[up to his master. If the apprentice stated on attestation that he was not an apprentice, he may, on the requirement of the commanding officer, be punished by the Court by imprisonment for not more than three months. A master who gives up the indenture of his apprentice a month after his attestation is entitled to so much of the bounty payable to the apprentice on enlistment as has not been paid to the apprentice before notice was given that he was an apprentice.]

778. The master is entitled to all the earnings of the apprentice, whether gained in the service of another or by employment on his own account. (Fraser, 350.)

779. If the apprentice fail to conduct himself with decency, honesty, and sobriety, the master is entitled to dismiss him, and to claim damages from his cautioner. (Bunell v. Alexander, June 12, 1793; Fraser, 351.)

780. On the subject of dismissal, the principles already stated under the contract of service are, for the most part, applicable to that of apprenticeship.

III. DISSOLUTION OF THE CONTRACT.

781. The consent of both parties, if clearly expressed in writing, will be sufficient to dissolve the contract; and at the death of either party it is at an end. (Fraser, 366.)

782. The executors of the master will not be compelled to refund such part of the apprentice fee as may be considered a fair remuneration for the instruction given during his life. (Cutler v. Libberton, M. 583; Burn's Justice, i. 200.)

783. Should the contract, on the other hand, be dissolved by the death of the apprentice, the whole fee remains with the master. (Shepherd v. Innes, M. 589.)

784. The insanity of either party will void the contract, unless it be a merely temporary attack. (Lessels, 3 Sup. 337.) 785. The master's bankruptcy will put an end to it, and

entitle the apprentice to rank on the sequestrated estate for a suitable proportion of the apprentice fee. (Ogilvie v. Hume, 2 Sup. 34.)

786. The marriage of a male apprentice does not annul the contract; but on the marriage of a female, her husband will be entitled to her person, though he will be liable in damages to the master. (Fenton v. Findlay, Elch., voce Apprentice, 3; Fraser, 369.)

787. The contract will be dissolved by any occurrence which renders either party incapable of fulfilling its obligations, whether the occurrence be voluntary, as by failing to take out a licence to practise required by statute, or involuntary, by becoming utterly and permanently disabled by bodily disease. (Fraser, 361 and 368.)

788. An indenture to a company will be binding so long as one of the original partners is in existence; and, in the case of a joint-stock company, it will not be at an end though all the original partners retire, provided no attempt be made to transfer the apprentice to a different company. (Ib.)

789. Cautioners of Apprentices.-The cautioner binds himself that the apprentice shall faithfully discharge his duty, under the penalty of a certain sum to be paid to the master on failure.

790. Cautioners have the benefit of division; but, even before the passing of the Mercantile Law Amendment Act (19 and 20 Vict. c. 60, sec. 8), the master was not bound to discuss the apprentice before coming on them. (Balfour v. Hutton, M. 3585; Forbes v. Dickson, 4 Sup. 708.)

791. Every plea which would be valid to the apprentice as a defence against an action of damages for breach of contraet will be valid to the cautioner. (Aikman, M. 12311; Robertson v. Smith, Hume, p. 20.) If the penalty in the indenture is greatly beyond remuneration for damages, it will be equitably restricted by the Court.

792. The cautioner has an action of relief against the appren

M

tice in all cases in which he is called upon. (Ersk. iii. 3. 65.)

793. Statutory Provisions.-For these vide supra, secs. 651, 710, 714.

CHAPTER VI.

HERITABLE AND MOVEABLE SUCCESSION.

1. OF THE DISTINCTION BETWEEN HERITABLE AND MOVEABLE PROPERTY.

794. It is indispensable, for many legal purposes, that the line by which heritable and moveable property in Scotland are distinguished should be distinctly traced. Some of these purposes have already been pointed out in treating of the relations of husband and wife, and parent and child; but it is in its influence on the laws by which the succession to property and its transmission are regulated, that the importance of the distinction which we have mentioned becomes most apparent.

795. The character of heritable or moveable, which in some, though by no means in all respects, corresponds to real and personal property in England, may belong to an object, either (1) from its own nature, i.e. from its being really immoveable, as lands or houses, or moveable, as money or furniture; or (2) from its relation to a subject which possesses either of these characteristics; or (3) from the destination of its owner, he having placed it in the position of an accessory to some other object, or declared that, in respect to succession, it shall be regarded as possessing one or other of these characters.

796. (1.) Natural Character.-Land, and all parts of land, such as mines and quarries, and generally things which are naturally immoveable, are in law heritable. Whatever moves, or is capable of being moved from place to place, without injury, or

change of nature, either in itself or in a subject with which it is connected, is moveable. (Stair, i. 2. 2; Ersk. ii. 2. 4, 7; Bell's Prin. 1472.)

797. (2.) Accessory Character.-Things which are naturally moveable may become heritable, from the relation in which they stand to immoveable objects; for example:

798. Anything which has been artificially attached to land, so that it cannot be removed without destruction, or change of nature or of use, is heritable by accession. Though this accessory heritable character may be acquired by objects which are neither built on the soil nor fixed into it, it is generally to buildings and fixtures in mills, houses, and to objects which are so fixed, or of such extent that they cannot be removed entire, that it belongs. (Stair, ii. 1. 40; Ersk. ii. 2. 4-7, note 5 to Ivory's ed. p. 241; Bell's Prin. 1473; [Brand's Trs., 1878, 5 R. 607]) Such objects become heritable when, though not completely fixed to a heritable subject, they are either essential or material to the use of the heritage; or if there is a special adaptation of their construction to the use of the heritage giving them a special value, which they would not have if placed elsewhere; or where there is an express declaration by the owner of an intention that they should be annexed to the real estate. (Dowall, 1874, 1 R. 1180.) [Tile-hearths are heritable by accession. Grates, gas-lustres and brackets, picture-rods, also ornamental stone lions and fire-clay vases attached to stone pedestals by stucco and cement, are moveable. (Nisbet, 1880, 7 R. 575.)]

799. Trees, evergreens, and all plants not requiring seed or cultivation, are likewise heritable (Macleod, June 24, 1761, M. 5436; Anderson, 6 D. 1315); the reverse being the case with the industrial fruits of the soil. These latter go with the property of the seed and labour, and are regarded as manufactures, in which the productive powers of the soil are employed. (Stair, Ersk., and Bell's Prin. ut sup.) [But in the case of

[Nisbet (which was one between the buyer and seller of an estate) vegetables in the kitchen garden were held to be included in the sale, and therefore heritable.] Things, on the other hand, which are heritable in their nature, may become moveable by possessing the character of accessories to moveable objects of greater importance. A share of heritable subjects, forming part of the stock-in-trade of a mercantile company, is a trust estate in the partners, and moveable. (Bell's Prin. 1474.)

800. (3.) Destination.-Where there has manifestly been a purpose with reference to any object which, if effected, would have changed its character from moveable to heritable, or the reverse, it will be changed accordingly. Thus, materials prepared for completing the windows of a house, though not yet applied to that purpose, have been held to be heritable. (Johnson, Feb. 25, 1783, M. 5443.) The same will be the effect of a positive destination in point of succession either to the heir or the executor. Books and furniture may thus be made heritable by destination as regards succession. (Veitch, May 25, 1808, M. Sewand, Conf. App. 4.) But the character thus artificially imposed on subjects by destination will not be permitted to change their character as regards the diligence of creditors. (Forbes, 1772; Bell's Prin. 1475.) Spinning-machines having no special adaptation to the building, and only attached to it for their more convenient use, have been held to be moveable in a question between heir and executor. (Dowall, ut sup.)

801. Incorporeal Subjects.-These follow the analogy and share the character of the corporeal subjects to which they refer. Thus, rights to land, whether of property or liferent, are herit able. Bonds and dispositions in security are no longer heritable, except in regard to the fisk; but they are not to belong to the husband jure mariti, nor to the wife jure relicta, and are to be held heritable in computing legitim. If executors are expressly excluded, such bonds will still be heritable to all intents and