may be one or more superiors. So early as the year 1290, a statute was passed in England prohibiting vassals from feuing out their lands to be held under themselves; but permitting them to dispose of their rights by putting the purchaser in their own place, and letting him hold of the same Superior. From that period no more Superiorities were created in England, for if a man holding simply of the crown disposed of his land, he did so by relinquishing all connexion with it, and putting another person in his place. An act for a similar purpose is said to have been passed by the parliament of Scotland; but if it was so, it was not long obeyed, as the practice of Scotland has always permitted sub-infeudation. Land may therefore, with us, be transferred, either by putting the person to whom it is transferred in the situation of the person who transfers it, or by the latter still keeping up a connexion with the property, and allowing the new holder to enjoy it with that reservation. The latter form is called "constituting a Fee," for by it a new right of property is brought into existence. As all land rights either have been or are presumed in law to have been brought into existence in this manner, the method of constituting a fee may be discussed on the present occasion, that of transferring it belonging to another place.

SECT. 2.-Nature and Constitution of a Fee.

Of old, a Fee, or the right which a Lord might give his vassal in connexion with the lands over which he held authority, was granted merely during the life of the Vassal, and for military service. Hence, as there would naturally be a choice of the person on whom it was bestowed, the son did not, as a matter of routine, succeed to his father, and the vassal could not sell or otherwise dispose of his fee without the consent of the superior. When the fee became hereditary, as a minor could not fulfil the warlike duties required from the vassal, the superior took possession of it during his minority. The value of this right, on the part of the superior, was afterwards commuted into an annual payment, in which case the fee was said to be held in Taxed Ward. While the military or Ward tenure existed, the vassal might incur Recognition, or a forfeiture of his estate to his superior, under certain circumstances. The superior was entitled to a sum proportionate to the value of the estate, called the Avail of Marriage, exigible when an unmarried vassal succeeded. If the superior named a wife for his vassal, and the vassal refusing her married another woman, he became liable in what was termed

1 18 Ed. I. c. 1.- - Bell on Completing Titles,-- Introduction.

the Double Avail of marriage. In 1747, the ward or military tenure was abolished as a system dangerous to the public tranquillity, and such fees as were held ward of the crown were converted into Blench holdings, and those held of subjects were converted into Feu holdings, for which a yearly sum was made payable to the superiors as a recompense for such of their casualties as were abolished.1 It is necessary to explain these two sorts of fees, the only ones which now exist.

Feu-farm and Blench Holdings.-By the principle of the feudal system, it was impossible for any one to give an estate to another in full property, and without any dependence on a superior. To evade these limitations of the commerce in land, and create estates as nearly free as possible, fees were granted to be held on conditions merely nominal, such as the annual payment of a penny, a peppercorn, &c. These were termed Blench holdings. Feu-farm holdings are the ordinary tenures of the present day. Like Soccage in England, such a fee is held for a valuable consideration instead of warlike services, and is generally granted as an ordinary commercial transaction. Another species of tenure called Burgage tenure will be afterwards explained. (See below Sect. 5.)

Casualties. It will be perceived that by these several arrangements there were certain advantages which accrued to a superior, not continuously or at regular intervals, but as the result of incidental circumstances. These were termed Casualties of Superiority. There is at least one casualty of superiority still in existence and operation. It was mentioned that in military holdings, the superior was entitled to hold the fee, or to be paid an annual sum instead of it during the minority of the vassal heir. In the same manner in other holdings, if the heir did not renew the investiture immediately on his ancestor's death, the superior could enter on the fee till he did so. This was commuted into a tax, which the heir had to pay from the period of his ancestor's death, till he is cited by the superior in an action called "An Action of Declarator of Non-entry." The non-entry duties which are demanded by this action are limited to the "Retour Duties." 112 The lands which held ward of the crown, and now hold blench, pay one per cent. of the valued rent as nonentry duty.3 When lands are held feu, the non-entry duties consist of the yearly feu-duty, which the superior is entitled to otherwise, so that in that instance the casualty is no additional burden. From the moment of citation, however, the

120 Geo. II. c. 50.-2 E. ii. 5, 29, et seq. Jur. St. i. 451, et seq. iii. 186.3 20 Geo. II. c. 50, § 2. S. H. S. ii. 193.

non-entry duties are chargeable at the full rent of the fee, up to the time when the heir shall enter. Where the vassal enters himself heir in the regular manner, he has to pay a casualty to the superior, called "relief," which came into existence in the form of a composition for relieving the fee out of the hands of the superior.2 A casualty of a somewhat similar nature generally falls to the superior on the entry of a purchaser when the fee is sold, but this will be explained below. There are other casualties, chiefly antiquated or of merely partial and occasional incidence, which need not be explained.

SECT. 3.-Feu-charter.

The deed by which a fee is brought into existence, or by which the superior authorizes a person to hold lands of him as his vassal, and entitles the vassal to be put in personal possession of such lands, is called a Feu-charter. It consists in general of the following clauses. 1. The Narrative Clause, containing the names and designations of the parties correctly set forth, which is immediately followed by, 2. The Cause of Granting, generally a sum of money, and a feuduty either real or nominal. 3. The Dispositive Clause, which states that the lands are transferred from the granter and his heirs to the vassal and "his heirs and successors," or to the vassal and any particular series of heirs. The lands are in this clause accurately and minutely described. 4. The Tenendas, mentioning the kind of feudal tenure by which the lands are to be held, which is generally feu-farm. 5. The Reddendo, which fixes the sum to be given as feu-duty or otherwise, and generally the sum to be paid instead of casualties. (See the preceding Section.) 6. Clause of Warrandice, which, having reference to the fee as a mere object of commerce, may better be considered under the subject of the sale of a fee. 7. Assignation to the Title-deeds and to the Rents, a temporary right to enable the vassal to enjoy the property, until he makes his right real and exclusive by the process of infeftment to be afterwards described. 8. Warrandice of the Assignation to the Title-deeds and Rents. 9. Clause of Registration, a clause common to most descriptions of deeds. A feu-charter can only be registered for preservation, and only in the books of the Court of Session. 10. Precept of Sasine, by which the superior empowers the vassal to be infeft. The form of this clause is now provided for by act of parliament.3 The nature of this ceremony will be explained

'S. H. S. ii. 194.-2 Ibid. 196.-3 8 & 9 Vict. c. 35, § 5.

in the next section. The last clause is the Testing Clause.*1 It is usual to have a clause relieving the vassal of all arrears of public burdens.

When the crown is superior, and a charter is given, renewing the investiture in some new holder, the clauses are of a similar character, but the charter has to pass through certain forms, to the end that it may be revised by the judge acting in Exchequer; a duty which was performed by the Barons in the old Exchequer Court. The clauses examined in the Revision are the Dispositive, for the purpose of checking any attempt to enlarge the grant; and the Tenendas and Reddendo, that the tenure may not be altered, or the services reduced. The revisal and authority to proceed with the investiture are certified by a memorandum called a Signature.

SECT. 4.-Infeftment and Registration.

A Charter constituting a fee, or a Disposition conveying one after it is constituted, is said to be but a mere personal right. In as far as the granter is personally concerned, he is liable to an action to implement what he has done, by letting the vassal or purchaser take possession of the property; the latter, however, has not got a "Real right," which, like possession in purchased moveables, makes him proprietor, notwithstanding any other bargains which the seller may have entered into concerning them. As land cannot be delivered into the hand like moveables, a symbolical process has been invented, for declaring that real and personal possession is taken of it, and the person who first accomplishes this process has the best right to the feu, although his title may be later in date than another. So, if one has got a feucharter as above, and another person has afterwads obtained a similar charter, in which he is the first infeft, his right will preclude that of the obtainer of the first charter.

Formerly the superior transferred the lands to the vassal, by attending on the ground and giving him possession in presence of the pares curice, or peers of his court, viz. the other vassals, who formed a kind of an assize for attesting all transactions connected with the lordship. Afterwards it was the practice for the superior to give directions to an officer of his court to make the investiture. When it became customary for the superior to oblige himself by a charter to

As to the Testing of Deeds, see Part IV. Chap. II. § 4.-1 Jur. St. i.

invest his vassal, he did so in a separate deed, and thus there were two documents, the charter and the precept of sasine, which were afterwards united.1

Infeftment on the ground. In after-times, when land became a subject of commerce, and the connexion between superior and vassal was that of buyer and seller, these important acts of investiture became mere ceremonies, which down to the late alteration in the law were however performed on the ground. It may be a useful introduction to the character and effect of the Infeftment, which is still a part of the system of Land titles, to describe the method in which the ceremony was performed anterior to the act of 1845. The law-agent of the party who had procured the charter might act as the party's Attorney, or if he were a Notary-public, he might act in the latter capacity, choosing some other person to act as attorney. He named a person to represent the Bailie or officer of the superior, and two persons to be witnesses of the ceremony. The whole party repaired to the ground, and there, the attorney acting for the vassal, produced the charter to the bailie, who desired the notary-public to read it. On its being read, the attorney required the bailie to obey the superior's precept, and give the vassal sasine in accordance with it. The bailie did se by delivering certain symbols into the hands of the attorney, according to the nature of the property, viz.:-For Feuholdings, earth and stone of the ground. For Teinds, or Tithes, a handful of grass and corn. For Annual-rents out of lands, earth and stone with a penny money. For Mills, clap and happer. For Fishings, net and coble. For a Patronage, a psalm book or Bible, and the keys of the church, and for Burgage subjects (see below), earth and stone of the ground, and the hasp and staple of the house-door. Seisin having thus been given, the attorney took instruments in the hands of the notary by giving him a piece of money, and called on him to prepare an instrument narrating the ceremony. It is understood that during the earlier ages of the feudal system, the fact of infeftment having been given was left to the recollection of the pares curice or co-vassals. is now certified by a notary-public and two witnesses, and, before the late change, was incorporated in a long and formal instrument, descriptive of the taking of the infeftment, and of the authority under which it was taken. It has to

It

1 See Cragii Jus Feudale, lib. ii. Dieg. ii. Rosse's Lectures, vol. ii.— 2 R. L. ii. 178, et seq. B. on C. T. 188. Jur. St. i. 24.