be observed that the witnesses do not merely attest the notary's signature, but the ceremony, and that they must subscribe each page of the instrument.1

Modern Method of Infeftment.-It is now unnecessary to proceed to the lands, or perform any ceremony, and infeftment is completed by presenting the warrant and other writings to a notary, who prepares and subscribes along with two witnesses an instrument of sasine, according to a form set forth in the schedule of the act.2 A form is also provided in the act, for the precept which is the authority for the sasine. When there is any error or defect, whether in the instrument or the recording of it, a new instrument may be taken and recorded. Precepts issuing from the Exchequer, for infeftment in Crown-holdings, were formerly addressed to the sheriffs, but are by this act addressed to a notary-public.5

Registration. The Register of Sasines and of Reversionsthat is, rights of reversion of landed property-was appointed in 1617, improved in 1672, and perfected in 1693.6 There is a principal register kept in Edinburgh, the rest of the country being divided into districts; and it is in the choice of the party to have the instrument recorded either in the General or the District Register. Volumes are issued from time to time from the General Register-house to the district recorders of sasines, along with each of which is a minute-book, in which are to be entered the contents of each deed recorded, with the date at which it was presented, &c. When the volume is filled, it is returned to the general register-house, along with the minute-book, a copy of the latter only being kept by the local registrar. Formerly instruments of sasine could only be recorded within sixty days after their date; they may now be recorded at any time before the death of the holder.7 A Precept from Chancery is however void, unless the sasine be recorded before the first term of Whitsunday or Martinmas posterior to its date, without prejudice to a new precept being issued. When a sasine is presented for registration, it is the duty of the keeper of the record to mark on it the date of presentation, and that date is held the date of recording.9 The date is the criterion of preference, so that if there is more than one sasine taken by different individuals, the one first entered in the register is preferable,

B. on C. T. 225.-28 & 9 Vict. c. 35, § 1. Ibid. § 5.- Ibid. § 4.Ibid. §6.-1617, c. 16. 1672, c. 16, § 32. 1693, c. 13 & 14.-7 8 & 9 Vict. e. 35, § 3. Ibid. § 6.- Ibid. § 3.

though it should be taken after the other. No erasure on the original instrument of sasine can be a subject of challenge, unless it is proved to have been made for a fraudulent purpose, or the record is found not to be conformable with the instrument as originally presented.2

SECT. 5.-Burgage Property.

Property holding burgage is held and conveyed by forms peculiar to itself, and more simple than those connected with other feudal property. It may be observed that all property within burgh is not Burgage, for there may be estates belonging to proprietors within the bounds of the burgh which the Charter of Erection did not interfere with, and the magistrates, as representing the community, may purchase and hold property in the same manner as individuals.

A Royal burgh holds directly of the crown. Formerly each burgess held personally of the crown, and paid duties directly to the Great Chamberlain; and when these duties came to be afterwards collected and paid over by the magistrates, the tenure continued the same. Hence, as every one holds of the same superior, there can be no sub-infeudation. Burgage property is held by the old tenure of Ward (see p. 52), obliging the vassal to watch and ward, and perform all other "services of burgh used and wont." It is not liable to the casualties of non-entry, relief, &c., on the death of the vassal (see p. 53), owing, it has been said, to the circumstance that the corporation is viewed as being itself the vassal.3 There is no sub-infeudation, and thus when the property changes hands, there is no precept of sasine for infefting the new holder. When there is a new investment, the magistrates, as commissioners for the crown, having received symbolical resignation of the holding, give it over to the new holder, or his attorney acting for him, by the symbols of earth and stone for ground, and hasp and staple for houses. The town-clerk acts as notary, narrating the resignation and the sasine in one deed, called an Instrument of Resignation and Sasine. This instrument, to constitute a preferable right, must be recorded in the register of sasines of the burgh by the town-clerk within sixty days.5 This method of giving and recording sasine in burgage holdings has been left untouched by the late act.6

1 1693, c. 13.-2 6 & 7 Wm. IV. c. 33.-3 Jur. St. i. 586.- B. on C. T. 133.—5 Jur. St. i. 604. B. on C. T. 134.—6 8 & 9 Vict. c. 35, § 7.

SECT. 6.-Title by Prescription.

Prescription, which will be found elsewhere discussed in as far as it extinguishes obligations, requires notice in connexion with the tenure of land rights. It does not, properly speaking, constitute a title, but it gives stability to a title which would otherwise be without foundation. It is founded on the possession of land for forty years, held continuously and uninterrupted by the person who pleads it, or by him and those through whom he holds his right. The possession must be on a charter and sasine preceding in date the commencement of the forty years, or upon an uninterrupted series of sasines proceeding upon Retours or Precepts of clare constat1 (see Part III. Chap. I. Sects. 6 & 7). The title must be of such a character that, supposing its foundation anterior to the commencement of the forty years to have been unexceptionable, it would be valid and complete. While all the proceedings relating to the title within the years of prescription must thus have been such as indicate an absolute bonâ fide right, the inquiry goes no farther, and it is irrelevant to prove, even from the titles themselves, that they have originally sprung from one who was incapable of giving a valid right.2 In one case a prescriptive title was sustained relative to coal, although originally it was excepted from the conveyance. Having been inserted in the subsequent titles, and possession having been enjoyed for forty years, the right to the coal was held to be undoubted." 3

Positive and Negative.—A distinction has been made between Positive and Negative Prescription, the former being the existence of the title and the possession for forty years in the person of the holder or his predecessors; the other the absence of possession during the same period on the part of the impugner. The existence of a title by the positive prescription, virtually presumes the negative prescription.* There are cases, however, in which the negative prescription may cut off a right to impugn a title before it has been fortified by the positive prescription. Thus where a party had been infeft within the years of prescription, on a title derived from an adjudication and sale prior to the commencement of the period, it was held that another party's right to challenge the adjudication and sale had prescribed.

The

11617, c. 12.- Napier's Commentaries on the Law of Prescription, 56. Buccleugh v. Cunynghame, 30th Nov. 1826.-3 Ibid. p. Lord Balgray in reference to Forbes v. Livingstone, 31st January 1822.- Napier, 98.5 Cubbison v. Hyslop, 29th Nov. 1837.

consideration of the negative prescription properly belongs to the extinction of obligations, where it will be viewed in connexion with those operations in favour of the party which may interrupt it, and those circumstances, such as minority, which may suspend it.

It is frequently one of the effects of prescription to enable one who might have been bound to hold by one description of title to hold by another, as where a series of heirs of entail have for forty years held under titles as absolute proprietors. It thus does not affect the prescription of one class of titles as against another, that the same line of persons would have been the holders whichever class of titles had been adopted; but it must appear clearly in the nature of the titles made up during the period of prescription in what capacity the owners have held.1

CHAPTER III.

SERVITUDES.

SECT. 1.-Their Nature.

SERVITUDES are divided into Personal, and Predial or Real. The former consist of pecuniary burdens on real property, as Terce, and Courtesy, and are considered in other parts of the work, see Part I. Chap. I. Sect. 11. The difference between the two is, that the former are rights or advantages held by individuals according to law or stipulation. The latter are rights and advantages held by one Tenement in respect of another, and so enjoyed by the owner or occupant. One of these, the servitude of Thirlage, having become a subject of importance in the law of landlord and tenant, is considered. under that head. With regard to the other predial servitudes, they may be considered as rules founded on law, on compact, or on long usage, defining the use which one is entitled to make of his property with respect to neighbouring tenements. The old commentators, putting predial and personal servitudes under one head, discuss them as a branch of the feudal law; the later practical application of the doctrines, however, and a late enactment which has given to

E. iii. 7, 6. B. vi. 2020.

sheriffs jurisdiction as to "the constitution or the exercise of real or predial servitudes,"1 have tended to make the more important parts of the subject a matter of personal right. Much of the abstruseness of the subject, as generally treated, has proceeded from the disposition of the Roman lawyers to carry their divisions and analogies beyond the range of practical necessity. Thus, the circumstance that a running stream keeps passing from high to low ground, was involved with the right which one proprietor has from contract to the use of a road through the grounds of another, by an ingenious analogy which represented the proprietor of the lower ground as under an obligation to receive the water from the higher. The tenement to which the benefit of a servitude is attached is called the Dominant, that to which the obligation is attached, the Servient.

SECT. 2.-Urban Servitudes.

These are so termed from their being connected with edifices. Those which have any relation to practice are as follows:

1. Oneris ferendi, or the obligation on a tenement which is under another to bear its weight. In this simple form, it is one of the servitudes which need hardly have been created, as it is rather an incident of the nature of certain property than an obligation of any kind. In the chief circumstance in which it is of practical importance, the servitude may be said to be on either side, for the proprietor of the upper tenement must not increase its weight, or its liability to endanger the lower, nor must the proprietor of the lower do any thing to endanger the stability of the upper.3 The proprietor of the Servient tenement is not bound to keep it in repair unless by special obligation. The proprietor of the Dominant tenement is entitled to repair the servient at his own expense.*

2. Eavesdrop, or Stillicidium, is a right to let the rain from a Dominant drop on a Servient tenement.5 From the improvements in building and draining, the subject is now one of minor importance. It has been specially decided that no right of property over the ground on which the water falls is conveyed by a right of eavesdrop, and that the feudal proprietor may do what he pleases with the area, so long as

11 & 2 Vict. c. 119, § 15.-E. ii. 9, 8.-3 Ibid. Young v. Cuddie, 24th February 1831. E. ́ii. 9, 8.— Ibid. 9.