency, ib.;
heritage, ib., 45; effects of different destinations, ib.
Hypothec landlords in agricultural lease, 237; in houses and
shops, 239.
Hypothec of landlord saved from operation of Mercantile Law
Amendment Act, 192.
I
Idiots and insane persons entitled to relief under Poor Law Act,
341; cannot marry, 9. — See Guardianship, 72, 76 et seq.
Illegitimate children (see Parent and child), 47, 48; aliment of.
both father and mother liable for, 52; custody of, 53.
Immoral contracts, 179.
Impediments to marriage, 9 et seq.
Imprisonment for debt, 251; for crime, 393.
Imprisonment, action for wrongous, prescribes in three years, 226.
Imprisonment of servant, 90.
Improvements (see Letting and Hiring), 226; on house, 238.
Indenture, 121. — See Master and Apprentice.
Indorsement, 271. — See Bill.
Infeftment, 200. — See Sale.
Inhibition, 18. — See Husband and Wife.
Initials, subscription by, 164.
Innkeepers, liabilities of, 243. — See Letting and Hiring.
Insanity of servant, 90. — See Master and Servant.
Insane and facile persons, guardianship of, 76.
Insolvency, 250. — See Bankruptcy.
Inspector of poor, appointment of, 339, 340. — See Poor.
Insurance, objects of, 308; premium, ib.
Marine insurance, ib.; underwriters, ib.; middleman or broker,
309; no insurance where no interest, ib.; gaming insurances
suppressed by statute, ib.; insurable interest, what, ib.; seamen's
wages not insurable, ib.; prohibition extends to mate
and inferior officers, not to captain or master, ib.; insurance
which involves a breach of law null, ib.; risks to which
marine insurance applies, 310; policy, ib.; slip, ib.; formalities
in execution of policy, ib.; effect of mercantile usage
in construing, ib., 311; policy bears receipt of premium,
ib.; warranty, ib.; express warranties, ib.; implied warranties,
ib.; sea-worthiness, ib.; non-alteration of voyage,
312; non-deviation, ib.; total loss, ib.; abandonment, 313;
partial loss or injury, ib.; capture and arrest of princes,
ib.; re-insurance, ib.; double insurance, ib.
Fire insurance, 313; premium, ib.; policies without interest forbidden,
314; real interest, what; policy, how executed and
what it implies, ib., 315; warranty, ib.; what policy covers,
ib.; insured must give proof of amount of injury, 316; must
give notice of other insurances, ib.; no abandonment in
fire insurance, ib.; loss generally settled by arbitration, ib.;
foreign companies, insurances by,
Life insurance, what, 316; there must be interest, 317; creditor
has insurable interest, ib.; question if father has, ib.; wife
and children have, ib.; warranty, ib.; declaration as to
health, ib.; death abroad or at sea, ib.; death by suicide,
Insurance — continued.
duelling, or the hand of justice, ib.; life policies assigned in
security of debt, ib., 318; assignment in sequestration carries
policy, ib.; provision as to deduction of annual premiums
from income-tax, ib.
Interdiction, 80.
Interruption. — See Prescription.
International copyright, 323.
Interest, legal, five per cent., 332.
Invention, 330. — See Patent.
Inventories. — See Succession.
J
Jews, 6.
Joint trade, 287. — See Partnership.
Joint ownership, 288. — See Partnership.
Joint-stock companies, 288. — See Partnership.
Joint-Stock Companies' Registry Office, 291.
Joint-Stock Companies' Act, ib. et seq. — See Partnership.
Jointure, 44. — See Husband and Wife.
Judges, supreme, 349 et seq.
Judicatum solvi caution, 307.
Judicial proceedings, 390.
Judicial caution, 306.
Juratory caution, 307.
Jurisdiction of Court of Session, 352.
Jus mariti, how excluded, 22; husband may revoke renunciation
of, 29. — See Husband and Wife.
Jus relictæ 33. — See Husband and Wife.
Justice, College of, privileges of its members, 353.
Justice-Clerk, Lord, 351.
Justice-General, Lord, 364. — See Court of Justiciary.
Jury Court, 354 et seq. — See Court. Jury in Court of Justiciary,
365.
Justiciary, Court of; 364. — See Court. No appeal from to House
of Lords, 364, 366.
Justice of peace, 374; office is of English origin, ib.; history of
its introduction into Scotland, ib.; quarter sessions, 375;
Treaty of Union, its provisions with reference to justices of
the peace, ib.; commission of justices falls by demise of the
crown, ib.; officials who are justices ex officio, ib. ; solicitors
and procurators in inferior courts cannot act as justices, ib.;
no qualification of rank or property required, ib.; no pecuniary
recompense, ib.; sums actually expended reimbursed, ib.;
quarter sessions, days for holding, ib.; petty sessions, when
called, 376; judgments of, reviewed by quarter sessions, ib.;
quorum, ib.; one justice cannot act as judge, but may grant
warrant, ib.; appeal to circuit court competent both from
petty and quarter sessions, ib.; regulation as to voting in
bench of justices, ib.; limits of jurisdiction of justices, ib.; servant's
wages, ib.; actions for aliment, ib.; warrants in meditatione
fugæ, ib.; warrant of law-burrows, 377; justices in Scotland
do not try by jury, ib.; limits of their criminal jurisdiction,
ib.; whipping, may pronounce sentence of, and hard
labour, ib.; powers in revenue questions.
Justices of the peace, their jurisdiction under the General Road
Act, 208; highways, fishings, and game, ib.; they grant
licenses to publicans, ib.; justices' small debt courts, 378;
code for their guidance, in what statutes contained, ib.; jurisdiction
confined to cases not exceeding L.5, ib.; proceedings
before them, ib.; their sentences, when subject to review, ib.;
clerk of the peace, 379; is practically assessor to justices appointed
by crown, ib.
K
Kelp, right of taking, not included in parts and pendicles of
farm, 231.
Kirk-session, 380. — See Ecclesiastical Courts.
L
Lading, bill of, 192, 193, 242.
Lading, bills of, pass by indorsation, 272.
Landlord and tenant. — See Letting and Hiring, 226 et seq.
Law, practitioners of, 386; divided into various classes, ib.;
see advocates, ib. ; writers to the signet, 387; solicitors before
the Supreme Courts, 389; solicitors-at-law, ib.; provincial
writers, ib.; notaries-public, 390.
Law-burrows, 27. — See Husband and Wife.
Lease. — See Letting and Hiring, 226.
Leases, agricultural, made effectual against singular successors
by statute, 1449, c. 18; 2, 227.
Lectures, copyright in, 323.
Legacy. — See Succession.
Legacy duty, jus relictæ does not pay, 33. — See also Succession,
169, 170.
Legitim, 34. — See also Parent and Child.
Legitimation, 32, 46. — See Parent and Child.
Lesion, minor restored against deeds to his hurt on proof of,
66, 71.
Lesser terce, 31.
Letting and hiring, contract of, 226; principles of contract of
sale applicable to, ib.; called lease or tack when applied to
land, ib.; called agreement when applied to house or shop,
ib.; called engagement when applied to services, ib.
Lease, agricultural, 227; what constitutes a tack, ib.; verbal
lease effectual for one year, ib.; effect of rei interventus on,
ib.; may be proved by oath of the granter, ib.
Lease written, ib.; must be written on stamped paper, and
authenticated as a probative deed, ib.; defects in formality,
how supplied, ib.; in what forms lease may be granted, ib.;
terms of the statute, ib., 228; interest attaching to in an
historical and agricultural point of view, ib.; lease does not
fall under the statute unless rent and term be definite, ib.;
statute will not cover leases of great length though period
be definite, ib.; building leases, ib.; liferent leases effectual,
ib.; to what subjects statute 1449 applies, ib., 229; provisions
of statute 20 and 21 Vict., c. 26, ib.; it has created
new title to lands in perpetuity, ib.; recording of long leases,
its effects, ib.; act merely permissive, ib.; recorded leases
may be assigned, ib.; assignations in security may be
recorded, ib.; provisions for their transmission.
Long leases, statute to provide for registration and assignation
thereof, 229 (see Lease); who may grant lease, 230; title of
granter must be completed, ib.; lease by husband effectual
against widow, ib.; lease of wife's estate without her consent
valid during husband's life, ib.; powers of tutor in letting
lands, ib. (see Guardianship); minor, lease granted by, ib.
(see Guardianship); death-bed, lease granted on, ib.; proprietor's
debts do not affect lease, ib.; bankruptcy takes
away power of leasing, ib.; trust transfers power of leasing
to trustee, ib.; effect of entail on powers of leasing, ib.; liferenter's
power, 231; liferenter may grant lease for lifetime.
Letting and Hiring — continued.
231; powers which the granter is presumed to reserve, ib.;
mines and minerals, ib.; trees and wood, ib.; responsibility
of tenant for injury done to by family and servants, ib.; kelp
not included in parts and pendicles, ib.; right of hunting and
shooting reserved, subject to liability for damage, ib.; tenant
cannot kill game, ib.; when entitled to damages for injury
by, ib., 232; cannot scare game, may scare pigeons, ib.;
rabbits not game, ib.; nor wood-pigeons, ib.; nor wild-ducks,
ib.; tenant may also kill vermin and foxes, ib.; not
tame pigeons, ib.; landlord may ride or walk over farm,
ib.; but not enter house or garden, ib.; destination of
lease, ib.; commonly settled by convention, ib.; interpretation
of stipulations, ib.; transmission of lease, ib.; power of
sub-letting not implied in lease for nineteen years, 233;
implied in lease beyond that period, ib.; inevitable damage,
ib.; conditions of the lease, ib.; warrandice, what it implies
on landlord's part, ib.; on tenant's part, ib.; removing fixtures,
ib.; fixtures, what, ib., 234; objects to which character
belongs usually determined by agreement, ib.; questions
as to fixtures decided in Scotland, ib.; in England, ib., 235;
gardeners may remove hothouses, ib.; fences cannot be
removed, ib.; tenant bound to leave in repair, ib.; mode of
cropping, ib.; removing, ib., 236; tacit relocation, ib.; warning,
ib.; judicial removing, provisions of, 16 and 17 Vict.,
c. 80, with reference to, ib.; hypothec, landlord's, 237; to
what it extends, ib.; crop, ib.; cattle and stocking, ib.
Letting of houses, shops, and other subjects, 238; principles
same as in agricultural lease, ib.; furniture and machinery
given over by inventory, ib.; written leases of urban tenements,
ib.; repairs, landlord bound to make, ib.; when tenant
may claim compensation, ib.; application to Dean of Guild,
ib.; when tenant must repair, ib.; vermin, tenant may throw
up lease if house uninhabitable from, 239; removing, formal
warnings unnecessary in burghal tenements, ib.; forty days
is timeous warning, ib.; country houses, formal warning
unnecessary, ib.; landlord's hypothec in houses and shops,
to what it extends, ib., 240; effects of travellers in inn and
lodgers in lodging-house not liable, ib.; tenant entitled to
sublet, ib.; bankruptcy of lessor or lessee, effect of, ib.
Letting and hiring of ships, 241; ship may be let either on
Letting and Hiring — continued.
charter-party or general freight, ib.; charter-party, what,
ib.; general freight, what, ib.; affreightment includes both,
ib.; charter-party a stamped writing, ib.; conditions implied
in both contracts, ib.; on owner's part, ib.; on freighter's
part, ib., 242; bill of lading, what, ib. (see also Lading, Bill
of); general rule as to shipowner's liability, fire excepted,
by statute, ib.; no liability for gold, etc., ib.; owner not
liable for embezzlement by servants beyond value of ship
and freight, ib.
Shipmasters, innkeepers, and stablers, 243; liable for goods and
effects committed to their care, under edict of Roman Praetor
Nantæ compones stabularii, ib.; answerable for servants,
guests, and passengers, ib.; damage may be proved by oath
of claimant in litem, ib.; cases in which liability does and
does not exist, ib.; liability of companies under Railway
and Canal Traffic Act, ib.; innkeeper may detain property
of guest who refuses to pay his bill, 244; railway, when
liable for luggage, ib.; carters and porters are carriers, ib.;
question, if hackney coachmen are, ib.; wharfingers and warehousemen
are not, ib.; question, if lodging-house keepers
are, 245; how decided in England, ib.; coffee-house and
public-house keepers, ib.; provision of Mercantile Law
Amendment Act as to loss from fire, ib.
Lessor and lessee. — See Letting and Hiring, 226.
Liability, limited, 292. — See Partnership.
Libraries, public, entitled to copies of books entered at Stationers'
Hall, 320. — See Copyright.
Licenses to publicans, 377. — See Justice of Peace.
License to preach, 381. — See Presbytery.
License to publish by Privy Council, 320. — See Copyright.
Lien. — See Pledge, 245.
Lien for wages, 105.
Liferent. — See Terce, 30.
Liferent, fee and, 45, 138.
Liferenter, his powers of letting, 231.
Light, servitude of, 214.
Limitation, 218, 219. — See Prescription.
Livery, servant's, 105.
Locality, 230, 260.
Location. — See Letting and Hiring.
Locus penitentiæ, 178.
Lords, House of, 352, 353, 363, 364.
Lord Lyon, Court of, 379; he is chief herald for Scotland, ib.;
has jurisdiction over heralds, pursuivants, and messengers-at--
arms, 379; his jurisdiction with reference to arms, 379; can
grant new arms to virtuous and well-deserving persons, ib.
Luggage, 240, 243, 244, 245. — See Letting and Hiring.
Lunatics, 76 et seq. — See Guardianship; see also Poor, 341.

M
Machinery of the law, 349 et seq.
Machinery, tenant entitled to remove, 234.
Machinery. — See Patent, 325 et seq.
Magistrates, 373, 374. — See Court.
Mails and duties, 334.
Managers, hiring of, 85.
Mandatory. — See Procuration, 269.
Mandate, 280. — See Partnership.
Manse, 216. — See Property.
Marine insurance, 308.
Mariners, 177 et seq. — See Master and Servant.
Married women, how deeds executed by, 24.
Marriage, 3 et seq. — See Husband and Wife; see also Entail, 144.
Marriage contracts, 42 et seq.
Marriage, subsequent, legitimation by, 47, 48.
Master and servant, 82; contract of service, ib.; contract voidable
by either party on payment of damages, ib.; every
person who may contract may be either master or servant, ib.
Verbal contracts, 83; endure only for a year, ib.; how completed,
ib.; may be proved by witnesses, ib.
Written contract, ib.; requisite if service to exceed a year, ib.;
stamp-duty, 84; earnest or arles, ib.
Implied contract, ib.; circumstances which constitute, ib.; when
one relative is servant to another, ib.
Duration of the contract, 85; no positive limit in point of time,
ib.; where no period is expressed, customary term is presumed,
ib.; domestic servants, ib.; presumption in favour of
six months, ib.; engagement from month to month, ib.;
rural servants, ib.; overseers, managers, etc., ib.; tutors,
governesses, and clerks, ib.; managers of banks and editors
Master and servant — continued.
of newspapers, 86; engagement during pleasure, ib.; terms
of entry, ib.; obligations of the servant, ib.; may servant
who deserts be imprisoned, 87.
Exceptions to the obligation on the servant to enter and continue in
the service, or on the master to retain him, 88; enlistment, ib.;
marriage of female servant, ib.; sickness, ib.; when caused
by servant's own misconduct, debauchery, or imprudence,
89; insanity, 90; imprisonment, ib.; servant bound to exercise
ordinary skill and assiduity, ib.; skilled labour, where
requisite, 91; unusual assiduity, ib.; servant must be careful
of master's property, ib.; servant not liable for every
damage he may occasion, 92; not liable if robbed of his
master's property, ib.; servant must be respectful, ib.
Dismissal, insolence a valid ground of, ib.; disobedience warrants
dismissal, 93; master not bound to assign reason for
order, ib.; is disobedience if servant insists for reason, ib.;
master may control servant's hours, ib.; Sunday out, ib.; servant
entitled to time to look for another place, 94, 111;
extent of absence for this purpose, ib.; drunkenness, ib.;
one aggravated instance will justify dismissal, ib.; hours of
labour, 95; holidays, ib.; kind of work, ib.; servant must
be willing to go beyond the precise line of his engagement
in case of emergency, 96; servant not bound permanently
to quit line of engagement, ib.; servant of all work, ib.;
servants in husbandry, ib.; servant's conduct must be decent,
ib.; if man-servant debauches female-servant, both may be
dismissed, 97; improper conduct out of the house will be
ground of dismissal, ib.; not if previous to engagement, ib.;
obscene or blasphemous conversation ground of dismissal, ib.;
family secrets, ib.; trade secrets, ib,; servant's earnings belong
to the master, ib.; inventions by a servant, 98; servant
is bound to accompany master, ib.; when and where, ib.,
99; admonition, when requisite, ib.; when wages due on
dismissal, ib.
Obligations of the master, 100; personal chastisement, ib.; attempting
the honour of a female, ib.; falsely accusing servant
of dishonesty, ib.; food and lodging, ib.; medical attendance,
101; when master liable for injuries sustained by servant,
ib.; liability of master for injury by servant to third party,
102; liability of master for contract by servant, 103; obliMaster
and servant — continued.
gation to pay wages, ib., 104; interest on arrears, ib.; deductions
for damage by the servant, ib., 105; hiring by an
overseer or other agent, ib.; when wages must be paid, ib.;
clothes and livery, ib.; servant's lien for wages, ib.; arrestment
of wages, 106; prescription of wages, ib.; death of
master or servant, ib.; competition between servants and
creditors, 107.
Character, giving a, ib.; damages for giving false character in
servant's favour, 108; is master entitled to assign servant
to another, ib.
Termination of the contract by master's death or bankruptcy,
110; servant not bound to return if improperly dismissed,
ib.; damages for enticing servant to leave, ib.
Termination of the contract of service, ib.; warning, ib.; old
and new style, 112; servant's obligation to depart and
deliver up property, ib.
Statute law relative to contract of service, ib.; prior statute
suspended by 4 Geo. IV., c. 34, ib.; its provisions, 113;
extended by 10 Geo. IV., c. 52; misconduct or misdemeanour,
what, ib.; statutes apply to apprentices, ib.; workman
must give a fair day's work, what, ib.; statutes do not refer
to menial or domestic servants, 114; complaint by servant
against the master, 20 Geo. II., c. 19; does it refer to
Scotland, ib., note; wages must be paid in current money,
1 and 2 Will. IV., c. 36 and 37, ib.; exceptions to these
enactments, 115.
Arbitration between master and workmen, ib.; statutes on
this subject, 116.
Employment of women and children in factories, restrictions
on the, statutes relating to, 116, 117.
Combinations among workmen illegal, by 6 Geo. IV., c. 129,
117.
Seamen, 117; Merchant Shipping Acts and other statutes relating
to, ib.; provisions of the Merchant Shipping Act, 17
and 18 Vict., c. 104, sec. 109 to 220; 117, 118, 119, 120;
if woman does seaman's work, can claim seaman's wages,
120.
MASTER AND APPRENTICE, ib.; contract of apprenticeship,
what it implies, ib.; |obligation may be gratuitous, or for a
consideration, ib.
Master and apprentice — continued.
Origin and nature of the contract, ib., 121; contract must be
written, ib., 122; is termed indenture, ib.; who may enter
into an indenture, ib., 122; stamp, ib.; indentures of apprenticeship
to sea service exempted from stamp duty, ib.;
pauper children, ditto, ib.
Obligations of master and apprentice, 123; enlisting, provisions
of Mutiny Act with reference to, ib., 124; master
entitled to earnings of apprentice, ib.
Dissolution of the contract, ib., 125; cautioners of apprentices,
ib.; master not bound to discuss apprentice before coming
on, ib.
Statutory provisions with reference to apprentices, 126.
Means and substance, how assessed for poor, 347. — See Assessment.

Memorandum of association, 292. — See Partnership, in Insurance,
310.
Measures, weights and, 185. — See Sale.
Medical attendance, 101. — See Master and Servant, 340; see
Poor; preferable debt, 169.
Meditatio fugæ warrant, 376.
Mercantile Law Amendment Act, 29. — See Cautionary.
Mercantile law of Scotland resembles that of England, 2.
Mercantile law of Scotland, history of the cultivation and study
of, 175.
Messengers-at-arms, 379; cautioners for, 306.
Middlemen, 192, 243.
Mill. — See Thirlage, 214.
Mines and minerals, 231.
Ministers. — See Courts, Ecclesiastical, Church.
Minors. — See Guardianship.
Models, copyright in, 323.
Moderator for Assembly, 384. — See Courts, Ecclesiastical.
Montgomerie Act, 141.
Moveable property, how distinguished from heritage, 126.
Moveable succession. — See Succession.
Moveable and heritable property, distinction between, 126 et seq.
Moveables, heirship, 127.
Moveables, succession in, 159; intestate, 159; testate, 161.
Moveables, sale of, 181.
Music, copyright in, 322.
N
Nantæ, caupones, stabu]arii, edict regarding, 243; notes, promissory,
and bills, 265; noting of protested bill, 276; notaries-public,
390; writers to the signet and other legal practitioners
are, ib.; functions of notaries, ib.; how admitted, ib.
Navigation laws. — See Mariner, 177.
Notary, 390.
Note, promissory, form of, 268. — See Bill.
Notice. — See Bill, 277.
O
Oath in litem, 243.
Obligations, cautionary, 299.
Oneris ferendi, servitude of, 214.
Overseers and managers, hiring of, 85.
Overtures to General Assembly, 2, 384.
Owner and occupants, mode of assessing under poor law, 347.
Oysters, jurisdiction of magistrates of Edinburgh with reference
to dredging, 373.
P
Paraphernalia, 22. — See Husband and Wife.
Parent and child, 46; legitimacy, what, ib.; presumptions for and
against, ib.; period of gestation, ib, 47; putative marriage,
47; children conceived, after impediment known, are illegitimate,
ib.; legitimation effected by subsequent marriage, and
by letters from the sovereign, ib.; letters from the sovereign,
48; bastards can now test, ib.; international questions, ib.;
domicile of father regulates moveable succession, ib.; situation
of the property regulates heritage, ib.
Paternal power, 49; greatest in rudest societies, ib.; when it
ceases in Scotland uncertain, ib.; custody of child belongs
to father, ib.; chastisement, ib.; father's powers do not
terminate with divorce, ib.; terminates with marriage of
daughter, ib.; court may control paternal power, ib.; is it
forfeited by refusal to aliment or educate, ib.; father differs
from trustees in this respect, 50; he is absolute judge of
Parent and child — continued.
education suitable for child, ib.; can he be compelled to
apprentice child to a trade? ib.; father's powers do not
belong to the mother in case of legitimate children, ib.
Duty of father to aliment child, ib.; neglect of this duty
punishable as a crime under Poor Law Statute, ib.; when
childhood is past, this duty is transferred to children, ib.;
order of liability of relations to aliment each other, ib., 51;
amount legally due, 51; where separate aliment due to
ascendants and descendants ib.; child may contract for
necessaries, ib.; father is not liable for child's crimes, 51;
where child is educated for a profession, father bound to
aliment till he receives employment, 51, 52; where child in
upper ranks is not trained to a profession, 52; where child
has separate fortune, ib.; daughters in higher ranks must
be alimented till marriage, in the lower till they are fit for
service, ib.; married daughters, ib.; obligations of heir, ib.;
child's duty of reverence and obedience, ib.; bastards, both
father and mother are liable for their aliment, ib., 53; failing
them, the mother's parish, 53 (see Poor); what if stranger
aliments, ib.; right to arrears of aliment prescribes in three
years, ib.; amount of aliment, ib.; claimable during life if
child be physically or mentally disabled, ib.; mother's claim
for inlying charges, ib.; custody belongs to mother, ib.;
where father may claim custody, ib.; general rule as to
custody of infants, ib.; evidence in actions of aliment, 54;
is the oath in supplement still competent, ib.
Guardianship of children. — See Guardianship, 55 et seq.
Partnership, 279 et seq.; origin and object of the contract;
société en commandite, ib., 288.
Partnership proper, 279, 280; avowed and anonymous partnership,
ib.; general or special partnership, ib.; implied
mandate, ib.; fraud renders company liable in reparation,
ib.; joint responsibility, 281; how company sued, ib.;
responsibility of partners to public and to each other, ib.;
private firm can hold lease, but cannot be feudally invested,
ib.; delectus personæ implied in partnership, ib.; heirs, assignees,
and creditors excluded, ib.
Constitution of contract of partnership, ib.; by tested deed,
ib.; by letters, minutes, or articles, ib.; by verbal agreement,
282; by facts and circumstances, ib.; presumption for
Partnership — continued.
equality of shares, where no stipulation, ib.; stipulations in
contract, their effect, ib.; duties of partners, ib.
Duration and dissolution of contract, ib., 283; withdrawal of
one partner dissolves, ib.; renewal by tacit consent, ib.;
notice of intention to withdraw not requisite, ib.; death of
partner dissolves contract, ib.; insolvency does not dissolve,
ib.; sequestration does, ib.; and private trust deed, ib.;
incapacity and misconduct, 284; marriage of female partner,
ib.; change of partners, ib.; dissolution in relation to third
parties, ib.; notice requisite, ib., 285; to customers, ib.;
to strangers, ib.; notice of death, ib.; winding up, 283,
285.
Accounting, rules of, 286, 287; diligences against bankrupt
company, 287; trust deed and sequestration, 287. — See
Bankruptcy.
Joint trade, ib.; joint ownership, 288; joint-stock companies,
ib.; distinctions between, and partnership, ib.; former law
of Scotland regarding joint-stock companies same as that
of France, ib., 289; Arran Fishing Company, case of ib.;
Bubble Act, ib.; principle of common law of Scotland
abandoned, ib.; Douglas Bank case, ib.; English doctrines
introduced, ib., 290; unlimited liability, unless company
limited, 290.
Limited liability not at first extended to banks or insurance
companies, ib.; restriction now removed as to banks, ib.;
insurance companies still excluded from privilege of limiting
their liability, ib.; Bank of Scotland's special Act limits
liability, ib.; Royal Charter, ib.; question as to its effects,
ib., 291; none of chartered banks do possess the privilege
in point of fact, ib.; Commercial Bank, ib.; National Bank,
ib.; Royal Bank, 291; powers of Crown in charter, ib.;
private joint-stock banks, ib.; name of firm, and names of
members and manager must be registered, ib.
Joint-Stock Companies Act, its provisions, ib. et seq.; seven
or more persons may form company with or without limited
liability, 292; more than twenty persons trading without
registration liable to penalties, ib.; memorandum, ib. et, seq.;
"limited" must be last word in name of company, ib.; Board
of Trade may appoint registrars, 293; provisions as to
existing companies, ib.; certificate of registration, and other
Partnership — continued.
provisions, 294; quorum of shareholders, 295; votes of
shareholders, ib.; directors, ib.; calls, ib.; dividends, ib.;
accounts, 296; winding up, 297; winding up by Court,
ib.; official liquidators, ib., 298; dissolution, ib.; voluntary
winding up, ib., 298; criminal prosecution of directors, ib.;
liability of former shareholders, ib.
Passage, servitude of, 212.
Pasturage, servitude of, 213.
Passengers Act, 18 and 19 Vict., c. 119, 117.
Patents, power of granting, part of royal prerogative, 325;
history of patent law, ib., 326; Patent Law Amendment Act,
its provisions, ib. et seq.; foreign inventions, 327, 328; actions
for infringement of letters patent, ib.; subsequent statutes relating
to patents, ib., 329; schedule of stamp-duties appended
to statute of 1853, note, 328, 329; principle cannot be patented,
ib., 330; simultaneous invention, ib.; aid in invention, ib.
Paternity. — See Parent and Child, 46, 47.
Patterns. — See Copyright, 324.
Pawnbroking, 248.
Peace, justices of the, 374 et seq.; clerk of the, 379.
Peers originally appointed to sit with Judges of Session, 350;
amenable to Court of Justiciary in ordinary crimes, 366; for
treason or felony, are tried by Court of Lord High Steward, ib.;
House of, 363.
Personae delectus, implied in partnership, 281.
Personal. — See Moveable, 126.
Petty sessions, when called, 376.
Physician. — See Medical.
Pigeons, tenant not entitled to kill tame, 233; may scare them
away, ib.
Planting, statute for preserving, 231.
Pledge and lien, what, 245; distinction between pledge and lien,
ib.; objects over which lien exists, 246; occasions in which
pledge is used, ib.; Warehousing Acts, Pawnbroking Acts, ib.;
pledge, how employed by Government, ib., 247; latest Warehousing
Act, ib.; provisions of, ib., 248; pawnbroking, history
of, ib.; present statutory requirements, ib.; who pawnbrokers
under recent Act, ib.; penalties recoverable from, ib.; before
what magistrates recoverable, ib.; protection from arrest in
sequestration, 251. — See Bankruptcy.
Poinding of the ground, 334.
Police Court of Sheriff, 372; of magistrates in burghs, 373.
Policy in marine insurance, etc. — See Insurance, 310.
Poor, 335; their former condition in Scotland, ib., 336; earlier
statute law, ib; begging permitted, and beggars furnished with
tokens, 337; statute which forms the basis of present law,
passed after accession, ib.; vagabond scholars of the universities
not licensed to beg, included in penalties, ib.; assessment
imposed, ib.; not actually enforced for upwards of a
century, ib.; management of poor transferred from magistrates
of burghs and justices to kirk-sessions and heritors, ib.; settlement,
residential, of three years introduced in Charles II.'s time,
338; continued till 1845, ib.; proclamations of Privy Council,
ib.; provisions of the earlier statutes and proclamations partly
penal and partly eleemosynary, ib.; former in desuetude; latter,
where unaffected by recent statute, still in force, ib.
Poor Law Act, 8 and 9 Vict., c. 83, provisions of, 338 et seq.;
Board of Supervision, ib.; Parochial Board, ib.; their respective
powers, 339; settlement, period necessary to acquire,
extended to four years, ib.; may be lost by non-residence,
ib.; removal of English and Irish paupers, ib., 341;
prosecution of husbands deserting wives, ib.; interim-maintenances,
right to claim, introduced, ib.; union of parishes,
ib.; inspector, 339 ; manuals on poor law, list of, 340, note.
Application for relief, how and to whom made, ib.; if relief
refused, pauper may go to Sheriff, ib.; if relief inadequate,
must go to Board of Supervision; medical attendance and
education, ib.; persons entitled to relief, ib., 341; Lunacy
Act, its provisions with reference to licenses for reception of
pauper lunatics in poor-houses, 341; foreigners entitled to
relief, ib.; cannot be compulsorily removed like English and
Irish paupers, ib; occasional relief, 342; former practice,
ib.; may now be claimed as a right under sec. 68; ablebodied
persons out of employment not entitled, ib.; relatives
bound to relieve, ib; bastards, 344.
Settlement, general rules as to law of, 344, 345; funds for
supplying relief, 345; church-door collections, 345, 346;
assessments, 346 et seq.; superintendents under poor law,
347.
Portioners, heirs, 132.
Preferable or privileged debts, 169.
Presbytery, 381. — See Ecclesiastical Courts.
PRESCRIPTION, 219; prescription and limitation distinguished,
ib.; limitation an English term, ib., note; positive and negative
prescription, ib.; forty years' prescription, ib., 220; statutes
relating to, ib.; to what it extends, ib.; how interrupted, 221;
the lesser prescription, ib.; vicennial prescription, ib.; holograph
writings, 222; of crimes, ib.; decennial prescription,
ib.; applies to accounts of tutors and curators (see p. 65);
provisions of Pupils Protection Act with reference to, 222;
bills and notes, 274; septennial prescription, ib.; applies to
cautionary obligations, ib.; sexennial prescription, 223; applies
to bills and promissory notes, ib.; quinquennial prescription,
ib.; triennial prescription, 224; shop accounts and servant's
wages, ib.; numerous cases of in Small Debt Courts,
225; resting owing, how proved, ib.; proof of resting owing,
ib.; applies to actions of spoilzie and ejectment, 226; and of
removing, ib.; and of wrongous imprisonment, ib.; and of
high treason, ib.
Prescription, long introduced by stat. 1469, c. 28, 2.
Prescription in cautionary, 302.
Presentation, caution by bond of, 300.
Presentment. — See Bill.
Proceedings, judicial, 390; forms of process not subject suited
for popular treatment, ib.; limits within which may be treated,
391; civil actions, ib.; Small Debt Court, ib.; mode of raising
or defending action in, 391; information given by Sheriff-clerk
on application at County Buildings, ib.; witnesses, rule
as to citing before Small Debt Court, 391, 352; must be present
at first calling, 392; agents generally admitted, if services
required, ib.; ordinary actions, ib.; every man may plead
his own cause, ib.; privilege rarely exercised, ib.; imprudence
of exercising it, ib.
Procuration, subscription of bills and notes by, 269; indorsation
by, 272.
Procurator-fiscal, 369.
Procurator of Church. — See General Assembly, 384; petitions
to General Assembly, 385.
Promissory notes and bills, 265.
Property, rights and burdens attaching to heritable, 206; public
burdens, ib. et seq; public roads or highways, 207; history
of statute law regarding, ib. et seq.; General Road Act, ib.;
Property — continued.
breadth of road, 208; Mr Sheriff Barclay's "Law of the
Road," ib.; "Digest of Law of Scotland for Justices of
Peace," 208; jurisdiction of Sheriff and Court of Session in
questions of right of way, ib., 209; sea-shore is inter regalia,
ib.; what it includes, ib.; navigable rivers, ib.; the sea, ib.,
210; convention between England and France regarding
fisheries, 210; ports and harbours, ib.
Railways, ib.; central control over, vested in Board of Trade,
211; property held under condition of being surrendered
for railway purposes, ib.; statutes relating to railways, ib.;
traffic on (see Carriage); cheap trains, 211.
Servitudes, 212; personal, ib.; predial or real, ib.; rural servitudes,
ib.; road or passage, ib.; distinction between servitude
and public roads, ib.; pasturage, 213; feal and divot,
ib.; fuel, ib.; aqueduct, ib.; watering of cattle, 214; urban
servitudes, ib.; support, ib,; stillicide and fluminis, ib.; light
or prospect, ib.; altius non tollendi, ib.; thirlage, ib.; stipend,
215; vacant stipend, ib.; the church, 216; presbyteries,
powers with reference to, ib.; their decision may be
reviewed by Court of Session, ib.; the manse, ib.; the
glebe, ib.; schoolmaster, his house, salary, etc., 217;
pigeon-houses, ib.; early statute law with reference to, 217,
278; present law with reference to, 218.
Protest of bill, 276.
Publicans, licenses to, 377; their responsibilities to public, 245.
Public prosecutor, institution of, derived from France.
Pupils' Protection Act, 222. — See Guardian, Parent and Child.
Pupilarity, when it ceases, 4.
Pursuivants. — See Lord Lyon, 379.
Q
Quakers, registration of their marriages, 6.
Quarter Sessions, 375; days for holding, ib.
Quinquennial prescription, 223.
Quorum (see Justices, 376); of trustees, 172 (see Trusts).
R
Rabbits not game, 232.
Railways, 210, 211.
Ranking, 262. — See Bankruptcy.
Ratification of deed by wife, 376.
Recrimination no bar to divorce for adultery, 38.
Registration of regular marriages, 6; of irregular and clandestine,
8.
Registration of ships, 194.
Regular marriages, 5. — See Husband and Wife.
Rei interventus, 178, 227.
Relationship, degrees of, that are impediments to marriage, 9.
Relatives, what, bound to relieve under poor law, 343.
Removing, 235, 239.
Removing fixtures, 233.
Removing, actions of, prescribe in three years, 226.
Repairs in letting of urban subjects, 238.
Resignation ad remanentiam, 201.
Responsibility of master for servant, 102; of shipmasters, innkeepers,
and stablers, 243.
Reviews, copyright in, 322.
Rights and burdens attaching to heritable property, 207.
Right of way, 208.
Rivers, navigable, 209.
Road, public, or highway, 207; servitude of, 212.
Rooming, and souming, action of, 213.
Roseberry Act, 141. — See Entail.
Roup or auction, 205.
Rutherfurd Act, 143-150. — See Entail.
S
Sabbath, 179.
SALE, OF THE CONTRACT OF, 180; its requisites, ib.; delivery,
181; transference of risk, ib., 182; rules as to transference,
182, 183; delivery, actual and constructive, 183; constructive
delivery, 184 ; failure to deliver, ib.; implied condition of
sale, 185; weights and measures, ib. to 187; implied conditions
continued, 187, 188; express conditions, 188; sale and
return, 189; special warranties, ib.; warranty of horses, ib.;
payment, 190.
Stoppage in transitu and retention of goods by the seller, ib. to 193;
the right of stoppage originated in a decision of the House
of Lords, 190; doctrine which it superseded, ib.; it exists
only in seller himself, ib.; same rule applies to retention under
Mercantile Law Amendment Act, 191; provisions of that Act,
ib.; landlord's right of hypothec and sequestration saved from
operation of, 192; payment of part of price does not take away
right to stop, ib.; nor delivery of a part, ib.; goods delivered
to persons acting as hands of buyer cannot be stopped, ib.;
who are middlemen, ib.; cases in which transit is at an end,
ib.; bills of lading, rules regarding, 192, 193; bankrupt in
Scotland, not entitled to take delivery, 193; modes of stopping,
ib.
Sale of ships, ib.; regulated by Merchant Shipping Act of
1854; all British ships, except certain small craft, must be
registered, ib., 194; registrars in and beyond the United
Kingdom, 194; transference of ships, ib., 195; mortgages,
195; their transference, ib.
Sale of heritage, 195; writing indispensable, ib.; minutes of sale or
written missives interchanged, ib.; constitution and transmission
of heritable rights regulated by feudal system, ib.; constitution
of feudal rights, ib. et seq.; superior and vassal, ib.;
the feu, ib.; the sovereign the universal superior, ib.; subinfeudation
in Scotland and England, ib, 197; fen charter, 197;
superiority and property, or dominium directum and dominium
utile, ib.; earlier and later usages, ib.; military tenures
abolished in Scotland, ib.; feu-duties, 198; casualties, relief,
and composition, etc., ib.; transmission of heritable rights,
ib.; recent legislation on the subject, note to 198, 199;
Lands Titles Act, its provisions, 199 et seq.; instruments
of conveyance, charters, dispositions, bonds, etc., 199; infeftment
and instrument of sasine no longer required, ib.;
substitutes for forms abolished, ib., 200; provisions of statute
merely permissive, and old forms may be adhered to, ib., 201;
further provisions for carrying out the principle of the Act,
ib.; instrument of resignation ad remanentiam dispensed with,
ib.; transmission to heirs, 203; writ of clare constat, ib., 204;
provisions for registration of, 204; repetitions in conveyances
dispensed with, ib.; extinction of mid-superiorities, ib.; actions
of constitution and adjudication against apparent heir, 205;
annus deliberandi, ib.
Sasine, 199. — See Sale of Heritage.
Scholars of universities not licensed to beg, subject to penalties
under Poor Law statutes, 337.
Schools and schoolmasters, 217.
Sculpture, copyright in, 323.
Sea-worthiness in marine insurance, what it includes, 311.
Sea-shore, 209. — See Property, rights and burdens attaching to.
Seamen, statute law relating to, 117.
Secrets, servant must not reveal, 97.
Securities for debt, 331; personal bond, ib.; when necessary, ib.;
when heritable and moveable, ib.; rate of interest on, 332;
contains clause of registration for execution, ib.; legal interest
5 per cent., ib.; heritable bond, ib., 333; bond and disposition
in security, ib.; absolute disposition with back bond, ib.;
inhibition, 334; modes of rendering securities effectual, ib.,
335; poinding of the ground, 334; actions of mails and
duties, ib.; provisions of Bankrupt Act with reference to these
diligences, 335.
Sederunt, Acts of, 3.
Separation, judicial and voluntary, 25. — See Husband and Wife.
Sequestration, 251. — See Bankruptcy.
Servant. — See Master and Servant, 82.
Servants, wife may hire, 16. — See Master and Servant, 82.
Service, entry by, 155.
Servitudes, 212. — See Property, rights and burdens attaching to
heritable.
Session, Court of, 349 et seq.
Settlement, 338, 339; general rules as to law of, 344, 345. —
See Poor.
Sexennial. — See Prescription, 223.
Sexual intercourse, 5. — See Husband and Wife.
Sheriff, history of office of, 368 and note.
Sheriff-depute and Sheriff-substitute, 369, 370.
Sheriff Court, 368 et seq. — See Court.
Sheriff, his powers under Poor Law Act, 340. — See Poor.
Shipmasters, liabilities of, 243.
Ship accounts, 224.
Ships, sale of, 194; renting of, 238. — See Sale and Letting and Hiring.
Shooting. — See Game.
Shops. — See Letting and Hiring.
Sickness of servant, 88, 89, 90. — See Master and Servant; see
also Medical Attendance.
Sick, when entitled to relief under poor law, 340, 341.
Sister, may one marry his wife's? 10.
Small Debt Courts of Sheriff, 370; of Justices, 378; cases of
prescription of shop accounts occur in, 224
Société en commandite, its nature, 288, 289, note.
Solicitor-General, prosecutes in Court of Justiciary, 365.
Solicitors (see writers to the signet), 387; solicitors before
Supreme Courts, 389; discharge functions entrusted to Writers
to the Signet, with some exceptions, ib.; mode of admission,
ib.; fees of admission, ib.
Solicitors-at-law, 389; their practice confined to Inferior Courts
in Edinburgh, ib. — See Writers.
Souming and rooming, action of, 213.
Spoilzie and ejectment, actions of, prescribe in three years, 226.
Sponsalia, 5.
Stablers, liabilities of, 243.
Stair, Lord, his opinion regarding marriage, 4.
Stationers' Hall, 320; register at, 321 (see Copyright).
Statute law of Scotland, two portions of, 2; earliest statute now
in force, ib.; Scotch statutes may be repealed by desuetude.
Steward, Lord High, his court for the trial of peers, 366.
Stipend, 214; prescription of stipend, 222.
Stoppage in transitu, 193. — See Sale.
Sub-letting of land, 233; of houses and shops, 240. — See Letting
and Hiring.
Subsequent marriage, legitimation by, 47.
Substitute-Sheriff, his appointment and duties, 370.
Substitutions, 137. — See also Entail.
Synod, 382. — See Ecclesiastical Courts.
SUCCESSION, HERITABLE AND MOVEABLE, 126.
Distinction between heritable and moveable property, ib.;
natural character, 127; accessory character, ib.; heirship
moveables, ib.; destination in, 128; incorporeal subjects, ib.;
accession in, 129.
Succession in general, ib.; limitations to proprietor's power of
disposing of his property, ib.; distinction between law of
succession in heritable and moveable property, 130; preference
of males, and primogeniture, ib.; the heir, ib.; the
executor, ib.; hareditas, ib.; representative is regarded as
same person as deceased. ib.; opening of the succession,
130; vesting, requisites in order to, ib.
Descent and consanguinity as applicable both to heritable and
Succession, heritable and moveable — continued.
moveable succession, 131; consanguinity, ib.; lineal descent,
ib.; lineal ascent, ib.; collateral kindred, ib.; full blood, ib.;
half blood, consanguinean, and uterine, ib.; relation between
full and half blood, ib.; how far relationship reckoned,
132.
Of heritable succession, ib.; of intestate heritable succession,
ib.; primogeniture, and preference of males, ib.; heirs portioners,
ib.; representation, 133; collateral succession, ib.;
ascending line, 134; ultimus hæres is the Crown, ib.; burdens
under which the Crown takes, ib.; conquest, what, ib.; rules
of succession in, 135; apparent heir, ib.; presumptive heir,
ib.; annus deliberandi, 136; heritable succession by deed, ib.;
distinction between a disposition and a will, ib.; conveyance
in general terms effectual, 137; substitutions, ib.; institute
and substitute, ib.; technical words in conveyances, ib.; heir,
ib.; heir male, ib.; heir of line same as heir-at-law, heir general,
heir whatsoever, ib.; heir male of line, ib.; heir of conquest,
ib.; heir female, ib.; heir male of the body, 138; heir
by destination, ib.; simple destination, ib.; clause of return,
ib.; power to name heir, ib.; limited destination, ib.; fee and
liferent, ib.; conjunct fee and liferent, ib.; substitutions with
prohibitions to alter, 139.
Of Entails, 139; same as tailzie, origin of the name, ib.;
general character of entails, 139, 140; history of entails in
Scotland, ib.; objections to them in early times, ib.; original
Entail Act, 1685, c. 22, ib.; its provisions, ib.; they
begin to be relaxed a century later, 141; first relaxations
in favour of estates, ib.; legislation of George II.'s time, ib.;
Montgomerie Act had same object, ib.; Aberdeen Act, its
provisions, ib.; Roseberry Act, 142; 3 and 4 Vict., c. 48,
and 4 and 5 Vict., c. 24, the Rutherfurd Act 11 and 12
Vict., c. 36 (1848), its leading provisions, 143-150; subsequent
legislation on the subject of entails, 150; provisions
of 16 and 17 Vict., c. 94 (1853), 150, 151; petitions and
applications under Entail Acts now go to Junior Lord Ordinary,
20 and 21 Vict., c. 56, 152.
Conditional settlements, 152; implied and express conditions,
ib.
Law of death-bed, 153; its objects, ib.; the two tests of vigour,
ib.; what deeds may be reduced, ib.; who may reduce, 154;
Succession, heritable and moveable — continued.
it is strictly confined to heritage, ib.; exceptions, ib.; mental
alienation, ib.
Entry of the heir, ib.; entry by service, 155, 156, 157; entry
by writ of clare constat, 157; provisions of Titles to Lands
Act,157, 158; entry by adjudication on a trust bond, 158;
entry to burgage property, ib.; charges abolished, 159.
Succession in Moveables, 159; intestate, ib.; distinction between,
and heritable, ib.; representation introduced into
moveable succession by 18 Vict., c.23 (1855), ib.; provisions
of the Act, 159, 160; wife's estate, 261.
Testate Succession in Moveables, ib.; testament and will the
same, ib.; who may make will, ib.; its requirements, ib.;
limits to power of testing, 162; jus relicts, legitim, and
dead's part, ib.; rules for making will, 163; verbal and
written, ib.; holograph, ib.; testing, ib.; blind person, ib.;
executor, 164; legacy, ib., 165; universal legacy, ib.; special
legacy, ib.; conditional legacy, ib.; substitutions, ib.; form of
will, 166 and note; collation, ib.; confirmation, 167, 168;
order of payment of debts, 169.
Taxes payable on succession, 169.
International law of succession, 170.
Sunday, contracts made on, 179; Saturday, slop, 2.
Superintendents under poor law, 347.
Supervision, Board of, 338, 339, 381. — See Poor.
Support, servitude of, 214; stillicide, ib.
Supreme courts and judges, 349 et seq.
Suspension, caution in, 307.
T
Tacit relocation, 235, 236.
Tacit renewal of contract of service, 110.
Tack or lease, 228. — See Letting and Hiring.
Tailzie, 139. — See Entail.
Taxed ward, 197.
Teind Court, 360. — See Court.
Tenant (see Letting and Hiring); not entitled to shoot pigeons,
218.
Terce, 31. — See Husband and Wife.
Testament, 161 et seq. — See Succession.
Thirlage, 214.
Tocher, what is a moderate? 14. — See Husband and Wife.
Town. — See Burgh, Court.
Translations, 323, 324. — See Copyright.
Transmission of lease, 233.
Transitu, stoppage in, 190 et seq. — See Sale.
Travellers, effects of, in inn, not liable for landlord's hypothec,
240.
Trees and wood, 231.
Treason, high, prescribes in three years, 226.
Triennial. — See Prescription.
TRUSTS AND TRUSTEES, 171; of trusts in general, ib.; of the
trustees; no specific number requisite, ib., 172; quorum, 172;
sine quo non, ib.; no one compelled to accept; ib.; when will
Court exonerate and discharge trustee? ib., 173; power to
assume new trustees, 173; to name factor, ib.; responsibility
of trustees, ib.; clause empowering trustees to resign effectual,
ib.
Trust-deed. — See Agreement, 253.
Trustee in sequestration, 254. — See Bankruptcy.
Turnpike road. — See Highway, 207, 208.
Tutory, 55, 56, et seq. — See Guardianship.
Tutors and governors, 85.
U
Underwriters, 309. — See Insurance.
Union with England, its effects on law of Scotland, 1, 2; office
of Chancellor of Scotland abolished at, 350; new Court of
Exchequer established subsequent to, 357 (see Court of Exchequer);
its provisions with reference to justices of the
peace, 375.
Union of parishes for purposes of Poor Law Act, 339.
Universities, privileges of perpetual copyright held by, 323.
Universities, scholars of, when not licensed to beg, subject to
penalties, 337. — See Poor.
Urban servitude, 213 et seq.
Urban subjects, letting of, 238.
V
Vassal, feudal, 196.
Vermin, tenant may kill, 232.
Vermin, tenant may throw up lease if house uninhabitable
from, 239.
Vicennial. — See Prescription.
W
Wagers, 179.
Wages, obligation to pay, 103 et seq.; term of payment of, 105;
lien for, ib.; arrestment of, 106; prescription of, 106. — See
Master and Servant.
Ward. — See Guardian.
Ward, taxed, 197.
Warehousing of goods, 247.
Warning, actions of removing, prescribe within three years
after, 226.
Warning, judicial, in removing, 236.
Warning in burghal tenements, 239.
Warning in service, 110.
Warranties, express and implied, in marine insurance, 301.
Warranty in fire insurance, 315.
Warranty in life insurance, 317.
Water, 213; watering of cattle, 214.
Way, 207, 208. — See Servitude.
Weights and measures, 185. — See Sale.
Widows, when entitled to relief under Poor Law statute, 341.
Wife. — See Husband.
Will, 161 et seq. — See Succession.
Will, form of, 166, and note.
Witnesses, regulations as to producing, in Small Debt Courts,
391.
Women and children, restrictions on the employment of, in factories,
116, 117.
Wood and trees, 231.
Workmen, statute law relating to, 112 et seq.
Writers or Clerks to the Signet, highest class of law-agents,
387; same as attorneys and solicitors in England, ib.; are
conveyancers and managers of private affairs, ib.; practise
before Supreme Courts, 388; sign summonses and other writs
that pass the Signet, ib.; constitution of society of Writers to
the Signet, ib; admission preceded by examinations and ap-prenticeship,
ib.; fees of admission ib., 389. — See Solicitors.
Writers in provincial towns, 389; are procurators before Sheriff
Court and agents and factors in private affairs, ib.; in Aber-deen
are called advocates, ib.; usually employed in cases
originating in the provinces, ib. (see Notaries-public 390).
Wrongous imprisonment, actions of, prescribe in three years,
226.
THE END.
MURRAY AND GIBB, PRINTERS, EDINBURGH.

Close

Cite this Document

APA Style:

Hand-Book of the Law of Scotland. 2021. In The Corpus of Modern Scottish Writing. Glasgow: University of Glasgow. Retrieved December 2021, from http://www.scottishcorpus.ac.uk/cmsw/document/?documentid=99.

MLA Style:

"Hand-Book of the Law of Scotland." The Corpus of Modern Scottish Writing. Glasgow: University of Glasgow, 2021. Web. December 2021. http://www.scottishcorpus.ac.uk/cmsw/document/?documentid=99.

Chicago Style

The Corpus of Modern Scottish Writing, s.v., "Hand-Book of the Law of Scotland," accessed December 2021, http://www.scottishcorpus.ac.uk/cmsw/document/?documentid=99.

If your style guide prefers a single bibliography entry for this resource, we recommend:

The Corpus of Modern Scottish Writing. 2021. Glasgow: University of Glasgow. http://www.scottishcorpus.ac.uk/cmsw/.

Close

Hand-Book of the Law of Scotland

Document Information

Document ID 99
Title Hand-Book of the Law of Scotland
Year group 1850-1900
Genre Instructional prose
Year of publication 1859
Wordcount 141591

Author information: Lorimer, Mr James

Author ID 237
Title Mr
Forenames James
Surname Lorimer
Gender Male
Year of birth 1818
Place of birth Aberdalgie, Perthshire, Scotland
Occupation Jurist
Father's occupation Factor
Locations where resident Edinburgh