gives a personal action for payment; and the vassal remains liable both FEU-DUTY. for byegone and future feu-duties, notwithstanding the sale of his lands, until the purchaser becomes vassal by obtaining an entry from the superior, and subjecting himself to the personal obligation. Upon such entry delegation takes place; the burden of future feu-duties falls upon the new vassal, with entire relief to the old, except as to byegones. The vassal, moreover, cannot renounce, or, as it is called, 'refute' his feu invito superiore, to the effect of becoming free of the personal obligation even for future feu-duties. And where the vassal, besides undertaking his obligation in the usual form by the feu-charter, or by a feu-contract, grants a separate personal bond to the superior, binding himself, and his heirs and successors, for payment of the feu-duty, the obligation in the personal bond is independent of that constituted by the feu-charter or feu-contract. The obligation arising from the proper feudal contract passes with the lands; but that contained in the personal bond remains incumbent on the granter of the bond, notwithstanding the sale of the lands, and is not got rid of by the entry of the purchaser as vassal.* The obligation under the separate personal bond remains permanently a burden on the granter of the bond, who cannot get rid of it except by consent of the grantee. The feu-duty forms a charge also on the lands. The payment of it is one of the conditions of the grant. And, the superior having a real legal estate in the lands, having in fact the right to the lands, and to eject the vassal if he does not fulfil the condition by paying the feu-duty, the feu-duty is a real and preferable burden on the lands,—a debitum fundi. It is part of the reserved estate in which the superior stands infeft; and the superior's claim for payment of the feu-duty is ranked as a burden on the feu, in preference to the claim of any third party upon such feu made through the vassal. The lands, as given out to the vassal, and held by him, are subject to the burden; and he cannot give any right to the lands otherwise than subject to the same burden. The superior's right to the feu-duty is preferable to the vassal's right to the lands. Feu-duties do not bear interest by law until a judicial demand for payment is made. After such demand, interest runs ex morâ;5 and where the price of the site of a burnt tenement in a royal burgh, sold under authority of the Act 1663, cap. 6, was consigned in bank in a process of multiplepoinding, and the superior was ranked preferably thereon for arrears of feu-duty, he was found entitled to bank interest on the arrears from the date of the consignation. It is usual, however, in modern feu-rights, to stipulate for payment of interest, and likewise 1 Hyslop, 13th March 1863, 1 Macph. 535. 2 Wallace, 29th Jan. 1739, M. 4195. 3 Hunter, 16th December 1834, 13 Sh. 205. 4 King's College of Aberdeen, 11th Aug. 1854, 1 Macq. App. 526; reversing the judgment of the Court of Session, 11th 5 Tweeddale, 2d March 1842, 4 D. 862. ENTRY OF for a fifth part more of penalty in case of failure. In these cases, the terms of the obligation are similar to those of a bond of annuity; and the rate of interest, which in general will be five per cent. per annum, should now be expressed. The reddendo usually stipulates for payment of one year's feu-duty, over and above the current feu-duty of the year, on the entry of each SUCCESSORS. heir; the following being the words used: Doubling the said feu-duty the first year of the entry of each heir to the said lands, as use is of 'feu-farm.' This means that each heir shall pay for the year of his entry two years' feu-duties; one for relief or entry-money, and the other as the ordinary payment due for the year. The extra year's feu-duty is due whether stipulated for or not. If it is intended to make the heir pay two years' feu-duties, in name of relief or entry-money, the simplest course, I think, is to say-'Paying the sum of £ (that is, the amount of two years' feu-duty) for the entry of each heir, over and ' above the feu-duty of the year in which such entry shall take place.' But the more usual way is to say-- Doubling the said feu-duty the first ' year of the entry of each heir to the said lands, besides paying the feuduty of the year in which such entry shall take place.' The same result arises when the obligation is to pay a duplicand of the said feu-duty over and above the feu-duty of the year."2 In the Earl of Zetland's case an inquiry was made into the practice, and a tabular view contained in the report gives seven different forms of the clause, each inferring the payment by the heir upon his entry of two years' feu-duty over and above the feu-duty of the year in which the entry takes place. In regard to singular successors, or strangers, the charter may either stipulate for a particular amount, or rate, of entry-money; that is, it may tax the entry,' as it is technically called; or it may leave the legal rule of liability to operate, in which last case a year's free rent or value is payable for the entry. I will notice the rules for ascertaining the free rent, when considering the subject of the completion of titles in the person of singular successors. I may remark here that, where lands are feued out at high rates of feu-duty, a heavier burden may be imposed by stipulating for one year's or two years' feu-duty, on the entry of singular successors, than by allowing the legal rule to operate. Because, in estimating the free rent, the feu-duty of the year is to be deducted; and it may be that the rent remaining after that deduction is not equal to the amount of one, or, at all events, of two years' feu-duty. If the entries of singular successors are to be taxed, one and the same clause, or the same forms of words, may be employed for that purpose, as with reference to the entry of heirs. Where the amount is considerable, it is not unusual to stipulate for penalty and interest, as in the case of an ordinary money liability. In modern practice, and specially in connexion with feus for building purposes, these casualties are frequently reduced into fixed periodical 1 Erskine, ii. 5. 48. 2 Earl of Zetland, 30th June 1841, 3 D. 1124. payments; the interval at which they successively fall due being from eighteen to twenty-five years. This is a great improvement on the older system, which leaves them to depend on the lives of successive vassals. It would be a further improvement if they could be commuted into fixed annual payments, and the casual payments abolished altogether. In blench-holdings, it is not usual to insert the obligation to double the blench-duty on the entry of heirs; but, if it is intended to tax the entry of singular successors, an express clause is requisite. Should nothing be said on the subject, the general rule of law will operate, and one year's free rent will be payable by singular successors as entry money. After the reddendo, the order of the clauses in the new and old CLAUSES styles respectively varies, and, in most instances, their form also. The REDDENDO. Before the passing of the Titles Act of 1858, the modern form contained a precept of sasine equally with the old form; the style of the precept being shorter and more simple. The import of the clauses is nearly the same, both under the old and new forms; and I propose to explain them in the order of the modern deed. FOLLOWING The first is the assignation to writs. The form in the Lands ASSIGNATION Transference Act is,-' And I assign the writs, and have delivered the TO WRI18. same according to inventory;' which clause the Statute declares to import, unless specially qualified, an absolute and unconditional assignation to such writs and evidents, and to all open procuratories and pre'cepts therein contained, to which the disponer has right.'1 This result is beyond the province of the original charter; being appropriate to the disposition of an existing estate, the titles of which are transferred absolutely, and delivered along with the estate itself. But by the charter we are creating a new estate. The granter of the charter does not transfer the writs absolutely; because they contain his own 1 10 & 11 Vict. c. 48, s. 3. VOL. I. 2 P ASSIGNATION OF REN18. LEGAL AND TERMS. right, as well as the new estate; indeed, in one view, the charter is the In reference to this clause, you will remember that, where the writs We next have the assignation of rents. This clause, in the new form, imports, unless specially qualified, assignation to the rents to become due for the possession following the term of entry, according to the legal and not the conventional terms; unless in the case of forehand rents, in which case it is held to import an assignation to the rents payable at the conventional terms subsequent to the date of entry. In explanation of the expressions, 'legal terms,' 'conventional terms,' and 'forehand,' as applied to rents, it may be necessary to state shortly that the rent of lands for every half-yearly term is legally due on the last day of the term, that is at Whitsunday, 15th May, and Martinmas, 11th November yearly. But in proper agricultural possessions such rent is seldom conventionally due, that is, is seldom made payable by the agreement of parties, until six or nine months, and sometimes not until twelve months later. The rent may be called the landlord's portion of the produce; and, as it should be paid out of the produce, the conventional postponement of the payment takes place to allow the tenant time to reap and sell his crop, and pay the rent out of the proceeds. To take an example: Suppose that the tenant enters at Martinmas 1856; he has been half a year in possession by Whitsunday 1857, which, accordingly, is the legal term when the rent for the half-year's possession after Martinmas 1856 is due; but he has neither disposed of, nor even reaped, any crop; and the conventional term of payment of that half-year's rent may be Martinmas 1857, or even Candlemas or Whitsunday 1858; by one of which terms he has certainly reaped, and ought to have disposed of, the crop of 1857. At each term of Whitsunday and Martinmas, therefore, there is due, legally, the half-year's rent for the possession during the term then ended. And at the same time, or later, as the case may be, there is usually due conventionally, or by agreement of parties, the half-year's rent for the possession during a term preceding that which has just ended. But the rent for the possession during the term preceding the purchaser's entry belongs to the seller; he was the owner of the lands during that term; and the statutory form, accordingly, gives the purchaser the rents falling due for the possession after his entry, according to the legal, and not the conventional, terms of payment. A purchaser, therefore, with entry at Martinmas 1856, does not draw the rents conventionally due at or after Whitsunday 1857, so far as these are in respect of the possession, up to, or preceding, Martinmas 1856, the date of the purchaser's entry. The purchaser has right to the rents legally due for the possession after the term of his entry, and no more. That is the fair and ordinary arrangement; and, when any alteration is to be made on it, you will keep in mind the necessity of showing explicitly the nature and extent of such alteration; as in dubio the usual arrangement will be presumed. And here it will be important to keep in view the peculiarities con- PASTURE AND nected with grass or pasture farms, or with farms consisting partly of ARABLE FARMS. pasture, partly of arable land. In such farms, the tenant usually enters to the houses and pasture land at Whitsunday, and to the arable land, if any, as there almost invariably is, at the separation of the corn crop from the ground, or Martinmas following. And it is held that at the Whitsunday, being the day of the entry to the houses and pasture, there is legally due half a year's rent. Independently, therefore, of stipulation or understanding to the contrary, a tenant entering to such lands at Whitsunday would be liable to pay half a year's rent on the day when he entered; and the seller, giving entry to the purchaser at the |