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APPENDIX

CONTAINING

STATUTES, WITH NOTES

APPENDIX.

No. I.

1503, c. 77 (c. 22, ED. THOMSON).

Anent the exceptions proponed anent Widowes, in hindring

of them of their teirces.1

ITEM. It is statute and ordained, anent the exceptions proponed against widowes, persewand and followand their brieves of teirce, or the profite of their teirce, quhilk is ofttimes proponed against thay widowes, that they were not lauchful wives to the persones their husbandes, be quhome they follow their said teirce; That therefore, quhair the matrimonie was not accused in their life-times, and that the woman askand this teirce, beand repute and halden as his lauchful wife in his lifetime, sall be teirced, and bruik her teirce, but ony impediment or exceptions to be proponed against her, ay and quhil it be clearely decerned, and sentence given, that scho was not his lauchful wife, and that scho suld not have ane lauchful teirce therefore. See Ersk. 1. 6. 6; 2. 9. 50.

No. II.

1661, c. 32 (c. 244, ED. THOMSON).

Act concerning Heritable and Moveable Bonds.1

Our Soveraign Lord, with advice and consent of His Estates of Parliament, for many just and reasonable causes2 moving Him, Statutes and Ordains, That all Contracts and Obligations for Sums of money payable to parties at any time, made and dated since the sixteenth day of November, one thousand six hundred and fourty-one, or to be made in time coming, containing clauses for payment of Annual-rent and Profit, are, and shall be, holden and interpret to be Moveable

Bonds, except in these cases following; viz. That they bear an express obliegement to infeft or that they be conceived in favours of Heirs and Assignes, secluding Executors, in either of which cases, Ordains the Sums to be Heritable, and to pertain to the Heir; otherwayes to be confirmed by the Executor, and to appertain to the nearest of Kin, and to the Defunct's Executors and Legators, according to the Law aud practick of Moveables, Declaring alwayes, that all such Bonds, quoad fiscum,10 shall remain in the same condition as they were before the said sixteenth of November, one thousand six hundred and fourtyone, not to fall under the compass of single Escheat, nor shall any part thereof pertain to the Relict, jure relictae,11 where the Bonds are made to the Husband, nor to the Husband," jure mariti, where the Bonds are made to the Wife, unless the Relict, or Husband, have otherwayes right and interest thereto, Declaring nevertheless, that this provision shall no way prejudge Wife, nor Husband, and their Executors, of their respective Titles and interests to the by-gone Annual-rents of the said Bonds, resting before either of their deaths.

1 Supra, §§ 11, 56, 97. As to this statute, see Ersk. 2. 2. 10-13; Ross, Lect. i., 49; Kames, Elucidations, Art. 36, p. 298 (ed. 1800); Bell, Pr. § 1495; Duff, Treatise on Deeds, p. 6 et seqq.; Fraser, Husband and Wife, i. 717; Gray v. Walker, 11 March, 1859, 21 D. 709; Downie v. Downie's Trustees, 14 July, 1866, 4 M. 1067.

The preamble of the original Act, 1641, c. 57 (infra, note 4), explains that the provisions of law for younger children are scanty; that the generality of people, in lending their money, had no intention to disappoint their younger children; that their heirs profit by their ignorance; and that a number of orphan and fatherless children are disappointed of their natural portion, are brought to poverty and misery, and forced to become beggars, which is often found by pitiful experience; and therefore it enacts that all contracts and bonds for sums of money, though with the condition of payment of annual-rent or profit, shall pertain to the bairns and nearest of kin, unless sasine shall have followed in the lifetime of the creditor, or that executors are excluded or the bond contains an obligation to infeft.

3 The Act deals with the interest of the creditor only. Hence Lord Kames holds that bonds bearing interest are moveable quoad creditorem, but heritable quoad debitorem. Elucidations, p. 303.

This is made plain in the Titles Act of 1868-infra, p. 190, but it does not affect the present statute.

This statute is thus retrospective, and took effect as from 16 November, 1641. Its provisions were originally enacted by 1641, c. 57. The whole statutes from 1640 were rescinded at the Restoration, but the effect of the present statute is to put the Act of 1641 much in the same position as if it had been excepted from the rescission.

A moveable bond was that which was made to the creditor by simple bond, for payment of the money at a term, with a penalty, and did not contain obligement to infeft in an annualrent, nor to pay an annualrent to the creditor as well not infeft as infeft. (Hope, Minor Practicks, Tit. iii., § 35, p. 157; ed. 1734.)

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