BURDENS AFFECTING LAND.

In the preceding volume I have given examples of those deeds by which the feudal investiture is originally constituted, as well as of those necessary for constituting the title of the purchaser; and having there shown in what manner a right in land is established, the present volume shall be dedicated to the explanation of such forms as are used in creating burdens on that species of property. With this view, I shall divide the subject into three heads. I. Servitudes. II. Securities

CHAP. I.

OF SERVITUDES.

Conventional servitudes have been divided into positive and negative servitudes; the former giving to the dominant tenement, or to its proprietor, the use of the servient tenement to a certain extent, as in the case of a road, or of pasturage, or of thirlage; the latter restricting the power of the proprietor of the servient tenement in his use of that property, as where he is taken bound not to build. There is thus a very material distinction betwixt those two classes of servitudes; for while the one is an object of the senses, and cannot be concealed from the inquiries of a purchaser, the other may be easily overlooked. Hence, although our practice does not require, that evidence of the positive servitude should enter the record, we might have expected that this would have been thought necessary to the constitution of the negative servitude, since it appears to be so requisite for the safe transmission of landed property; yet so it is, that a

midst all our attention to the records, there is no such rule; and even negative servitudes, which shall be effectual against a purchaser, may be constituted by the mere expression of the will of the proprietor, without the aid of sasine, or without entering the public record.

The order in which I am to treat this subject is, 1. To give the forms by which the positive servitudes are established; 2. The forms by which the negative servitudes are established; and lastly, The form of the discharge of the servitude.

SECT. I. OF POSITIVE SERVITUDES.

1. THIRLAGE. The positive servitude to which I am first to direct your attention, is that of thirlage, which, increasing as the produce of the farm is increased, becomes, like Tithes, a tax on industry. The disadvantages attending a burden of this kind produced the Act 39. Geo. III. c. 55. (13th June 1799), by which a remedy is provided for the evil.

That act impowers either the proprietors of the lands astricted, or the proprietors of the

mill, to apply for having the thirlage commuted into an annual payment to the proprietor of the mill, in place of the multure formerly payable. The application is directed to be made to the Judge Ordinary by petition; the manner of calling those having interest is prescribed; and the parties having fully stated the nature and extent of the servitude on the one side, and on the other, with the claims of deduction, the Judge Ordinary, under the review of the Supreme Court, is directed to pronounce a judgment on the relevancy, and to prepare matters for going to a jury; which jury is to be called by an interlocutor of the Judge Ordinary. There must be at least 21 jurors called, and the qualification of a juror consists in his being an heritor or tenant of land, yielding a yearly rent of not less than L. 30 Sterling, or being an heritor and in possession of land of L. 30 Scots of valued rent within the county. The jurors attending on the day appointed, the assize is reduced to nine, by each party striking off one alternately, the proprietor of the mill beginning by striking off the first.

The Jury have to consider the application, the pleadings, the decree on the relevancy, and the evidence (which is directed to be ta ken in writing); and, from a due considera