death, bankruptcy, or marriage; and it is enacted that the mortgages shall be entitled to priority as documents of debt, according to the date at which they are recorded in the register book, and not according to their own dates.

IIL SALE OF HERITAGE.

1157. The sale of heritable property, in so far as it is a contract between buyer and seller, is regulated by the principles of the contract of sale already explained.

1158. Writing is indispensable to its constitution (Ersk. iii. 2. 2; Bell's Prin. 889; Menzies, p. 827); and, as some time must elapse before the titles of the seller can be examined and the formal conveyance executed, it is customary for the parties either to execute a formal minute of sale, or to interchange written missives, fixing the conditions of the bargain. A complete contract is thus constituted. If not holograph of the parties, missives of sale must be authenticated like other probative deeds; and a minute of sale ought always to be a regular deed, written on stamped paper, with a clause of registration for diligence, and a testing clause. When missives of sale are not written on stamped paper, they must be stamped afterwards, before they can be founded on in a court of law. Where minutes of sale or missives are informal, the ordinary rules of locus penitentiæ, rei interventus, and homologation apply to them (Ersk. iii. 2. 2; Bell's Prin. 889; Menzies, 828).

1. Constitution and Transmission of Heritable Rights. 1159. The constitution of heritable rights, and their formal transmission, whether by inheritance or purchase, are still regulated in some degree, both in this country and in England, in accordance with the relations which subsisted between the overlord, or feudal superior, and his vassal, in a condition of society which for centuries has ceased to exist.

1160. It would be difficult to assign any purpose which the feudal system has served for many generations, except that of complicating the titles of heritable proprietors, and increasing the expense, and not unfrequently the risk, attending their transmission. So strongly, indeed, have the inconveniences of our law of heritable property been felt, that in almost every session in recent years, Parliament has effected some fresh innovation on its provisions. Still the skeleton of the feudal system has been permitted to remain; and, as an existing institution, must be placed in outline before the reader.

2. Constitution of Feudal Rights.

1161. He who makes a grant is called the superior; he who receives it, the vassal. The subject of the grant is the feu,1 a word which, however, is sometimes used in a more special

sense.

1162. According to the theory of the feudal system, the sovereign was the actual possessor, in the first instance, of the whole land of the nation; by him it was granted to his vassals on conditions of military service; and by them to sub-vassals on the like conditions. The system of subinfeudation in Scotland was permitted to extend ad infinitum, notwithstanding an

1 The origin of the word feu or feud has been a subject of much discussion amongst etymologists. By some, it is derived from the Latin fides, and ead, or odh, or od, Teutonic words, signifying a property or estate in land; whilst by others, and with perhaps greater probability, the whole word is maintained to be Teutonic, equivalent to vich, cattle, ultimately from the same root with the Latin pecus, which, in the form of pecunia, came to signify property, and its representative money,— because, as Varro remarks, property amongst pastoral nations consisted of cattle. (Varr. De Lingua Latina, 5, 10, sec. 95, ed. Mull.) A feu or feudum, in this sense, would be a piece of land held for a pecuniary consideration, using pecuniary in the wide sense which its etymology suggests. See the merits of the two suggestions discussed in the article on the Feudal System in Chambers's new Encyclopædia.

alleged attempt to abolish it so early as the reign of Robert 1. (Menzies' Lectures on Conveyancing, p. 583.) In England, subinfeudation was prohibited by statute so early as the year 1290 (Quia emptores, 18 Ed. 1. c. 1); the vassal being permitted to dispose of his rights only by putting the purchaser in his place, and enabling him to hold directly of the superior.

1163. In Scotland, heritage has always been transmissible by either of these methods. Where the system of subinfeudation is adopted, a new right of property is brought into existence at each stage of the transmission; and this is called constituting a fee. The formal instrument by which a fee is constituted, and a new feu created, is called a feu-charter; that by which it is transmitted is called a disposition.

1164. When a fee is constituted, a certain interest in it is always retained by the superior. This interest is called the superiority, or dominium directum; as opposed to the more substantial interest transmitted to the vassal, which is called the property, or dominium utile.

1165. In the earlier stages of feudality the vassal was chosen by the overlord on the ground of his aptitude for military service, and the feu was granted him merely for life. After the fee became hereditary, the superior was in the habit of resuming possession during the minority of the vassal, on the ground that he was then unable to discharge his military duties. The value of this right on the superior's part was commuted for an annual payment, after the relation between him and the vassal had become pecuniary. This arrangement was called taxed ward.

1166. These military tenures were abolished in Scotland in 1747, as dangerous to public tranquillity; by 20 Geo. II. c. 50, and 25 Geo. II. c. 20, those held of the Crown being converted into blench or blanch holdings, and those held of subjects into feu holdings.

1167. A blench holding involved the payment of a merely nominal sum-e.g. a rose, a penny Scotch, a peppercorn, or the

like, if asked only (si petatur tantum); i.e. it was as nearly a free estate as the theory of the feudal system permitted. An estate absolutely free was called allodial, which is defined by Lord Stair to be that "whereby the right is without recognisance, or acknowledgment of a superior." Moveables, he says, are sc enjoyed, "and lands and immoveables were so till those feudal customs." (ii. 3. 4.)

1168. A holding in feu farm, on the other hand, involved the payment of a valuable consideration, the extent of which was matter of arrangement between the parties. These latter are the ordinary feu-duties of the present day.

1169. In addition to the dues thus paid for the recognition of his right, certain occasional payments, called casualties, were made by the vassal to the superior. The only casualties now in use (ie. in feus granted prior to 1st Oct. 1874, see next section) are those which are payable to the superior in consequence of the transmission of the feu, by sale or succession, to a new vassal. When an heir succeeds to a feu, he is bound for the casualty of relief; in other words, he must pay a duplicate of the duty blench or feu, as the case may be, for the first year of his entry. A purchaser is liable, on entering with the superior, to pay one year's rent, but is entitled to deduct the year's feuduty, taxes, and a reasonable allowance for repairs. This payment is what is technically known as the casualty of composition. Composition or relief may be fixed by the terms of the charter, in which case the payments due at common law are superseded, and the entry is said to be taxed. The superior formerly was always entitled to have an entered vassal, and might have had the fee forfeited in the event of the vassal's refusing to enter. On the other hand, the vassal was entitled to demand an entry, and on refusal from his immediate superior, might pass him by and enter with a higher. On the subject of this section generally, the following writers may be consulted:-Stair, i. 2. 13, ii. 3; Ersk. ii. 3; Bell's Prin. sec. 676 et seq.; Ross' Lec.

ii. p. 23 et seq.; Craig, de Feudis, the Libri feudorum usually annexed to the Corpus juris; Hallam's Middle Ages, i. p. 200 et seq.; Sir Francis Palgrave's Rise and Progress of the English Commonwealth, and his Histories of Normandy and England; Thorpe's translation of Lappenberg; Stephen's Commentaries, etc.

1170. By sec. 23 of the Conveyancing Act, 1874, these casualties in the sense of being casual-were virtually abolished as regards feus granted after the Act came into force. Henceforth the annual feu-duty must be of fixed amount, and no casualties are payable by law irrespective of express agreement; and it is not lawful to stipulate for any casualty on the succession of an heir or singular successor, or in any way except at fixed intervals; but it shall be lawful to stipulate for a permanent increase or reduction of the feu-duty, or for payment of a casualty in the form of a periodical fixed sum, provided the amount of such increase or reduction, or of such periodical payment, and the times from and after which it shall have effect, and at which it shall be exigible, be certain. Further, no fee can now be in non-entry; for by sec. 4 (sub-secs. 2 and 4) of the same Act any proprietor is to be deemed as entered with the nearest superior in the lands from the date of registration of his infeftment to the same effect as if such superior had granted a writ of confirmation, and whether his own title or that of any over-superior be completed or not. The old action of declarator of non-entry now resolves itself into an action for payment of any casualty exigible at the time, and the implied entry is not pleadable in defence of such action. Secs. 15, 16, and 17 provide for the redemption of casualties in feus granted before the coming in force of the Act; as to the operation of which, see Morris, 1877, 4 R. 515.

3. Of the Transmission of Heritable Rights.

1171. Instruments of Conveyance. - Charters, dispositions, bonds, and other deeds, by which heritable rights and securities