BOOK II. 4th, Burgageholding. an acknowledgment of his right, either in money or in some other 8. Burgage-holding is that tenure by which royal boroughs hold of the sovereign the houses and lands that lie within the limits described in their several charters of erection. Where the sovereign intended to erect a borough which held of a subject superior into a royal borough, the superior's consent was sometimes adhibited, that so the lands might hold of the crown, and be subject to such jurisdiction as might be specified in the charter of erection. And hence, in the charters of several royal boroughs that were after wards wards ratified in parliament the ratifications contain an express salvo of such lands, lying locally within the erection, as were holden of a subject-superior. When, therefore, boroughs of regality were erected into royal boroughs, as St Andrew's, Dunfermline, Glasgow, Culross, &c. or boroughs of barony were so erected, as Dysart, the lords of regality, or barons, preserved their rights of superiority, if they did not consent to the erection; see Stair, July 14. 1676, Bor. of Arbroath, (DICT. p. 1870.); and consequently the borough thus erected, and all the tenants of it, held not of the crown, but of a subject superior, contrary to the general rule of burgal tenements, Hop. Min. Pr. p. 96. § 233. But even where the lands erected into a royal borough are holden of a subject, the borough holds of the crown all the liberties and privileges contained in their charter. Craig delivers it as the common opinion, Lib. 1. Dieg. 10. § 31. & 36. that burgage-holding does not, or at least did not, constitute a separate manner of holding, but that it was a species of ward-holding; with this only difference, that in a proper ward-holding the vassal is a single person; whereas in a burgage-tenure it is a community. Accordingly, in the erections of the most ancient royal boroughs, and particularly in a charter by Robert III. erecting the borough of Inverkeithing, the Reddendo is servitium solitum et consuetum, which the law interprets to be military service: And in most of the later charters erecting boroughs-royal, the service specially expressed is watching and warding; which might properly enough be said, some centuries ago, to be of the military kind. This service of watching and warding is one of the naturalia of the burgagetenure, and is due by the burgesses within the liberties or territory of the borough, though it be not expressed in the charter. Without doubt, boroughs must be free from the casualties incident to proper ward-holdings, of ward, non-entry, relief, and marriage: But that arises, not from the nature of the right, but from the particular condition of the vassal; for the borough, who is the vassal, neither marries, dies, nor is minor. 9. As the royal borough is the King's vassal, all the burgageholders hold immediately of the crown, with the exception already mentioned; and accordingly all burgage-charters bear, that the lands hold of the King pro servitio burgali. Though the bailies of the borough have a superiority, in point of dignity and jurisdiction, over their fellow-burgesses, they are not for that reason superiors of the borough in a feudal sense. Their powers in receiving the resignations of burgage-holders, and giving them seisin, are barely ministerial: For in those matters they act merely as the King's bailies specially authorised by statute 1567, C. 27., for completing the titles of the burgage-holders, St. B. 2. T. 3. § 38.; St. Martin's Styles, p. 39. & 528.: And hence they have no right to any composition for the entry of singular successors in burgal lands, Durie, July 22. 1634, Hay, (DICT. p. 15031.). If any part of the common lands of a borough are feued by the magistrates to a private purchaser, such lands hold not of the crown in burgage, but of the borough in feu-farm, Hop. Min. Pr. p. 97. § 235. Neither are lands purchased by a borough tanquam quilibet, out of their common stock, to be accounted burgal tenements, not being contained in their charter of erection. In relation to these, the borough utitur jure privato, i. e. is considered not as a borough but as an ordinary purchaser; and so must hold them under that tenure which is expressed in the grant by the seller; consequently the seisins of VOL. I. 4 F such TITLE IV. Burgage-te nants hold of Book II. 5th, Mortification. The power of mortifying is now considerably limited. such lands must be registered, not in the borough books, but in the books of the county or district where they are situated, according to the directions of 1617, C. 16. 10. Feudal subjects granted in donation to churches, monasteries, or other corporations, for religious, charitable, or public uses, are said to be given in mortmain, or, in our law-style, to be mortified; either because all casualties must necessarily be lost to the proprietor, where the vassal is a corporation, which never dies, Cr. Lib. 1. Dieg. 10. § 35.; or because the property of those subjects is made over to a dead hand, which cannot, contrary to the donor's intention, transfer it to another "5. Craig, Lib. 1. Dieg. 10. § 32. et seqq., distinguishes between donations of land made to prelates for the behoof of the church, and those granted in mortification, or in puram eleemosynam. He affirms, that in the last no services were due, because they were given merely in consideration of the prayers and masses to be performed by the donees, for the souls of the granter and his departed friends; but he is of opinion, that the first sort was truly holden ward, and that the only difference between a church-fee and a common ward-holding arises from the different conditions of the vassals. Thus the superior loses his casualties in a church-fee, because the church, who is truly the vassal, being in the judgment of law a corporation, never dies. Thus also prelates, where they were the vassals, though the Canon law disabled them from fighting in person, Decretal. L. 3. T. 34. C. 9. § ult., were yet bound to serve by a substitute, as if they had enjoyed the lands by military service. But however this might have been the case in the infancy of feus, the only service due to the superior in church-fees, for some centuries before the Reformation, were of a spiritual kind; so that if donations to churches or monasteries constituted no distinct holding by itself, the service required from the donees approached nearer to blanch-holding than to ward. 11. The purposes for which lands had been given to the church in the times of Popery, were, after the Reformation, accounted superstitious, and therefore (those lands were) declared to belong to the crown by the act of annexation 1587, C. 29. ; so that now the on lands which continue mortified to the church are the manses and glebes of parochial ministers, which by that statute are appropriated to the use of the reformed clergy. But mortifications may still be granted in favour of hospitals, either for the subsistence of the aged and infirm, or for the maintenance and education of indigent children, or in favour of universities, or other public lawful societies, to be holden either in blanch or in feu farm; and whatever the society be to whom the donation is made, the superior must lose all the casualties of superiority for the reason before assigned. As a consequence of this, lands cannot be mortified without the superior's consent, Cr. Lib. 1. Dieg. 11. § 21. And the Barons of Exche quer, 65 A piece of ground gratuitously feued for building a church, with a provision in the charter that it shall revert to the superior, if at any time applied to secular purposes, may yet be sold, when it becomes necessary to have a larger church than can be built on the area, provided the price be applied towards the purchase of another area of proper dimensions, and a title taken to this new subject under the same conditions with the original grant; Johnston, &c. 30th May 1804, Fac. Coll. Dicт. p. 15112. Where lands holding of the crown are vested in trustees for charitable purchases, they are entitled to dispose of the superiority,-as being a "transaction beneficial for the "trust;" Trustees of Moore's Mortification, 25th June 1814, Fac. Coll. quer, upon this ground, refuse to pass signatures of lands in favour of corporations, that so the crown-revenue may not be impaired by the loss of its casualties. TITLE V. TIT. V. Of the Rights of Superiority, and its Casualties. CERTAIN rights are, in a feudal grant properly constituted, retained by the granter, who is the superior; and others are acquired by the grantee or vassal. The rights retained by the granter are either fixed or casual. The fixed rights of superiority are various. The superior, by the grant to his vassal, is not truly divested of the lands contained in it; his right continues unimpaired, except in so far as the grant conveys the dominium utile, or property, to the grantee: His infeftment subsists as to every other respect, both in questions with his own superior, and with third parties. First, In questions with his own superior. Thus, on the death of a vassal who had made over, by a subaltern grant, part of his lands in favour of another, that vassal's heir can compel his ancestor's superior, upon his entry, to infeft him in the whole lands conveyed by the ancestor's charter, even in those, the property of which the ancestor had disponed to another, in the same manner as if no such subaltern grant had been made; for as no superior can be hurt by any subaltern grant of his vassal, without his own consent, neither can he avail himself of it, so as, upon that pretence, to refuse entering his immediate vassal's heir in all the subjects specified in the charter granted by himself to that vassal's ancestor. Yet sometimes, through oversight or inadvertency, those infeftments by the superior to the vassal's heir, in so far as relates to the lands of which the property had been conveyed over by the vassal's ancestor, are given, not of the lands themselves, but barely of the superiority. 2dly, The granter's infeftment still subsists, notwithstanding the grant made to his vassal, in all questions with third parties. Thus the granter, or superior, is, in consequence of the dominium directum, which he retains to himself, entitled to pursue all real actions concerning the lands, against every person, other than the vassal to whom he has made the grant, or such as derive right from him. On this ground, an action was found to be competent to one who was infeft barely in the superiority, for removing a possessor from the lands, if he could not produce an heritable right affecting them in his favour, sufficient to maintain himself in the possession, Durie, Nov. 19. 1624, L. Lagg, (DICT. p. 13787.) 6. 66 2. Superiority carries likewise a right to the yearly feu-duty payable by the vassal to the superior in his Reddendo; and because this, and all other rights of superiority, where the superior is not in possession of the lands themselves, are debita fundi, or real burdens affecting the fee, an action for poinding the ground lies at his instance for the payment of them, against all singular succes sors 66 One infeft in the superiority merely, cannot pursue a declarator of non-entry ; Park, &c. 16th May 1816, Fac. Coll. But such an infeftment is sufficient to consti tute a freehold qualification; Ibid. Lord A. Hamilton, 23d Feb. 1819; unless where an objection arises from there not being a proper feudal separation of the property and superiority; Ibid. Norton, 6th July 1813; Redfearn, 7th March 1816. BOOK II. Action of shew sors in the land; which, however, is no bar to a personal action for recovering them, against such as have either come under an obligation to pay them, or have intermeddled with the rents of the lands out of which they are due*. The superior is also entitled to the personal services which the vassal is bound to perform by his charter. The rule laid down concerning the payment of blanch-duties, supr. T. 4. § 7., obtains in all feudal grants, with regard to personal services, viz. That where they are annual, ex. gr. the reaping of corns, cutting of hay, &c. the vassal is free unless they be demanded within the year, Durie, Jan. 30. 1624, L. Carnousy, (DICT. p. 14493.) †. In our more ancient charters, vassals were frequently taken bound to attend on their superiors at huntings and hostings; but as those clauses were thought to heighten too much the authority and influence of superiors over their vassals, all such personal services, whether due by charter or custom, were abolished by 1. Geo. I. St. 2. C. 54. ‡. And though the title of this statute be confined to the Highlands of Scotland, yet that part of the enactment which abolishes those services is unlimited, and so must extend over all Scotland, wherever the lands of the vassal liable in them may happen to be situated. To make up for the superior's loss through the want of these services, an annual sum is appointed to be paid by the vassal, which, if it cannot be fixed by the parties themselves, is to be settled by the court of session. In a case decided in 1721, between the Duke of Gordon and Hay of Rannes, who is none of the most inconsiderable of the Duke's vassals, the court awarded 5s. Sterling as the annual value of the vassal's personal services. 3. It may be mentioned as another fixed right of superiority, ing the holding. that all superiors are entitled to know the nature of the deeds they may have granted to the vassal, in case they have neglected to keep copies of them; and though they be furnished with copies, they may bring an action to have the deeds themselves judicially exhibited, that their validity or import may be ascertained. This was, in our ancient law, called an action for shewing the holding, Q. Attach. C. 25.; St. Rob. III. C. 36. The superior's title in it was his charter, containing the lands possessed by the vassal. But if he had once forced the production of his vassal's title-deeds, he could not bring a new action of the same kind during that vassal's lifetime. * Durie, Feb. 24. 1632, Bishop of Galloway, DICT. p. 4186. It has been found, that a vassal continues liable, even after he has sold the lands, until the purchaser be received by the superior; Kilk. No. 2. voce FEU-DUTIES, Wallace against Ferguson, DICT. p. 4195. But the superior's personal claim against all intromitters, except the vassal himself, is limited to those years in which the intromission has taken place, and to the extent of the feu-duty, in each year; Durie, March 26. 1629, Rollo, DICT. p. 4185; Ibid. penult. Jan. 1639, Cockburn, Dicт. p. 4187. See also Kilk. No. 1. voce FEUDUTIES, Biggar' against Scott, Dicт. p. 4191 67. + See Fount. Dec. 13. 1693, Feuars of Kinross, Dicт. p. 13071 68. An obligation in a feu-charter to maintain a boat, and to uphold the mansionhouse for the reception of the superior, does not fall under the statute; Fac. Coll. Feb. 5. 1762, Duke of Argyle, Dicт. p. 14495. 67 It was, in this case, found, that personal action for payment of feu-duties does not lie against a tenant of the vassal, "the tenant being removed before the process was raised." Several of the Lords, however, dissented; thinking, "that if once "action lay, it remained while the tenant was debtor in the rent to his master the ❝ vassal." 68 It was here found, "that carriages, and other such indefinite prestations and "services, prescribed every year;" but that this did not extend "to kain-fowls and "other casualties." |