Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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"feecomcs tffeflual upon his entry, the fupervening right
accruing in that cafe to the purchafer ; which is a rule
applicable to the alienation of all fubjefls not belonging
to the vender at th^time of the fale.
8. The feudal right, or, as it is called, invelliture,
is conflituted by charter and feifm. By the charter, we
underlfand that writing which contains the grant of the
feudal fubjedt to the vaffal, whether it be executed in the
proper form of a charter, or of a difpofition. Charters
by fubjed-fuperiors are granted, either, j. A me de
fuperiore meo, when they are to be holden, not of the
granter himfeif, but of his fuperior. This fort is called
a public holding, becaufe vaflals were in ancient times
publicly received in the fuperior’s court before the pares
curia or co-vaflals. Or, 2. De me, where the lands are
to be holden of the granter. Thefe were called fometimes
bafe rights, from has, lower: and fometimes private,
becaufe, before the ellablidiment of our records, they
were eafily concealed from third parties; the nature of
all which will be more fully explained. Tit. 14. An
original charter is that by which the lee is firft granted :
A charter by progrefs is a renewed difpofition of that
fee to the heir or afligney of the vaflal. All doubtful
claufes in charters by progrefs ought to be con (trued
agreeably to the original grant; and all claufes in the
original charter are underftood to be implied in the char¬
ters by progrefs, if there be no exprefs alteration.
.9. The firft claufe in an original charter, which follows
immediately after the name and defignation of the granter,
is the narrative or recital, which exprefles the caufes
indudtive of the grant. If the grant be.made for a va¬
luable confideration, it is faid to be onerous; if for love
and favour, gratuitous. In the difpofitive claufe of a
charter, the fubjefts made over, are defcribed either by
fpecial boundaries or march-ftones, (which is called a
bounding charter), or by fuch other charadters as may
fufficiently diftinguifh them. A charter regularly carries
right to no fubjedfs but what are contained in this claufe,
though they (hould be mentioned in fome other claufe of
the charter.
10. The claufe of ienendas (from its firft words, te-
nendas pradidas terras) exprefles the particular tenure
by which the lands are to be holden. The claufe of red¬
dendo (from the words, reddendo inde annuatim) fpeci-
fies the particular duty or fervice which the vaflal is to
pay or perform to the fuperior.
11. The claufe of warrandice is that by which, the
gramer obliges himfeif that the right conveyed (hall be
effedlual to the receiver. Warrandice is either perfonal
or real. Perfonal warrandice, where the granter is,only
bound perfonally, is either, 1. Simple, that he (hall
grant no deed in prejudice of the right; and this fort,
which is confined to future deeds, is. implied even in do¬
nations. 2. Warrandice from fadband deed, by which
t-he granter warrants that the right neither has-been, nor
{hall be hurt by any fadfof his. Of, 3. Abfolute war¬
randice contra ornnes mar tales, whereby the right is war¬
ranted againft all legal defedfs in it, which may carry it
off from the receiver, either wholly or in .part. Where
a fale of lands proceeds upon an onerons caufe, the grant-
«r is liable in abfolute warrandice, though no warraa.-
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dice be exprefied ; but in aflignations to debts of decrees^
no higher warrandice than from fadl and deed is implied*.
12. Gratuitous grants by the Crown imply no war¬
randice; and though warrandice fnould be exprefled, the
claufe is ineffedtual, from aprefumption, that it has crept in
by the negligence of the Crown’s officers. But where the
Crown makes a grant, not jure corona, but for an ade¬
quate price, the fovereign is in the fame cafe with his
fubjedls.
13. Abfolute warrandice, in cafe of evidtion, affords
an adtion to the grantee, againft the granter, for making
up to him all that he (hall have fuffered through thedefedi
of the right; and not (imply for his indemnification, by
the granter’s repayment of the price to him. But as
warrandice is penal, and confequently flrifti juris, it is
not eafily ptefumed, nor is it incurred from every light
fervitude that may affedf the fubjedt, far lefs does it ex¬
tend to burdens which may affedt the fubjedt pofterior to
the grant, nor to thofe impofedby public ftatute, whethes
before or after, unlefs fpecially warranted againft.
14. Real warrandice is either, t. Exprefs, whereby,
in fecurityof the lands principally conveyed, other lands,
called warrandice-lands, are alfo made over, to which
the receiver may have recoufe in cafe the principal lands
be evidted. Or, 2. Tacit, which is conftituted by the
exchange or excambion of one piece of ground with a-
nother ; for, if the lands exchanged are carried off from
either of the parties, the law itfelf, without any padtion,
gives that party immediate recourfe upon his own firft
lands, given in exchange for the lands evidted.
15. The chapter concludes with a precept of feifin,
which is the command of the fuperior granter of the right'
to his bailie, for giving feifin or pofleflion to the vaflal, or
his attorney, by delivering to him the proper fymbols.
Any perfon, whofe name may be inferted in the blank,
left in the precept for that purpofe, can execute the pre¬
cept as bailie; and whoever has the precept of feifin in
his hands, is prefumed to have a power of attorney
from the vaflal, for receiving pofleflion in his name.
16 A feifin is the inftrument or atte (ration of a notary,
that pofiefiion was adtually given by the fuperior or his
bailie, to the vaflal or his attorney ; which is confidered
as fo neceflary a folemnity, as not to be fuppliable, either
by a proof of natural pofleflion, or even of the fpecial fadt
that the vaffd was duly entered to the pofleflion by the
fuperior-’s bailie.
17. The fymbols, by which the delivery of poffeflioTr
is exprefled, are, for lands, earth and done; for rights
of annualrent payable forth of land, it is alfo earth and
(tone, with the addition of a penny money; for parfon-
age teinds, a Areaf of corn ; for jurifdidlions, the book
of the court; for patronages, a pfalm-book, and the
keys of the church; for fifhings, netand coble ; for mills,,
clap and happer, drc. The feifin muft be taken upon the
ground of the lands, except where there is a fpecial dif-
penfation in the charter from the Crown.
18. All feifins muft be regifired within fixty days aff
ter their date, either in the general regifter of feifins at
Edinburgh, or in the regifter of the particular (hire ap¬
pointed by theadf 1617; which, it muft be obferved, is nor, ,
in every cafe, thelhire within which the lands lie. Bur-