borough do not fall within this act, it being cuftomary to let these from year to year

11. Tacks neceffarily imply delectus perfona, a choice by the setter of a proper perfon for his tenant. Hence the conveyance of a tack, which is not granted to affignees, is ineffectual without the landlord's confent. A right of tack, though it be heritable, falls under the jus mariti, because it cannot be feparated from the labouring cattle and implements of tillage, which are moveable fubjects. This implied exclusion of affignees is however limited to voluntary, and does not extend to neceflary affignments; as adjudication of a tack by the tackiman's creditor: but a tack, exprefsly excluding allignees, cannot be carried even by adjudication. It was not a fixed point for a long time, whether a tenant could fubfet without confent of the landlord; but the court of feffion, in a cafe which occurred a few years ago, denied the power of fubfetting ing the tenant, where the leafe was for 19 years Liferent tacks, because they import a higher degree of right in the tackfmen than tacks for a definite term, may be affigned, unless affignees be fpecially excluded.

12. If neither the fetter nor tacksman shall properly discover their intention to have the tack diffolved at the term fixed for its expiration, they are understood, or prefumed, to have entered into a new tack upon the same terms with the former, which is called tacit relocation; which continues till the landlord warns the tenant to remove, or the tenant renounces his tack to the landlord: This obtains also in the cafe of moveable tenants, who poffefs from year to year without written tacks. In judicial tacks, however, by the court of feffion, tacit relocation neither does nor can take place; for cautioners being interpofed to thefe, they are loofed at the end of the tack; and therefore, where judicial tacksmen poffefs after expiry of their right, they are accountable as factors. 13. In tacks of land, the fetter is commonly bound to put all the houses and office-houses, ne ceffary for the farm, in good condition at the tenant's entry; and the tenant muft keep them and leave them fo at his removal. But in tacks of houses, the fetter must not only deliver to the te nant the subject fet in tenantable repair at his entry, but uphold it in that repair during the whole years of the tack, unless it is otherwife co venanted betwixt the parties.

14. If the inclemency of the weather, inunda tion, or calamity of war, fhould have brought upon the crop an extraordinary damage (plus quam to lerabile), the landlord had, by the Roman law, no claim for any part of the tack-duty : If the damage was more moderate, he might exact the full rent. It is nowhere defined, what degree of fterility or devastation makes a lofs plus quam tolerabile; though the scope of our law feems to be, that no relief is afforded, unless where a total lofs arifes from the act of God, or the king's enemies. Tenants are not obliged to pay any public burden to which they are not exprefsly bound by the tack, except mill-fervices.

15. Tacks may be evacuated during their currency, 1. In the fame manner as feu-rights, by the tackfman's running in arrear of his tack-duty for two years together. This irritancy may be VOL. XIII. PART I,

prevented by the tenant's making payment at the bar before fentence, 2. Where the tenant either runs in arrear of one year's rent, or leaves his farm uncultivated at the ufual feafon; in which cafe he may, by act of federunt 1756, be ordained to give fecurity for the arrears, and for the rent of the five following crops, if the tack shall subsist so long; otherwife to remove, as if the tack were at an end. 3. Tacks may be evacuated at any time by the mutual confent of parties.

16. The landlord, when he intends to remove a tenant whofe tack is expiring, or who poffeffes without a tack, muft, upon a precept figned by himself, warn the tenant 40 days preceding the term of Whitfunday, at or immediately preceding the ifh, perfonally, or at his dwelling-houfe, to remove at that term, with his family and effects.' This precept must be alfo executed on the ground of the lands, and thereafter read in the parish church where the lands lie, after the morning fervice, and affixed to the most patent door thereof. Whitfunday, though it be a moveable feaft, is, in queftions of removing, fixed to the 15th of May. In warnings from tenements within borough, it is fufficient that the tenant be warned 40 days be fore the ifh of the tack, whether it be Whitfunday or Martinmas; and in thefe the ceremony of chalking the door is fuflained as warning when proceeding upon a verbal order from the proprietor. It may perhaps be doubtful how far this obtains as a general rule, because the mode of warning ought to depend on the practice of each particular borough, and any warning made agree ably to this practice must be legal.

17. This procefs of warning was precifely neceffary for founding an action of removing againft tenants, till the act of federunt 1756, which leaves it in the option of the proprietor, either to use the former method, or to bring his action of removing before the judge ordinary; which, if it be called 40 days before the faid term of Whitfunday, fhall be held as equal to a warning. Where the tenant is bound, by an exprefs claufe of his tack, to remove at the ifh without warning, fuch obligation is, by the faid act, declared to be a fufficient war rant for letters of horning, upon which, if the landlord charge his tenant forty days before the faid Whitfunday, the judge is authorifed to eject him within fix days after the term of removing expreffed in the tack."

18. Actions of removing might, even before this act of federunt, have been purfued without any previous warning, 1. Againft vicious poffeffors, i. e. perfons who had feized the poffeffion by force, or who, without any legal title, had intruded into it after the laft poffeffor had given it up. 2. Againft poffeffors who had a naked tolerance. 3. Against tenants who had run in arrear of rent during the currency of their tacks, 4. Against fuch as had fold their lands, and continued to poffefs after the term of the purchaser's entry. Upon the fame ground, warning was not required in removings againft poffeffors of liferented lands, after the death of the liferenter who died in the natural poffeffion: but if he poffeffed by tenants, his tenants could not be difturbed in their poffeffions till the next Whitfunday, that they might have time to look out for other farms; but they

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might

might be compelled to remove at that term, by an action of removing, without warning.

19. A landlord's title in a removing, let it be ever fo lame, cannot be brought under queftion by a tenant whofe tack flows immediately from him; but, if he is to infift against tenants not his own, his right must be perfected by infeftment, unlefs it be fuch as requires no infeftment, asterce, &c. 20. The defender in a removing muft (by act

1555), before offering any defence which is not inftantly verified, give fecurity to pay to the purfuer the violent profits, if they fhould be award. ed against him. Thefe are fo called, because the law confiders the tenant's poffeffion after the warning as violent. They are estimated, in tenements within borough, to double the rent; and in lands, to the highest profits the purfuer could have made of them either by a tenant or by himself. The nature of the fecurity required by the faid act of parliament is, to pay all damages, which the warner, or others having intereft, may fuftain.

21. If the action of removing fhall be paffed from, or if the landlord fhall, after ufing warning, accept of rent from the tenant, for any term fubfequent to that of the removal, he is prefumed to have changed his mind, and tacit relocation takes place. All actions of removing against the principal or original tackfman, and decrees thereupon, if the order be used, which is fet forth fupra (fee 17.), are, by the act of federunt 1756, declared to be effectual against the affignees to the tack or fubtenants.

22. The landlord has, in fecurity of his tack duty, over and above the tenant's perfonal obliga tion, a tacit pledge or hypothec, not only on the fruits, but on the cattle pafturing on the ground. The corn, and other fruits, are hypothecated for the rent of that year whereof they are the crop; for which they remain affected, though the landlord should not use his rights for years together. In virtue of this hypothec, the landlord is entitled to a preference over any creditor, though he has actually used a poinding; except in the fpecial cafe, that poinding is executed after the term of payment, when the landlord can appropriate the crop for his payment, the poinder in fuch cafe being obliged to leave as much on the ground as to fatisfy the landlord's hypothec. This right, however, cannot compete with an extent iffued for a debt due to the crown.

the furniture and other goods brought into the subject set are hypothecated to the landlord for one year's rent. But the tenant may by fale impair this hypothec, as he might that of cattle in rural tenements; and indeed, in the particular cafe of a fhop, the tenant rents it for no other purpose than as a place of fale.

SECT. VII. Of the TRANSMISSION of RIGHTS, by

CONFIRMATION and RESIGNATION.

I. A VASSAL may tranfmit his feu either to univerfal fucceffors, as heirs; or to fingular fucceffors, i. e. thofe who acquire by gift, purchase, or other fingular title. This laft fort of tranf miffion is either voluntary, by disposition; or neceffary, by adjudication.

2. By the firft feudal rules, no fuperior could be compelled to receive any vaflal in the lands, other than the heir expreffed in the inveftiture; for the fuperior alone had the power of afcertaining to what order of heirs the fee granted by himself was to defcend. But the right of refufal in the fuperior did not take place, 1. In the case of creditors, appraisers, or adjudgers, whom fuperiors were obliged to receive upon payment of a year's rent (1469, C. 37. 1672, c. 19.): 2. In the cafe of purchafers of bankrupt eftates, who were put on the fame footing with adjudgers by act 1690, c. 20. The crown refufes no voluntary difponee, on his paying a compofition to the exchequer of a fixth part of the valued rent. Now, by 20 Geo. I. fuperiors are directed to enter all fingular fucceffors (except incorporations) who fhall have got from the vaffal a difpofition containing procuratory of refignation; they always receiving the fees or cafualties that law entitles them to on a vaffal's entry, i. e. a year's rent. It was long matter of doubt how this compofition, due to the fuperior upon the entry of fingular fucceffors, fhould be regulated. The matter at laft received a folemn decifion, finding, That the fuperior is entitled, for the entry of fingular fucceffors, in all cafes where fuch entries are not taxed, to a year's rent of the fubject, whether lands or houfes, as the fame are fet, or may be fet at the time; deducting the fea duty and all public burdens, and likewife all annual burdens impofed on the lands by confent of the fuperior, with all reasonable annual repairs to houses and other perishable subjects.

24. In tacks of houfes, breweries, fhops, and other tenements, which have no natural fruits,

dates of their several registrations, without refpect to the former diftinction of bafe and public, or of being clothed and not clothed with poffeffion.

2. Public rights, i. e. difpofitions to be holden of the granter's fuperior, may be perfected either by confirmation or refignation; and therefore they generally contain both precept of feifin and procuratory of refignation. When the receiver is to complete his right in the first way, he takes feifin

upon

upon the precept: but fuch feifin is ineffectual without the fuperior's confirmation, for the difpo nee cannot be deemed a vaffal till the fuperior receive him as fuch, or confirm the holding. By the usual style in the transmission of lands, the disposi. tion contains an obligation and precept of infeft ment, both a me and de me, in the option of the difponee; upon which, if feifin is taken indefinitely, it is conftrued, in favour of the difponee, to be a base infeftment, because a public right is null without confirmation: but if the receiver fhall afterwards obtain the fuperior's confirmation, it is confidered as if it had been from the beginning a public right. 5. Where two several public rights of the fame fubject are confirmed by the fuperior, their preference is governed by the dates of the confirmations, not of the infeftments confirmed; because it is the confirmation which completes a public right.

6. Though a public right becomes, by the fuperior's confirmation, valid from its date; yet if any mid impediment intervene betwixt that period and the confirmation, to hinder the two from being conjoined, e. g. if the granter of a public right fhould afterwards grant a bafe right to another, upon which feifin is taken before the fuperior's confirmation of the firft, the confirmation will have effect only from its own date; and confequently the bafe right first completed will carry the property of the lands preferable to the public one, 7. RESIGNATION is that form of law, by which a vaffal surrenders his feu to his fuperior; and it is either ad perpetuam remanentiam, or in favorem. In refignation ad remanentiam, where the feu is refigned, to the effect that it may remain with the fuperior, the superior, who before had the fuperiority, acquires, by the refignation, the property alfo of the lands refigned; and his infeftment in the lands ftill fubfifted, notwithstanding the right by which he had given his vaffal the property; therefore, upon the vaffal's refignation, the fupe rior's right of property revives, and is confolidated with the fuperiority, without the neceflity of a new infeftment; but the inftrument of refigna. tion must be recorded.

8. Refignations in favorem are made, not with an intention that the property refigned should remain with the fuperior, but that it fhould be again given by him, in favour either of the refigner himfelf, or of a third party; confequently the fee remains in the refigner, till the perfon in whofe favour refignation is made gets his right from the fuperior perfected by feilin. And be caufe refignations in favorem are but incomplete perfonal deeds, our law has made no provision for recording them. Hence, the first feilin on a fecond refignation is preferable to the last seifin upon the first refignation; but the superior, accepting a second refignation, whereupon a prior feifin may be taken in prejudice of the first refignatory, is liable in damages.

9. By our former decifions, one who was vefted with a perfonal right of lands, i. e. a right not completed by feifin, effectually divefted himself by difponing it to another; after which no right remained in the difponer which could be carried by a fecond disposition, because a perfonal right is no more than a jus obligationis, which may be tranf ferred by any deed fufficiently expreffing the will

of the granter. But this doctrine, at the fame time that it rendered the fecurity of the records extremely uncertain, was not truly applicable to fuch rights as required feifin to complete them; and therefore it now obtains, that the granter even of a perfonal right of lands is not fo divested by conveying the right to one perfon, but that he may effectually make it over afterwards to another; and the preference between the two does not depend on the dates of the difpofitions, but on the priority of the feifins following upon them, SECT. VIII. Of REDEEMABLE RIGHTS.

1. An heritage right is faid to be redeemable, when it contains a right of reverfion, or return, in favour of the perfon from whom the right fows. Reverfions are either legal, which arise from the law itself, as in adjudications, which law declares to be redeemable within a certain time after their date; or conventional, which are constituted by the agreement of parties, as in wadfets, rights of annual rent, and rights in fecurity. A WADSET (from wad, a pledge) is a right by which lands, or other heritable fubjects, are impignorated by the proprietor to his creditor in fecuriry of his debt; and, like other heritable rights, is perfected by feifin. The debtor, who grants the wadfet, and has the right of reverfion, is called the reverfer; and the creditor, receiver of the wadfet, is called the wadsetter.

2. WADSETS, by the prefent practice, are commonly made out in the form of mutual contracts, in which one party fells the land, and the other grants the right of reversjon. When the right of reverfion is thus incorporated in the body of the wadfet, it is effectual without registration: but where the right of reverfion is granted in a feparate writing, it is ineffectual against the fingular fucceffor of the wadfetter, unless it be registered in the regifter of feifins within 60 days after the date of the feifin upon the wadfet.

3. Rights of reverfion are generally esteemed Atriai juris; yet they go to heirs, though heirs fhould not be mentioned, unless there be fome claufe in the right, difcovering the intention of parties, that the reverfion should be perfonal to the referver himself. In like manner, though the right should not exprefs a power to redeem from the wadsetter's heir, as well as from himself, redemption will be competent against the heir. All our lawyers have affirmed, that reverfions cannot be affigned, unless they are taken to affignees; but from the favour of legal diligence, they may be adjudged.

4. Reversions commonly leave the reverser at liberty to redeem the lands quandocunque, without reftriction in point of time; but a clause is adjected to some reversions, that if the debt be not paid against a determinate day, the right of rever

on fhall be irritated, and the lands fhall become the irredeemable property of the wadsetter. Ne vertheless, the irritancy being penal, as in wadsets, where the fum lent falls always thort of the value of the lands, the right of redemption is, by indulgence, continued to the reverfèr, even after the term has expired, while the irritancy is not de. clared. But the reverfer, if he does not take the benefit of this indulgence within 40 years after the lapfe of the term, is cut out of it by prefcription,

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5. If the reverfer would redeem his lands, he muft ufe an order of redemption against the wadfetter; the first step of which is premonition (or notice given under form of inftrument) to the wadfetter, to appear at the time and place appointed by the reversion, then and there to receive payment of his debt, and thereupon to renounce his right of wadfet. In the voluntary redemption of a right of wadfet holden base, a renunciation duly registered re-establishes the reverfer in the full right of the lands. Where the wadfet was granted to be holden of the granter's fuperior, the fuperior must receive the reverfer on payment of a year's rent, if he produce a difpofition from the wadfetter, containing procuratory of refignation. If, at executing the wadfet, the fuperior has granted letters of regrefs, i. e. an obligation again to enter the reverser upon redemption of the lands, he will be obliged to receive him without payment of the year's rent. But letters of regrefs will not have this effect against fingular fucceffors in the fuperi ority, if they are not registered in the regifter of reverfions. All wadfets that remain perfonal rights, are extinguished by fimple difcharges, though they fhould not be recorded.

6. If the wadfetter either does not appear at the time and place appointed, or refufes the redemption money, the reverfer must confign it under form of inftrument, in the hands of the perfon appointed in the right of reverfion; or, if no perfon be named, in the hands of the clerk to the bills in the court of feffion, a clerk of the feffion, or any refponfible perfon. An inftrument of confignation, with the confignatory's receipt of the money configned, completes the order of redemption, ftops the farther currency of intereft against the reverfer, and founds him in an action for declaring the order to be formal, and the lands to be redeemed in confequence of it.

7. After decree of declarator is obtained, by which the lands are declared to return to the debtor, the configned money, which comes in place of the lands, becomes the wadfetter's, who therefore can charge the confignatory, upon letters of horning, to deliver it up to him; but because the reverfer inay, at any time before decree, pass from his order, as one may do from any other step of diligence, the configned fums continue to belong to the reverfer, and the wadfetter's intereft in the wadfet continues heritable till that period.

8. If the wadfetter chooses to have his money rather than the lands, he muft require from the reverfer, under form of inftrument, the fums due by the wadfet, in terms of the right. The wadfet fums continue heritable, notwithstanding requifition, which may be paffed from by the wadfetter, even after the reverfer has configned the redemp. tion money in confequence thereof.

9. Wadfets are either proper or improper. A proper wadfet is that whereby it is agreed, that the ufe of the land fhall go for the ufe of the money; fo that the wadfetter takes his hazard of the rents, and enjoys them without accounting, in fatisfaction, or in folutum, of his intereft.

10. In an improper wadfet, the reverfer, if the rent fhould fall thort of the intereft, is taken bound to make up the deficiency; if it amounts to more, the wadfetter is obliged to impute the excref

cence towards extinction of the capital; and, as foon as the whole fums, principal and intereft, are extinguished by the wadfetter's poffeffion, he may be compelled to renounce and divest himself in favour of the reverfer.

11. If the wadfetter be entitled by his right to enjoy the rents without accounting, and if at the fame time the reverfer be fubjected to the hazard of that deficiency, fuch contract is justly declared ufurious; and alfo in all proper wadfets wherein any unreafonable advantage has been taken of the debtor, the wadfetter muft (by act 1661), during the not-requifition of the fum lent, either quit his poffeffion to the debtor, upon his giving fecurity to pay the intereft, or fubject himself to account for the furplus rents, as in improper wadfets.

12. Infeftments of annual rent are alfo redeemable rights. A right of annual rent does not carry the property of the lands; but it creates a real nexus or burden upon the property, for payment of the intereft or annual rent contained in the right; and confequently the bygone interefts due upon it are debita fundi. The annual-renter may therefore either infift in a real action for obtaining letters of poinding the ground, or fue the tenant in a perfonal action towards the payment of his paft intereft; and in a competition for those rents, the annual-renter's preference will not depend on his having ufed a poinding of the ground, for his right was completed by the feifin. The power of poinding the ground, arifing from that antecedent right, is mera facultatis, and need not be exercised, if payment can be otherwife got. As it is only the intereft of the fum lent which is a burden upon the lands, the annual-renter, if he wants his principal fum, cannot recover it either by poinding or by a personal action against the debtor's tepants; but must demand it from the debtor himfelf on his perfonal obligation in the bond, either by requifition, or by a charge of letters of horn ing, according as the right is drawn.

13. Rights of annual-rent, being fervitudes upon the property, and confequently confiftent with the right of property in the debtor, may be extinguished without refignation.

14. Infeftments in fecurity are another kind of redeemable rights (now frequently used in place of rights of annual-rent), by which the receivers are infeft in the lands themfelves, and not fimply in an annual-rent forth of them, for fecurity of the principal fums, intereft, and penalty, contained in the rights. If an infeftment in fecurity be granted to a creditor, he may thereupon enter in to the immediate poffeffion of the lands or annualrent for his payment, They are extinguished as rights of annual-rent.

15. All rights of annual-rent, rights in fecurity, and generally whatever conftitutes a real burden on the fee, may be the ground of an adjudication, which is preferable to all adjudications, or other diligences, intervening between the date of the right and of the adjudication deduced on it; not only for the principal fum contained in the right, but alfo for the whole paft intereft contained in the adjudication. This preference arifes from the nature of real debts, or debita fundi; but in order to obtain it for the intereft of the intereft accu

mulated