lefs fome grofs unfairness shall be qualified in the bargain.

20. The privilege of reftitution does not always die with the minor himself. t. If a minor fucceeds to a minor, the time allowed for reftitution is governed by the minority of the heir, not of the anceftor. 2. If a minor fucceeds to a major, who was not full 25, the privilege continues with the heir during his minority; but he cannot avail himfelf of the anni utiles, except in fo far as they were unexpired at the ancestor's death. 3. If a major fucceeds to a minor, he has only the quadriennium utile after the minor's death; and if he fucceeds to a major dying within the quadriennium, no more of it can be profitable to him than what remained when the ancestor died.

21. No minor can be compelled to ftate himself as a defender in any action whereby his heritable eftate, flowing from afcendants, may be, evicted from him by one pretending a preferable right.

22. This privilege is intended merely to fave minors from the neceflity of difputing upon quef tions of preference. It does not therefore take place, 1. Where the action is pursued on the fa, ther's falsehood or delict. 2. Upon his obligation to convey heritage. 3. On his liquid bond for a fum of money. 4. Nor in actions purfued by the minor's fuperior upon feudal cafualties. 5. This privilege cannot be pleaded in bar of an action which had been first brought against the father; nor where the father was not in the peaceable poffeffion of the heritable subject at his death. The perfons of pupils are, by act 1696, protected from imprisonment on civil debts.

23. Curators are given, not only to minors, but in general to every one, who, either through defect of judgment, or unfitnefs of difpofition, is incapable of rightly managing his own affairs. Of the first fort, are idiots and furious perfons. Idiots, or fatui, are entirely deprived of the faculty of reafon. The diftemper of the furious perfon does not confift in the defect of reafon; but in an overheated imagination, which obftructs the application of reason to the purposes of life. Curators may be alfo granted to lunatics, and even to perfons dumb and deaf, though they are of found judgment, where it appears that they cannot exert it in the management of bufinefs. The regular way of appointing this fort of curators, is by a jury fummoned upon a brief from the chancery, directed to the judge of the special territory where the perfon alleged to be fatuous or furious refides, that he may have an opportunity to oppofe it, and for this reafon he ought to be made a party to the brief. The curatory of idiots and furious perfons belongs to the nearest agnate; but a father is preferred to the curatory of his fatuous fon, and the husband to that of his fatuous wife, before the agnate. :

24. A claufe is inferted in the brief, for inquiring how long the fatuous or furious perfon has been in that condition; for all deeds granted after the period at which it appeared by the proof that the fatuity or furiofity began, are void. Fatuous and furious perfons are, by their very ftate, incapable of being obliged; therefore all deeds done by them may be declared void, upon proper evidence of their fatuity at the time of Gigning, though they

should never have been cognofced idiots by an inquest.

25. We have fome few inftances of the fovereign's giving curators to idiots, where the next agnate did not claim; but fuch gifts are truly deviations from our law, fince they pafs without any inquiry into the ftate of the perfon upon whom the curatory is impofed.

26. Perfons, let them be ever fo profufe, or liable to be impofed upon, if they have the exercise of reafon, can effectually oblige themselves, till they are fettered by law. This may be done by Interdiction, which is a legal reftraint laid upon fuch perfons from figning any deed to their own prejudice, without the confent of their curators or interdictors.

27. Voluntary interdiction, though it be impo sed by the fole act of the perfon interdicted, cannot be recalled at his pleasure; but it may be taken off, 1. By a fentence of the court of feffion, declaring, either that there was, from the beginning, no fufficient ground for the reftraint; or that the party is, fince the date of the bond, become rei fue providus. 2. It falls, even without the authority of the lords, by the joint act of the perfon interdicted, and his interdictors, concurring to take it off. 3. Where the bond of interdiction requires a certain number as a quorum, the restraint ceafes, if the interdictors shall by death be reduced to a leffer number.

28. Judicial interdiction is imposed by a fentence of the court of feffion. It commonly proceeds on an action brought by a near kinfman to the party, and fometimes from the nobile officium of the court, when they perceive, during the pendency of a fuit, that any of the litigants is, from the facility of his temper, fubject to impofition. This fort must be taken off by the authority of the fame court that impofed it.

29. An interdiction need not be ferved against the perfon interdicted; but it must be executed, or published by a meffenger, at the market cross of the jurifdiction where he refides, by publicly reading the interdiction there, after three oyeffes (as they are termed) made for convocating the lieges. A copy of this execution must be affixed to the crofs; and thereafter the interdiction, with its execution, must (by act 1581) be registered in the books both of the jurifdiction where the perfon interdicted refides and where his lands lie, or (by act 1600) in the general register of the feffion, within 40 days from the publication.

30. An interdiction, duly registered, has this ef fect, that all deeds done thereafter by the person interdicted, without the confent of his interdictors, affecting his heritable estate, are subject to reduction. Registration in the general register secures all his lands from alienation, wherever they lie; but where the interdiction is recorded in the register of a particular thire, it covers no lands except thofe fituated in that shire.

31. No deed, granted with confent of the interdictors, is reducible, though the strongest lefion or prejudice to the granter thould appear: The only remedy competent, in fuch cafe, is an action by the granter against his interdictors, for making up to him what he has loft through their undue confent.

32. The law concerning the state of children falls

next

next to be explained. Children are either born in wedlock, or out of it. All children born in law. ful marriage are prefumed to be begotten by the perfon to whom the mother is married; and confequently to be lawful children. This prefumption is fo ftrongly founded, that it cannot be defeated but by direct evidence that the mother's husband could not be the father of the child, e. g. where he is impotent, or was abfent from the wife till within fix lunar months of the birth. The canonifts indeed maintain, that the concurring teftimony of the husband and wife, that the child was not procreated by the hufband, is fufficient to elide this legal prefumption for legitimacy; but it is an agreed point, that no regard is to be paid to fuch teftimony, if it be made after they have owned the child to be theirs. A father has the abfolute right of disposing of his childrens perfons, of directing their education, and of moderate chaftisement; and even after they become puberes, he may compel them to live in family with him, and to contribute their labour and induftry, while they continue there, towards his fervice. A child who gets a feparate ftock from the father for carrying on any trade or employment, even though he fhould continue in his father's house, may be faid to be emancipated or foris-familiated, in fo far as concerns that ftock; for the profits arifing from it are his own. Foris-familiation, when taken in this fenfe, is alfo inferred by the child's marriage, or by his living in a feparate houfe, with his father's permiffion or good will. Children, after their full age of 21 years, become, according to the general opinion, their own masters; and from that period are bound to the father only by the natural ties of duty, affection, and gratitude. The mutual obligations between parents and children to maintain each other, are explained in CHAP, II. Sec. XIII. § 4.

33. Children born out of wedlock, are ftyled natural children, or baftards. Baftards may be le gitimated, or made lawful, 1. By the fubfequent intermarriage of the mother of the child with the father; and this legitimation entitles the child to all the rights of lawful children. The fubfequent marriage, which produces legitimation, is confidered by the law to have been entered into when the child legitimated was begotten; and hence, if he be a male, he excludes, by his right of primogeniture, the fons procreated after the marriage, from the fucceffion of the father's heritage, though these fons were lawful children from the birth. Hence, alfo, thofe children only can be thus legitimated, who are begotten of a woman whom the father might at that period have lawfully married. 2. Bastards are legitimated by letters of legitimation from the fovereign. See CHAP. II. Sec. XXII. § 3.

34. As to the power of masters over their fervants, all fervants now enjoy the fame rights and privileges with other fubjects, unless in fo far as they are tied down by their engagements of fervice. Servants are either neceffary or voluntary. Neceffary are those whom law obliges to work without wages; of whom immediately. Voluntary fervants engage without compulfion, either for mere fubfiftence, or for wages alfo. Thofe who earn their bread in this way, if they should

refuse to engage, may be compelled to it by the juftices of the peace, who have power to fix the rate of their wages.

35. Colliers, coal-bearers, falters, and other perfons neceffary to colleries and falt works, as they are particularly described by act 1661, were for. merly tied down to perpetual service at the works to which they had once entered. Upon a fale of the works, the right of their service was transferred to the new proprietor. All perfons were prohibited to receive them into their fervice, without a teftimonial from their laft mafter; and if they deserted to another work, and were redemanded within a year thereafter, he who had received them was obliged to return them within 24 hours, under a penalty. But though the proprietor should neglect to require the deserter within the year, he did not, by that short prescription, lofe his pro perty in him. Colliers, &c. where the colliery to which they were reftricted was either given up, or not fufficient for their maintenance, might lawfully engage with others; but if the former work fhould be again fet a-going, the proprietor might reclaim them back to it.

36. But by 15 Geo. III. cap. 28, these restraints, the only remaining veftiges of flavery in the law of Scotland, were abrogated; and, after the ift July 1775, all colliers, coal-bearers, and falters, were declared to be upon the fame footing with other fervants or labourers. The act subjects those who were bound prior to the ft July 1755, to a certain number of years fervice for their freedom, ac cording to the age of the perfon.

37. Indigent children may be compelled to ferve any of the king's fubjects without wages, till the age of 30 years. Vagrants and sturdy beggars may be alfo compelled to serve any manufacturer. And becaufe few perfons are willing to receive them into their fervice, public work-houses are ordain. ed to be built for fetting them to work. The poor who cannot work, must be maintained by the parishes in which they were born; and where the place of their nativity is not known, that burden falls upon the parishes where they have had their most common refort for the three years immediately preceding their being apprehended, or their applying for the public charity. Where the contributions collected at the churches to which they belong, are not fufficient for their maintenance, they are to receive badges from the minifter and kirk-feffion, in virtue of which they may afk alms at the dwelling-houses of the inhabitants of the parish.

CHAP. II. Of THINGS.

THE things, or fubjects, to which perfons have right, are the fecond object of law. SECT. I. Of the DIVISION of RIGHTS, and the SEVERAL WAYS by which a RIGHT may be ACQUIRED.

I. THE right of enjoying and disposing of a subject at one's pleasure, is called PROPERTY. Proprictors are reftrained by law from ufing their property emulously to their neighbour's prejudice; and on this principle nuisances of every kind are

reprobated

reprobated by law. In particular, fuch as corrupt the air, render the neighbourhood unwholefome; or, in short, to ufe the words of Lord MANSFIELD," render the enjoyment of life and property uncomfortable." Every ftate or fovereign has a power over private property, called, by fome lawyers, dominium eminens, in virtue of which the proprietor may be compelled to fell his property for an adequate price, where an evident utility on the part of the public demands it.

2. Certain things are by nature incapable of appropriation; as the air, the light, the ocean, &c. none of which can be brought under the power of any one perfon, though their ufe be common to all. Others are by law exempted from private commerce, in refpect of the ufes to which they are deftined. Of this laft kind are, 1. Res publica, as navigable rivers, highways, bridges, &c.; the right of which is vefted in the king, chiefly for the benefit of his people, whence they are called regalia. 2. Res Univerfitatis, things which belong in property to a particular corporation or fociety, and whofe ufe is common to every individual in it; but both property and use are subject to the regulations of the fociety; as town-houses, corporation-halls, market-places, church-yards, &c. The lands or other revenue belonging to a corporation do not fall under this clafs, but are juris privati, in so far as regards the corporation.

3. Property may be acquired either by occupa, tion or acceffion; and transferred by tradition or prefeription; but prefcription being alfo a way of loling property, falls to be explained under a feparate title. OCCUPATION, or OCCUPANCY, is the appropriating of things which have no owner, by apprehending them, or feizing their poffeffion. This was the original method of acquiring property; and accorded, under certain reftrictions, with the doctrine of the Roman law, Quid nullius et, fit occupantis: But this doctrine can have no place in the feudal plan, by which the king is looked on as the original proprietor of all the lands within his dominions.

4. Even in that fort of moveable goods which is prefumed to have once had an owner, this rule obtains by the law of Scotland, Quod nullius eft, fit domini regis. Thus, the right of treasure hid under ground is not acquired by occupation, but accrues to the king. Thus alfo, where one finds ftrayed cattle or other moveables, which have been loft by the former owner, the finder acquires no right in them, but must give public notice thereof; and if, within a year and day after fuch notice, the proprietor does not claim his goods, they fall to the king, sheriff, or other perfon to whom the king has made a grant of fuch efcheats.

5. In that fort of moveables which never had an owner, as wild beafts, fowls, fifhes, or pearls found on the shore, the original law takes place, that he who first apprehends, becomes proprie tor; infomuch, that though the right of hunt ing, fowling, and fishing, be reftrained by ftatute under certain penalties, yet all game, even what, is catched in contravention of the law, becomes the property of the catcher (unless where the confifcation thereof is made part of the penalty); the contravener being obnoxious, however, to the peal enactment of the ftatutes, in confequence of YOL. XIII. PARt I.

his tranfgreffion. It was not for a long time a fix ed point, whether a perfon, though poffeffed of the valued rent by law entitling him to kill GAME, could hunt upon another perfon's grounds without confent; but it was lately found by the court of feffion, and affirmed upon appeal, that he could not; it being repugnant to the idea of property, that any perfon, however qualified, should have it in his power to traverse and hunt upon another's grounds without confent of the proprietor. Although certain things become the property of the first occupant, yet there are others which fall not under this rule. Thus whales thrown in, or killed on our coafts, belong neither to those who kill them, nor to the proprietor of the grounds on which they are caft; but to the king, providing they are fo large as that they cannot be drawn by a wane with fix oxen.

6. ACCESSION is that way of acquiring property, by which, in two things which have a connec tion with, or dependence on one another, the property of the principal thing draws after it the property of its acceffory. Thus a houfe belongs to the owner of the ground on which it ftands, though built with materials belonging to, and at the charge of another; trees taking root in our ground, though planted by another, become ours. Thus alfo, the infenfible addition made to one's ground by what a river washes from other grounds (which is call◄ ed alluvio), accrues to the master of the ground which receives the addition. The Romans excepted from this rule the cafe of paintings drawn on another man's board or canvas, in confideration of the excellency of the art; which exception our practice has, for a like reafon, extended to fimilar cafes.

7. Under acceffion is comprehended SPECIFICATION; by which is meant, a perfon's making a new fpecies or fubject, from materials belonging to another.

8. Though the new fpecies fhould be produced from the COMMIXTION or confufion of different fubftances belonging to different proprietors, the fame rule holds; but where the mixture is made by the common confent of the owner, fuch confent makes the whole a common property, according to the fhares that each proprietor had formerly in the feveral fubjects.

9. Property is carried from one to another by TRADITION; which is the delivery of poffeffion by the proprietor, with an intention to transfer the property to the receiver. Two things are therefore requifite in order to the tranfmitting of property in this way: 1. The intention or confent of the former owner to transfer it on fome proper title of alienation, as fale, exchange, gift, &c. z. The actual delivery in pursuance of that intention. The firft is called the caufa, the other the modus transferendi dominii: which laft is fo neceffary to the acquiring of property, that he who gets the laft right, with the firft tradition, is preferred, according to the rule, Traditionibus, non nudis pallis, transferuntur rerum dominia.

10. Tradition is either real, where the ipfa cor i pora of moveables are put into the hands of the receiver; or fymbolical, which is ufed where the thing is incapable of real delivery, or even when actual delivery is only inconvenient. Where the

C

poffeffion

poffeffion or cuftody of the fubject has been before with him to whom the property is to be transferred, there is no room for tradition.

II. POSSESSION, which is effential both to the acquifition and enjoyment of property, is defined, the detention of a thing, with a defign, or animus in the detainer, of holding it as his own. It can not be acquired by the fole act of the mind, without real detention; but, being once acquired, it may be continued folo animo. Poffeffion is either natural or civil. Natural poffeffion is, when one poffeffes by himself; thus, we poffefs lands by cultivating them and reaping their fruits, houfes by inhabiting them, moveables by detaining them in our hands. Civil poffeffion is our holding the thing, either by the fole act of the mind, or by the hands of another who holds it in our name: Thus the owner of a thing lent poffeffes it' by the borrower; the proprietor of lands, by his tackfman, truftee, fteward, &c. The fame fubject cannot be poffeffed entirely, or in folidum, by two different perfons at one and the fame time; and therefore poffeffion, by an act of the mind, ceafes as foon as the natural poffeffion is fo taken up by another, that the former poffeffor is not fuffered to re-enter. Yet two perfons may, in the judgment of law, poffefs the fame fubject, at the fame time, on different rights: Thus, in the cafe of a pledge, the creditor poffeffes it in his own name in virtue of the right of impignoration; while the proprietor is confidered as poffeffing, in and through the creditor, in fo far as is neceffary for fupporting his right of property. The fame doctrine holds in liferenters, tack men, and, generally, in every cafe where there are rights affecting a fubject diftinct from the property.

12. A bona fide poffeffor is he who, though he is not really proprietor of the fubject, yet believes himfelf, on probable grounds, to be proprietor. A mala fide poffeffor is he who knows, or is prefumed to know, that what he poffeffes is the property of another. A poffeffor bona fide acquired right, by the Roman law, to the fruits of the fubject poffeffed, which had been reaped and confumed by himself, while he believed the fubjects his own. By our cuftoms, perception alone, without confumption, fecures the poffeffor: Nay, if he has fown the ground, while his bona fides continued, he is entitled to reap the crop propter curam et culturam. But this doctrine does not reach to civil fruits, . g. the intereft of money, which the bona fide receiver muft reftore, together with the principal, to the owner.

13. Bona fides neceffarily ceafeth by the confcientia rei aliene in the poffeffor, whether fuch confcioufnets fhould proceed from legal interpellation, or private knowledge. Mala fides is fometimes induced by the true owner's bringing his action against the poffeffor, fometimes not till litifconteftation, and, in cafes uncommonly favourable, not till fentence be pronounced against the poffeffor.

14. The property of moveable fubjects is prefumed by the bare act of poffeffion, until the contrary he proved; but poffeffion of an immoveable subject, though for 100 years together, if there is no feifin, does not create even a prefumptive right

to it; nulla fafina, nulla terra. Such fubject is confidered as caduciary, and fo accrues to the fovereign. Where the property of a fubject is contested, the lawful poffeffor is entitled to continue his poffeffion till the point of right be difcuffed; and, if he has loft it by force or stealth, the judge will, upon fummary application, immediately reftore it to him.

15. Where a poffeffor has feveral rights in his perfon, affecting the fubje& poffeffed, the general rule is, that he may afcribe his poffeffion to which of them he pleases; but one cannot afcribe his poffeffion to a title other than that on which it commenced, in prejudice of him from whom his title flowed.

SECT. II. Of HERITABLE and MOVEABLE

RIGHTS.

1. FOR the better understanding the doctrine of this title, it must be known, that by the law of Scotland, and indeed of moft nations of Europe, fince the introduction of feus, wherever there are two or more in the fame degree of confanguinity to one who dies inteftate, and who are not all fe males, fuch rights belonging to the deceased as are either properly feudal, or have any refemblance to feudal rights, defcend wholly to one of them, who is confidered as his proper heir; the others, who have the name of next of kin, or executors, must be contented with that portion of the eftate which is of a more perishable nature. Hence has arifen the divifion of rights to be explained under this title: The fubjects defcending to the heir are styled heritable; and those that fall to the next of kin, moveable.

2. All rights of, or affecting lands, under which are comprehended houfes, mills, fishings, teinds; and all rights of subjects that are fundo annexa, whether completed by feifin or not, are heritable ex fua natura. On the other hand, every thing that moves itfelf, or can be moved, and, in general, whatever is not united to land, is moveable: as household-furniture, corns, cattle, cash, arrears of rent and of intereft, even though they should be due on a right of annual rent; for though the arrears last mentioned are fecured on land, yet be ing presently payable, they are confidered as cafh. 3. Debts (nomina debitorum), when due by bill, promiffory note, or account, are moveable. When conftituted by bond, they do not all fall under any one head; but are divided into heritable and moveable, by the following rules. All debts conftituted by bond bearing an obligation to infeft the creditor in any heritable subject, in security of the principal fum and annual rent, or annual rent only, are heritable; for they not only carry a yearly profit, but are fecured upon land. Bonds merely perfonal, though bearing a claufe of intereft, are, by act 1661, declared to be moveable as to fucceffion; i. e. they go, not to the heir, but to the next of kin or executors; but they are heritable with respect to the fifk, and to the rights of husband and wife; that is, though, by the general rule, moveable rights fall under the communion of goods confequent upon marriage, and the moveables of denotinced perfons fall to the crown or fisk by fingle efcheat, yet fuch bonds do neither, but are heritable in both refpects. Bonda

taken

taken payable to heirs and and affignees, fecluding executors, are heritable in all respects, from the deftination of the creditor. But a bond, which is made payable to heirs, without mention of executors, defcends, not to the proper heir in heritage, though heirs are mentioned in the bond, but to the executor; for the word heir, which is a generic term, points out him who is to fucceed by law in the right; and the executor, being the heir in mobilibus, is confidered as the perfon to whom fuch bond is taken payable. But where a bond is taken to heirs male, or to a series of heirs, one after another, fuch bond is heritable, because its deftination neceffarily excludes executors.

4. Subjects originally moveable become heritable, 1. By the proprietor's deftination. Thus, a jewel, or any other moveable fubject, may be provided to the heir, from the right competent to every proprietor, to fettle his property on whom he pleases. 2. Moveable rights may become heritable by the fupervening of an heritable fecurity: Thus, a fum due by a perfonal bond becomes heritable, by the creditor's accepting an heritable right for fecuring it, or by adjudging upon it.

5. Heritable rights do not become moveable by acceffory moveable fecurities; the heritable right being in fuch case the jus nobilius, which draws the other after it.

6. Certain fubjects partake, in different refpects, of the nature both of heritable and moveable. Perfonal bonds are, by the above cited at 1661, moveable in refpect of fucceffion; but heritable as to the fifk, and the rights of husband and wife. All bonds, whether merely perfonal, or even heritable, on which no feifin has followed, may be affected at the fuit of creditors, either by adjudication, which is a diligence proper to heritage; or by arreftment, which is peculiar to moveables. Bonds fecluding executors, though they defcend to the creditor's heir, are payable by the debtor's executors, without relief against the heir; fince the debtor's fucceffion cannot be affected by the deftination of the creditor.

7. All queftions, whether a right be heritable or moveable, must be determined according to the condition of the fubject at the time of the anceftor's death. If it was heritable at that period, it must belong to the heir; if moveable, it must fall to the executor, without regard to any alterations that may have affected the fubject in the intermediate period between the ancestor's death and the competition.

I. HERITABLE RIGHTS. SECT. III. Of the CONSTITUTION of HERITABLE RIGHTS by CHARTER and SEISIN.

1. HERITABLE rights are governed by the feudal law, which owed its origin, or at least its firft improvements, to the Longobards; whofe kings, upon having penetrated into Italy, the better to preferve their conquefts, made grants to their principal commanders of great part of the conquered provinces, to be again fubdivided by them among the lower officers, under the conditions of fidelity and military fervice.

2. The feudal constitution and usages were first reduced into writing about the year 1150, by two

lawyers of Milan, under the title of Confuetudines Feudorum. None of the German emperors appear to have expressly confirmed this collection by their authority; but it is generally agreed, that it had their tacit obfervation, and was confidered as the customary feudal law of all the countries fubject to the empire. No other country has ever acknowledged thefe books for their law; but each ftate has formed to itself such a system of feudal rules, as beft agreed with the genius of its own conftitution. In feudal queftions, therefore, we are governed, in the first place, by our own ftatutes and cuftoms; where thefe fail us, we have regard to the practice of neighbouring countries, if the genius of the law appears to be the fame with ours; and should the queftion ftill remain doubtful, we may have recourse to those written books of the feus, as to the original plan on which all feudal fyftems have proceeded.

3. This military grant got the name, firft of beneficium, and afterwards of feudum; and was defined a gratuitous right to the property of lands, made under the conditions of fealty and military fervice, to be performed to the granter by the receiver; the radical right of the lands ftill remaining in the granter. Under lands, in this definition, are comprehended all rights or fubjects fo connected with land, that they are deemed a part thereof, as houfes, mills, fishings, jurifdictions, patronages, &c, Though feus in their original nature were gratuitous, they foon became the fubject of commerce; fervices of a civil or religious kind were frequently fubftituted in place of military; and now, of a long time, fervices of every kind have been entirely difpenfed with in certain feudal tenures. He who makes this grant is called Superior, and he who receives it the vassal. The fubject of the grant is commonly called the feu; though that word is at other times, in our law, used to fignify one particular tenure. (See SECT. IV. 2.) The intereft retained by the fuperior in the feu is ftyled dominium dire&um, or the fuperiority; and the interest acquired by the vassal, dominium utile, or the property. The word fee is promiscuously applied to both.

4. Allodial goods are oppofed to feus; by which are understood goods enjoyed by the owner, independent of a fuperior. All moveable goods are allodial; lands only are fo when they are given without the condition of fealty or homage. By the feudal fyftem, the fovereign, who is the fountain of feudai rights, referves to himself the fuperiority of all the lands of which he makes the grant; fo that, with us, no lands are allodial, except thofe of the king's own property, the udal or allodial lands of Orkney, the fuperiorities which the king referves in the property lands of his fubjects, and manfes and glebes, the right of which is completed by the prefbytery's defignation without any feudal grant.

5. Every perfon who is in the right of an immoveable fubject, provided he has the free adminif tration of his eftate, and is not debarred by sta tute, or by the nature of his right, may difpofe of it to another. Nay, a vaffal, though he has only the dominium uile, can fubfeu his property to a fubvaffai by a fubaltern right, and thereby raise a new dominium directum in himself, fubordinate to

that