tented with that part of the succession which is of a more perishable nature, and which in value bears generally but a small proportion to the share falling to the heir. Heritable subjects are those which, on the death of the proprietor, thus descend to the heir; and moveables, those that go to executors, who are on that account sometimes styled hæredes in mobilibus. It may be also observed here, that those who undertake to gather in and distribute, among such as are interested in the succession, the moveable estate of a person deceased, in virtue of a nomination, either by the testator or by the judge, frequently get the name of executors, because it is their office to execute the last will of the deceased. 20 4. All subjects which were immoveable by the Roman law, as a field, or whatever is either part of the ground, or united to it, fundo annexum, as minerals, houses, mills, &c. are heritable by ours This rule, if understood without limitation, would comprehend all the fruits of the earth not yet separated from the ground, (called by the Romans pendentes), because they continue partes soli until separation; but it is, by our usage, restricted to such of that kind as grow annually, for a tract of years together, without repeated culture or industry, as natural grass not yet cut, or fruits not yet plucked from the 20 In our law, the question, whether subjects are to be considered heritable or moveable, seems in some measure to be modified, according as the case may occur,-1. Between the heir and executor of the proprietor;-2. Between the proprietor and tenant, or other occupant upon a title of temporary possession ;-and, 3. Between the real and personal creditors of the proprietor. In all of these cases, "if an addition has "been made to land or houses, which cannot be dissevered without destruction or "injury to the principal or to the accessory, things so added, though in themselves "moveable, become, as fixtures, part of the land. As such they descend to the heir; or, on the expiration of a temporary contract of possession, they accompany the "land; and they will also, as part of the subject of security, be available to the holder "of an heritable bond;" 1. Bell's Com. 649, But, on the other hand, where the accessory may again be separated from the principal, without destruction or injury to either as distinct subjects, (which, for instance, may sometimes be done in the case of the machinery of a mill or a steam-engine), the same rule does not apply. In such cases it would seem, 1. That, as between heir and executor, the leaning would be in favour of the former; the principles of accession and destination here combining, and (so far as the matter turns on a quæstio voluntatis,) the intention of the proprietor, in erecting the mill, obviously being, that the building and machinery should go together, as unum quid. This, by some, has been carried so far as to make even the horse and other instrumenta mobilia of a horse-mill; Dirl. and Stew. v. MILL; and the buckets, chains, and all other accessory instruments of a going coal, descend to the heir; Ibid. v. EXECUTRY. In a recent case, however, it was found by Lord Armadale, as to a thrashing machine, that the "built part" only is to be considered as heritable, and the machinery" as moveable, and therefore belonging to the executors; Hyslop's Trustees, 18th Jan. 1811, Fac. Coll.: But this finding was not brought under review of the Court; and its soundness, especially since the judgment in the case of Arkwright, infra, may perhaps be doubted. 2. As between landlord and tenant, the latter would seem entitled to remove whatever machinery he may have erected for his own convenience, during his temporary occupation, and for the purposes, and as an accessory to his trade; 1. Bell, 650-1. 3. As between the different classes of creditors, real and personal, there is perhaps more difficulty; "The question has been de"cided in one case, by the Court of Session, on the principle of accession of the ma"chinery to the lands, the security of an heritable bond having been held to cover "not merely the ground and house, and great moving power, or steam engine, but "also the whole of the small machinery essential to the completeness of the mill;" 1. Bell, 652. The case here alluded to is that of Arkwright, 3d Dec. 1819, Fac. Coll. ; and the pleadings, which contain a complete argument on the whole of this subject, are highly worthy of perusal. It was there found, that the "carding-machines, drawing"frames, rooving-frames, and mule-jennies" of a cotton mill, though not even nailed or screwed to the fabric of the building, but removable from place to place like furniture, or like ordinary spinning-wheels, were, notwithstanding, carried as accessories. But Mr Bell observes, that though" the authority of such a determination is very "great, doubts are still entertained by the bar; and the question is by no means held "to be at rest;" 1. Bell, 652. It adds, perhaps, to the force of this caution, that the opinions of some of the judges seem to have turned not a little on the point of intention, as being per se decisive in this particular case. TITLE II. Things properly heritable. BOOK II. All rights connected with heritable subjects are heritable. the tree: For those annual fruits which require yearly seed and industry, as wheat, barley, &c. are accounted moveable, even before separation, from the moment they are sown or planted; see Durie, Feb. 2. 1627, Somervel, (Dict. p. 5074.); because the seed, and labour in preparing the ground, cannot be said to be employed on the lands for their perpetual use, but for the immediate profit of the possessor". Trees themselves, though they may be called in some sense fruits of the earth, and though most of them require seed and culture at first rearing, are deemed partes soli, and so descend to the heir: For they are truly destined, not for the present use of the proprietor or possessor, as industrial fruits are, but for the use of the ground; and may, after they have taken firm root, continue united to it without farther culture, for many successive generations *. 5. All rights connected with or affecting any heritable subject, are also heritable, ex. gr. rights of superiority, tithes, patronage, servitude, and the like t. Rights of annualrent, which fall under this class, deserve a more particular consideration. For understanding the nature of these, it must be known, that the taking of interest for the use of money was accounted unlawful, and therefore prohibited by the Canon law, because money is a barren subject, which yields no natural fruits. While the authority of that law continued, those who could not apply themselves to commerce, manufactures, husbandry, or some such method of improving their stock, bethought themselves of a way of eluding this prohibition, by purchasing with their money rights of annualrent, that is, rights constituted by infeftment upon lands, by which the lands contained in the right were charged with the yearly payment of a certain sum, or as it was called annualrent, to the purchaser, redeemable by the granter upon repayment of the purchase money: But as the granter of the right came under no obligation to repay that sum, he could not be compelled to redeem. By this expedient, that profit which the law did not allow to be taken directly was made by money indirectly; under the notion, that the purchase of a yearly annualrent on land, was not the taking of interest for the use of money, but the acquiring of a feudal right. These annuities, or rights of annualrent, are used frequently at this day in several A proprietor of an entailed estate sold the wood on his estate, but died before the whole was cut. The price of that part which had been cut before his death was found to belong to his executors. See Fac. Coll. and Sel. Dec., June 24. 1761, Macleod, DICT. p. 5436 22. + See as to a seat in a church, Fac. Coll. July 9. 1760, Watson, DICT. p. 5431. 23. * Contrary, however, to this principle,-where grass seeds have been sown down with corn, the executor is not entitled to the crop of hay produced in the succeeding year, but merely to the first year's pasturage after cutting down the white crop; Kilk. Kames, Rem. Dec. Clerk Home, and Falc., 7th Dec. 1744, Sinclair, DICT. p. 5421; Fac. Coll., 10th Feb. 1796, Dicт. p. 5446; Fac. Coll., 19th Nov. 1816, Marquis of Tweeddale. In this last case, could they have considered the question open, the Court seem to have been inclined to pronounce a different judgment; but they "felt it too "late to shake or disturb the cases already decided." ** It would seem that, in an unentailed estate, the whole price would belong to the executor. It is laid down, infr. § 17., that a sale of the entire estate, though resting on a minute not yet carried into execution, would operate in favour of the executor: and why should there be a different result as to a partial sale? In the case of an entail, however, the heir in possession can only "cut woods, or dispose of them, if ripe "for cutting, under this reservation, that the cutting must cease with his life;" 2. Bell's Com. 40. And the next substitute, not being bound for his deeds, is entitled to oppose the implement of any contract which extends beyond his life. In this way, "what is uncut at his death is properly pars soli, descendible, as part of the en"tailed estate, to the next substitute;" Bell, ibid. 23 See this case noticed infr. Tit. 6. § 11. in not. several Popish countries, where interest is not allowed but in mercantile cases, and they are called in the French law, hypotheques. Even after the Reformation, when the prohibition of the Canon law was no longer of force in Scotland, these rights continued in use for more than a century, with this small variation in the style, that the debtor, who was still taken bound to infeft the creditor in a yearly sum out of his lands corresponding to the legal interest of the capital, became personally obliged, not only to repay the current interest, but the principal sum also, in the special case, that the creditor should choose to make requisition of the debt due to him, rather than to retain the heritable security: But now these rights have been, for about a century past, changed by our style into the form of proper bonds, by which the debtor is personally obliged to repay both principal sum and interest, and, for the creditor's farther security, is bound to infeft him in the special annualrent payable forth of the lands. All rights constituted by either of these forms, are heritable; and generally in judging what rights are heritable, the matter of the right is attended to more than its form. If the matter be feudal, or connected with land, the right, though not made real by seisin, goes to the heir. Thus, naked charters, or dispositions of the property or superiority of lands, or heritable bonds, though seisin has not proceeded on them, are heritable; because they are all rights of, or securities upon land; and the proprietor or creditor may complete them by seisin when he shall think proper*. But where the creditor cannot, by the style of the clause of infeftment, take present seisin, but must wait for the existence of a condition, or of a day, ex. gr. if he is not empowered to take seisin unless the debtor shall fail to make payment against a determinate day, the debt continues moveable, till the obligation to infeft is purified by the existence of that day, and the debtor's failure; because till then it is not in the creditor's power to affect or charge the lands with the debt, Kames, 10. (Fisher, Feb. 1718, DICT. p. 5516.). 6. Titles of honour, and offices, when they are granted to continue after the death of the patentee, are descendible to the heir, not to executors; first, because they are indivisible rights, and consequently must belong to the proper heir; 2dly, because they were originally feudal: And to this day, titles of honour, though they be no longer connected with land, are granted as an ornament and support to the patentee and his family, and therefore must go to the representative of the family. Rights which have a tractus futuri temporis are also heritable. These are rights of such a nature that they cannot be at once paid or fulfilled by the debtor, but continue for a number of years, and carry a yearly profit to the creditor while they subsist, without relation to any capital sum or stock, ex. gr. a yearly annuity or pension for a certain term of years. Such rights are heritable, though they should have no connection with land; first, because by the annual profits arising from them, they have a degree of resemblance to feudal rights; 2dly, because no right goes to executors, but what may be instantly demanded by them from the debtor, upon the creditor's death; for the office of executor goes no farther than to gather in all the funds of the deceased instantly payable, in order to their distribution among the parties having interest in the moveable succession, Fac. Coll. i. 39, (DICT. • So found in the case of an heritable bond, "though the creditor died before the "term of payment;" Kilk. 8th Dec. 1738, Menzies, DICT. p. 5519. TITLE II. Titles of honour, and rights which have a tractus futuri temporis. BOOK II. Things properly moveable. (DICT. p. 5476.); so that admitting such rights not to be heritable ex sua natura, the heir is the only person who can take them. Leases of land are heritable, as to succession, both as they have a tract of future time, and as they are temporary rights affecting land, to which our statutes have given, in certain respects, the effect of real rights of land: Yet leases have been always moveable as to the fisk, and so fall under escheat, Tit. 5. 61. 7. On the other hand, whatever hath no resemblance to a feudal right, and produces no annual fruits, is moveable. By this rule, cash, plate, bullion, jewels, pictures, books, corns, cattle, instruments of tillage, and household stuffs, are all moveable subjects; and ships, even of the largest size, with their whole furniture. Arrears of whatever kind, incurred by the debtor previously to the death of the creditor, not only arrears of interest due on a moveable bond, or bond of annuity, but those that arise from a lease *, or an heritable bond, or other security on land, are moveable; for as they are already payable, and yield no annual profits to the creditor by being unpaid, law considers them as cash destined for his present use: So that the moveable nature of the debt or subject secured, which is the arrears, prevails over the nature of the security, which is undoubtedly heritable; for executors may recover the arrears due upon a right of annualrent, by a real action of poinding the ground. Whether the arrears due upon casualties of superiority are moveable, is not quite so clear. The opinion of Stair, B. 2. T. 4. § 10. followed by Bankton, seems attended with the fewest difficulties, viz. that these arrears, where a declarator is necessary for completing a right to them, continue united to the superiority, and consequently descend to the heir, as part of the superiority, till they be separated from it, either by the sentence of a judge ascertaining the amount of them, or by the superior's voluntary conveyance. This opinion too is supported by some ancient decisions, and by a later one, July 11. 1673, Faa, (DICT. p. 5449.). But, on the other part, it was adjudged, Jan. 28. 1671, Keir, (DICT. p. 5448.), that the arrears of liferent-escheat, which is, without doubt, a casualty requiring declarator, were moveable, though the donatory had not established or ascertained them by any sentence in his own lifetime; and it is hard to assign a reason why the arrears of liferent-escheat ought to be distinguished from those of nonentry, or the other casualties which require declarator. All arrears of feu-duties were, by a long uniform practice, accounted moveable; for feu-duties are not casualties of superiority, but a fixed sum, declared by the feu-charter itself to be due annually by the vassal: And since it was never doubted, that the arrears of rent due by a tenant before the death of the landlord, belong to the landlord's executor, the arrears of feu-duty, which is truly the rent reserved out of the lands by the superior to himself, must, on his death, go to his executors. It was for some time thought, that these arrears descended to the superior's heir, because feu-duties are inseparable from the right of superiority itself; and upon that medium it was adjudged, Kames, 14. (Wilson, July 29. 1718, DICT. p. 5455.), that the payment of them was a burden on the vassal's heir But though it be true, that the right to current and future feu-duties due to the superior be properly united to the superiority, yet past arrears are as truly disjoined from the right of superiority itself, as the arrears due upon an heritable bond are distinct from * See the doctrine as to division of rents between heir and executor discussed, infra, Tit. 9. § 64, and 65. from the right of the bond. It was therefore adjudged, Tinw. (not extant) June 25. 1755, Martin*, agreeably both to the more ancient practice, and to the nature of the subject, that the arrears of feu-duty descend, as a moveable subject, to the superior's executors †. TITLE II. Sums employed in trade. Stock of public and neries. 8. It is a fixed point, that sums employed by a merchant upon trade are moveable, because they are not secured upon land, nor yield any regular yearly profit to the adventurer. On the contrary, private copartthe stock itself is frequently lost. All writers are also agreed, on the same principle, that the sums sunk by private copartners into a joint stock are moveable. And, indeed, the shares of proprietors in any public company or corporation, constituted either by statute or patent, and the shares of partners in a private society, are precisely of the same nature as to this question, and therefore ought to be governed by the same rules 23. It can admit of no doubt, that the dividends declared previously to the death of the proprietor or copartner, are moveable; for they are arrears in the most proper sense; and as to future profits, these are neither fixed as to the yearly amount, nor as to their duration; and, besides, they are accessories to a capital, viz. the company-stock, contrary to the nature of rights which have a tract of future time; Forbes, July 25. 1710, Murray, (DICT. p. 5478); July 1. 1735, Dalrymple, (DICT. p. 5478 +.) 24. 9. Debts, called in the Roman law nomina debitorum, when they contain no clause of interest, ex. gr. debts due on promissory-note or account, are moveable; because money, the subject of them, is moveable; and because they are neither secured upon land, nor yield any annual profits to the creditor. Debts, in which interest is expressly stipulated, bear either a clause for seisin in lands, or a bare personal obligation upon the borrower, without any reference to land. The first kind has been already considered. In explaining the doctrine of personal bonds, a distinction must be made between our former and our present law; nor do all personal bonds fall under any one rule. Personal bonds bearing interest were, by a general rule of our ancient law, accounted heritable, as quasi feuda, because by the fixed yearly profits arising from them, they bore some degree of resemblance to rights properly feudal. But as such bonds were indubitably moveable of their own nature, and did not carry the distinguishing character of rights having a tract of future time, since they could be cleared off at once, supr. § 6., therefore, VOL. I. 3 Q Reported by Kames, Sel. Decis. No. 88. DICT. p. 5457. in † An apprising, and the whole sums contained in it, (principal, annualrents, accumulated sum and annualrents on it, or accessories thereto), belong to the heir, though the appriser die within the legal; Kilk. No. 3. voce ADJUDICATION AND APPRISING, Ramsay, DICT. p. 5538. The same rule is applied to adjudications; Fac. Coll. Jan. 16. 1786, Baikie, DICT. p. 5545; Ibid. July 1. 1794, Ryder, DICT. p. 5549. A previous judgment to the same purpose, Dec. 14. 1769, Willock, &c. Dicт. p. 5539, was reversed in the House of Lords, March 30. 1772, Dicт. p. 5544.; but this reversal appears to have proceeded on specialties. See note under the case of Baikie. Sums invested in the funds of Government have also been found moveable; Fac. Coll. Dec. 23. 1791, Hog, DICT. p. 5479. 23 2. Bell's Comm. 4, 5. 24 The stock of a company, though consisting partially, or even entirely of heritable property, is, in questions of succession, held to be moveable; Fac. Coll. Murrays, 5th Feb. 1805, DICT. v. HERITABLE AND MOVEABLE, App. No. 4.; Fac Coll. Corse, &c., 16th Dec. 1802, DICT. ut supr., App. No. 2.; Sime, 1st March 1804, DICT. ut supr. App. No. 3.; 2. Bell's Comm. 4. So also, on the other hand, debts due by a company, although constituted by bonds bearing interest, or secured on land, are considered as moveable, in all questions as to the succession of a deceased partner; Fac. Coll. Young, 27th Jan. 1790, DICT. p. 5495. Personal bonds, when moveable, and when heritable. moveable. Bills, |