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

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feffion, he may be compelled to renounce, or divert him-
felf in favour of the reverfer.
11. If the wadfetter be intitled by his right to enjoy
the rents without accounting, and if at the fame time
the reverfer be fubjeirted to the hazard of their deficien¬
cy, fuch contracts juftly declared ufurious ; and alfo in
all proper wadfets wherein any unreafonable advantage
has been taken of the debtor, the wadfetter muft, during
the not requifition of the fum lent, either quit his pof-
felfion to the debtor, upon his giving fecurity to pay the
intereft, or fubjeift himfelf to account for the fuplus-rents,
as in improper wadfets.
12. Infeftments of annualrent, the nature of which
has been explained, are aifo redeemable rights. A right
of annualrent does not carry the property of the lands,
but it creates a real nexus or burden upon the property,
for payment of the intereft or annualrent contained in the
right; and confequently, the bygone interefts due upon
it are debita fundi. The annualrenter may therefore
either infift in a real aftion for obtaining letters of poind¬
ing the ground, or fue the tenant in a perfonal atftion
towards the payment of his part intereft: And in a com¬
petition for thofe rents, the annualrenter’s preference will
not depend on his having ufed a poinding of the ground,
for his right was compleated by the feifin; and the power
of poinding the ground, arifing from that antecedent
right, is mera facultatis, and need not be exercifed, if
payment cansbe otherwife got. As it is only the intereft
of the futn lent which is a burden upon the lands, the
annualrenter, if he wants his principal fum, cannot re¬
cover it either by poinding or by a perfonal adtionagainft
the debtor’s tenants, but muft demand it from the debtor
himfelf, on his perfonal obligation in the bond, either by
requifition, or by a charge upon letters of horning, ac¬
cording as the right is drawn.
13. Rights of annualrent, being fervitudes upon the
property, and confequently confident with the right of
property in the debtor, may be extinguilhed without re-
fignation.
14. Infeftments in fecurity are another kind of re¬
deemable rights (now frequently ufed in place of rights
of annualrent) by which the receivers are infeft in the
lands themfelves, and not fimply in an annualrent forth
of them, for fecurity of the principal fums, intereft, and
penalty, contained in the rights. If an infeftment in fe¬
curity be granted to a creditor, he may thereupon enter
into the immediate pofleflion of the lands or annualrent
for his payment. They are extinguiftred as rights of an¬
nualrent.
15 All rights of annualrent, rights in fecurity, and
generally whatever conftitutes a real burden on the fee,
may be the ground of an adjudication, which is prefer¬
able to ail adjudications, or other diligences, intervening
between the date of the right and of the adjudication
deduced on it; not only for the principal fum contained
in the right, but alfo for the whole part intereft contained
in the adjudication. This preference arifes from the
nature of real debts, or debita fundi \ but in order to
obtain it for the intereft of the intereft accumulatedin the
adjudication, fuch adjudication muft proceed on a procefs
•of poinding the ground.
w.
Tit. 16. Of Servitudes.
Servitude is a burden afFedling lands, or other he-
Titable fubjefls, whereby the proprietor is either reftrain-
ed from the full ufe of what is his own, or is obliged to
fuffer another to do fomething upon it.' Servitudes are
either natural, legal, or conventional. Nature itfelf
may be (aid to conftitute a fervitude upon inferior tene¬
ments, whereby they muft receive the water that falls
from thofe that ftand on higher ground. Legal fervi¬
tudes are eftabiifhed by ftatute or cuftom, from confide-
rations of public policy; among which may be numbered
the.reftraints laid upon the proprietors of tenements with¬
in the city of Edinburgh. There is as great a variety
of conventional fervitudes, as there are ways by which
the exercife of property may be reftrained by padtion in
favour of another.
2. Conventional fervitudes are conftituted, either by
grant, where the will of the party burdened is exprefted
in writing, or by prefcription, where his confent is pre¬
fumed from his acquiefcence in the burden for 40 years,
A lervitude conftituted by writing, or grant, is not
effedtual againft the granter’s fingular fuccefibrs, unlefs
the grantee has been in the ufe or exercife of his right:
But they are valid againft the granter and his heirs, even
w'ithcut ufe. In fervitudes that may be acquired by pre¬
fcription, forty years exercife of the right is fuflicient,
without any title in writing, other than a charter and
feifin of the lands, to which the fervitude is claimed to
be due.
3. Servitudes conftituted by grant are not effedlual,
in a queftion with the fuperior of the tenement burdened
with the fervitude, unlels his confent be adhibited ; for
a fuperior cannot be hurt by his vaflal’s deed : But,
where the fervitude is acquired by prefcription, the con¬
fent of the fuperior, whofe right afforded him a good
title to interrupt, is implied. A fervitude by grant,
though followed only by a partial poffeflion, muft be go¬
verned, as to its extent, by the tenor of the grant; but
a fervitude by prefcription is limited by the meafure or
degree of the ufe had by him who prefcribes ; agreeably
to the maxim, iantum prafcriptum quantum poffejfum.
4. Servitudes are either predial or perfonal. Predial
fervitudes are burdens impofed upon one tenement, in
favour of another tenement. That to which the fervi¬
tude is due is called the dominant, and that which owes
it is called the fervient tenement. No perfon can have
right to a predial fervitude, if he is not proprietor of
fome dominant tenement that may have benefit by it;
for that right is annexed to a tenement, and fo cannot
pafs from one perfon to another, unlefs fome tenement
goes along with it.
5. Predial fervitudes are divided intfe rural fervitudes,
or of lands ; and urban fervitudes, or of honfes. The
rural fervitudes of the Romans were iter, atlus, via,
aqureduftus, aquahoufus, and jus pc.fccndi pecoris. Si¬
milar fervitudes may be conftituted with us, of a foot-
road, horfe road, cart-road, dams, and aquedutfs, water¬
ing of cattle, and pafturage. The right of a highway is
not a fervitude conftituted in favour of a particular tene¬
ment, but is a right common to all travellers. The care