1187. The Acts next make various provisions for shortening conveyances, by permitting a reference to be made to former deeds, in place of the repetitions of their provisions which were formerly required in every new transfer. These and subsequent provisions, in which simpler modes of completing titles are introduced in the case of judicial factors, trustees in bankruptcy, and liquidators of joint-stock companies, are of too technical a character to admit of their being explained to the general reader.

1188. By section 107 an extremely simple method of extinguishing mid-superiorities has been substituted for the cumbrous and expensive proceedings which were formerly requisite for that purpose. The superior is empowered to grant a simple deed of relinquishment, and this one deed, having written on it first the acceptance of the vassal, and then the investiture of the over-superior, shall, when recorded in the appropriate register of sasines, be held to extinguish the mid-superiority. This form is still competent, but is virtually superseded by the still simpler form provided by the Act of 1874. (Supra, 1179.)

1189. The statute further authorizes the combination of actions of constitution and adjudication against an apparent heir, whether he renounces the succession or not, and declares that the citation, in the combined action, shall have the effect both of a general and a special or general special charge, as circumstances may require (sec. 60). The decree of adjudication thus obtained against the apparent heir, is further declared to be equivalent to a conveyance from the ancestor, sec. 62. By this section also, as formerly mentioned, the privilege of the heir, known as the annus deliberandi, is restricted from a year to six months, sec. 61.

IV. SALE BY AUCTION.

1190. An auction, or roup, is an arrangement for offering property to the competition of purchasers.

1191. The Articles of Roup, being the conditions under which the seller exposes his property to sale, form an integral part of the contract between the seller and purchaser. This contract is completed by the offer or bidding, on the part of the purchaser, and the acceptance by the seller or his representative, which is formally declared by the fall of the auctioneer or salesman's hammer, the running of a sand-glass, or any other means which may have been specified in the articles of roup. (Mont. Bell, 719.)

1192. The articles of roup usually narrate the nature of the right to be conferred, regulate the manner of bidding, prescribe the order in which offerers are to be preferred, and name a person who shall be empowered to determine disputes between bidders and declare the purchaser, called the judge of the roup.

1193. Before the sale commences, these articles are read over, or otherwise published, to the intending purchasers. They must be executed on stamped paper.

1194. In the sale of heritable subjects, it is usual for the articles of roup to contain a clause of registration, by which the parties consent to a decree going out in terms of the conditions which the article contains, and under which they may be enforced by legal diligence. (Ib. 724.)

1195. A minute of the offers is made generally on the back of the articles, and signed by each offerer.

1196. The implied conditions, which are binding on the seller and purchaser in all auctions, in addition to those expressed in the articles of roup, are-1st, That the seller shall not attempt to raise the price by means of fictitious offers, but shall fairly expose the article to the competition of the purchasers; and 2nd, that the purchasers shall not combine to suppress competition. (Macallan's Erskine, ii. p. 674, note 3; Bell's Prin. 131.)

1197. An Upset Price, or price below which the subject is not

to be sold, may be fixed by the exposer, or he may reserve to himself in the articles of roup a power to offer; but unless he does so in express terms, he cannot legally interfere with the sale, either by offering himself or appointing another to do so for him. If there be no express provision to the contrary, it is thus an implied condition that the sale is "without reserve," or "at the pleasure of the company." (Idem.)

1198. The conditions embodied in the articles of roup cannot be controlled by any verbal declaration of the auctioneer. (See on this subject More's notes on Stair, lx. lxiv. xci.; Ersk. iii. 3. 2, and Ivory's note; Brown on Sale, 578; Bateman on Auctions; Sugden's Law of Vendors and Purchasers.)

CHAPTER III.

OF THE RIGHTS AND BURDENS ATTACHING TO
HERITABLE PROPERTY.

1. PUBLIC BURDENS.

1199. In addition to taxation, local and general, which falls clearly beyond the scope of the present work, there are certain rights which the public possess over the landed property of the country, and which constitute burdens on its proprietors or occupiers. Though properly belonging to the department of public law, of which we do not profess to treat, these burdens are commonly viewed in connection with the rights of individuals, and we shall therefore mention them very briefly.

1200. Public Roads or Highways.-The right of highway is a right of property in such a portion of soil as will afford a passage over the property of private individuals, which is vested in the Crown as the representative of the public. (Stair, ii. 7. 10; Ersk. ii. 6. 17; Bell's Prin. 659.)

S

1201. The distinction between a public and a servitude road will be stated in treating of the latter.

1202. The earlier statutory arrangements placed the public roads of Scotland under the management of the Commissioners of Supply and Justices of the Peace. (1617, c. 8 (1669, c. 16; 1670, c. 9; 1686, c. 8; 11 Geo. III. c. 53).) Subsequently, local Acts were passed, giving power to trustees to apportion the statute labour, or amount of work to be furnished annually by tenants and cottars in the country, and by the inhabitants in burghs, for the repair of highways not turnpike; and to levy tolls and borrow money on the security which these tolls afforded, for the support of such as were turnpike. Great abuses arose out of the manner in which these Acts were obtained and administered, and, as a remedy, the General Road Acts (4 Geo. IV. c. 49; 1 and 2 Will. iv. c. 43) were passed. Notwithstanding the attempt thus made to reduce the management of the highways to an uniform system, the peculiar circumstances of each district have been found to necessitate so many reservations, that local Acts have been passed for almost every county. These Acts are to be read as if the last General Act (1 and 2 Will. iv. c. 43) were incorporated with them. The ruling statute on this subject is now the "Roads and Bridges (Scotland) Act, 1878." (41 and 42 Vict. c. 51.) It enacts that all existing local Acts should continue in force till 1st June 1883 and no longer, at which date its own provisions should come into force, unless before then its own provisions shall have been adopted, or tolls and statute labour abolished in any county. The Act provides for its own adoption in counties and burghs, for the appointment of road trustees, boards and committees, meetings, conduct of business, general management, construction of roads and bridges, finances, assessment, along with special provisions for particular districts, and other details. It does not repeal any previous general Act.

1203. A highway must be at least twenty feet broad, not

including the ditches, and powers are conferred on the trustees to widen all highways to that extent. They are further empowered to widen them where necessary to forty feet, compensation in this case being given for the ground taken beyond the twenty feet.

1204. Jurisdiction under the General Road Act is vested in the Justices of Peace and Quarter Sessions, and the review of the Court of Session is excluded. An excellent digest of the Road Act, and of the decisions connected with highways, will be found in Sheriff Barclay's "Law of Highways," and also in his "Digest of the Law of Scotland for Justices of the Peace." The latter work contains an enumeration of the statutes on the subject from David II. downwards.

1205. Right of Way.-The existence or non-existence of a right of way on the part of the public is often a question of extreme difficulty, the solution of which depends on a multitude of circumstances, which render almost every case a new one. A right of way must lead from one public place to another, and must proceed on a definite line. The public cannot prescribe a right of merely roaming over unenclosed ground: a mere jus spatiandi is a kind of right unknown to the law of Scotland. (See cases collected in Guthrie's Bell's Prin. 1010, note (e); and the recent case of Mags. of Edinburgh, 1877, 4 R. 997.)

1206. As to jurisdiction, it may be stated, that where what is called a "possessory judgment" is sought on the ground that use and possession of the road for a period beyond seven years can be proved, the Sheriff Court is a competent tribunal; but it is not competent for the Sheriff to decide whether or not there be evidence sufficient to cut the proprietor off from his right to exclude the public on the ground that the prescription of forty years has not run against him. (M'Donald v. Watson, Feb. 23, 1830, and Wilson v. Henderson, March 2, 1855.) This latter question must be tried by declarator before the Court of Session.