'. Mmmm^iaSiSSSim (SnrnpU ICam irtinnl SJihrarg Digitized by Microsoft® 408 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archivg..p/j(d^tay^cu31924021758408 Digitized by Microsoft® MANUAL OF CONVEYANCING. Digitized by Microsoft® ■lOHS BAXTEl), PEINTF.H, ELDER STEEET, EDTHErHGH. Digitized by Microsoft® MANUAL OF CONVEYANCING THE FORM OF EXAMINATIONS EMEKAOING BOTH PERSONAL AND HERITABLE RIGHTS BY THE LATE JOHN HENDEY, W.S. SECOND EDITION REVISED BY JOHN T. MOWBKAY, W.S. gat tte %\.$t of ^tutote. EDINBUEGH . BELL & BRADFUTE 12 BANK STEEET. jvi D c ( ; (' li X V 1 1. Digitized by Microsoft® Digitized by Microsoft® PEEFACE TO THE SECOND EDITION, In preparing for publication the present Edition of the late Mr Hendry's " Manual of Conveyancing," the text, except in a very few instances, which are mentioned where they occur, has been printed as in the former one — the additions which were thought necessary, in consequence of decisions of the Court or of statutory changes in the law, being made in separate notes. In reprinting the original notes of authorities, references to the correspond- ing passages in the iifth edition of Professor Bell's Com- mentaries and in the third edition of Professor Menzies' Lectures have been added (within parentheses), which may be found useful ; and the numbers of the sections of Mr Dickson's Treatise on the Law of Evidence (second edi- tion) have been substituted for the references to the volume and page. Wherever Professor Bell's Commentaries are cited in the additional notes, the reference is to the fifth edition. In connection with this part of the work, I have much pleasure in acknowledging the valuable assistance which I have received from my friend Mr Charles Kam- pini, Advocate, who compared and corrected the original Digitized by Microsoft® VI PREFACE TO SECOND EDITION. notes of autliorites, and added the references to the third edition of Professor Menzies' Lectures. In the preface to the first edition of the work, the Au- thor observed that it was " by no means intended to super- sede the necessary labour of reading up the decisions and text books from which it is compiled ;" and, while desiring to impress on all students the importance of that observa- tion, I would add, that in reading the authorities, they should go beyond the mere facts of the cases, and endea- vour to extract the principles on which the rules applied to them rest, as the only way of making them available as guides in practice. I venture further to suggest, 1st, that in studying the system of Feudal Titles and Convey- ancing, they should trace it through its whole course, and that they should not only master the principles on which it was based, and which still regulate it, but should also make themselves familiar with the styles and forms in which those principles were, previously to the recent sta- tutory changes, embodied and applied, as being at once an interesting subject of inquiry and the best, if not the only, way of acquiring a thorough knowledge and understand- ing of the present system of deeds and writs, so as success- fully to adapt them to the various cases that occur in practice ; and, 2d, that while, to enable them to judge of the legal import and effect of every deed that may come before them, they should endeavour to make themselves acquainted with all the rules and authorities as to the con- struction of deeds, not omitting the interpretation that has been put on obscure and ambiguous language found in them, they should ever remember that the great aim and Digitized by Microsoft® PREFACE TO SECOND EDITION. YU object of the Conveyancer in the framing of deeds should be to express clearly and aptly the intention of the grantor, and thereby as far as possible prevent questions regarding them. For this purpose more or less care will be re- quired, according as the objects and provisions of the deed are more or less extensive and complicated or dependent on contingencies ; but with a due amount of professional skill, the use of a distinct and natural style of phraseology, and, where necessary, of appropriate technical language, the object may generally be attained, I am indebted to Mr A. Ellison Eoss, S.S.G., of the Auditor's OflSce, for the preparation of the Index. I cannot conclude without expressing my admiration of the ability, industry, and great extent of information displayed in the " Manual," and my regret that the Author, who was so early cut off, just when he seemed to be enter- ing on a successful professional career, had not lived him- self to undertake the duty which I have endeavoured to discharge, of preparing the present edition for the press. J. T. M. Edinburgh, 24:th November 1866. Digitized by Microsoft® Digitized by Microsoft® ♦ * % ALEXANDER MONTGOMERIE BELL, ESQUIRE, WKITBE TO THE 6I0NET, PBOFEBSOE OF CONVEYANCING IN THE UNIVEEBITY OF EDINBCKGH, THIS MANUAL, IN TOKEN OF KESPECT AND GRATITUDE, IS, BY FEB9II8BION, INSCRIBED. Digitized by Microsoft® Digitized by Microsoft® PREFACE TO THE FIRST EDITION. This Maniial consists of the notes and memoranda, in an arranged and extended form, made by the author last session in preparing for the competitive examinations in the Conveyancing Class of the Edinburgh University ; and, although it is by no means intended to supersede the ne- cessary labour of reading up the decisions and text books from which it is compiled, the hope is entertained that it will be found a useful auxiliary to the student in prosecut- ing his studies, and in preparing for the class examina- tions. In the use of the book, the student is recommended to have it before him from day to day during the Course, altering it in conformity with the latest decisions or sta- tutes ; and, at the same time, carefully correcting its errors and supplying its defects. The benefits resulting from that excellent system of examination matured in the Conveyancing Class by the late Professor Menzies, and successfully carried on by his successor, Professor Bell, can scarcely be overrated ; for, besides affording the students the important advantage of individual communication with the professor, the examina- Digitized by Microsoft® PKEFACE. tions impose the necessity of close and careful study, and stimulate a degree of industry and rivalry which would be wanting if the professor were to content himself with simply reading his Lectures. It was the author's desire of still further increasing the interest of students in these examinations that has led to the publication of this volume ; and on that account he would venture to bespeak for it an indulgent reception. Edinburgh, December 1859. Digitized by Microsoft® CONTENTS, Part I. — Deeds in General. Page Solemnities of Deeds,' . . . , .1 Privileged Writings,' . . . 18 Delivery of Deeds, . . . . .27 Capacity of Parties to make and receive Deeds : — Minors, . ... 33 Married Women, . . . . 43 Insane Persons, &c., . 52 Unlawful Contracts, . . 55 Effect of Error, Force or Fraud on Deeds, 66 Homologation and Rei Interventus, , 71 Stamps, ... 78 Clauses common to most Deeds : — Narrative, . ... 87 Clause of Warrandice, . . 88 Clause of Eegistration, . 94 Testing Clause, . . 100 Blank Writs, . . 101 Part II. — Deeds relating to Personal Eights. Personal Bond, ...... 108 Cautionary Obligations,^ . .122 Septennial Limitation of Cautionary Obligations,^ . 132 Bond of Credit, &c.,2 . . . .135 And Addenda, Nos. 1, 2, 3, and 4, ^ /j _ ^^ 5 Digitized by Microsoft® XIV CONTENTS. Pagh Transmission of Personal Eights, 142 Discharges, and Deeds operating Discharge, 158 Bills and Notes,' . 167 Personal Diligence : — Execution against the Person, 193 Poinding, . 201 Arrestment, 207 Indenture, 214 Suhmission, 216 Contract of Copartnery, 230 Jloveable real rights, and Deeds relating to Ships, 248 Factory, 252 Part III. — Deeds relating to Heritable Eights. The Feudal System, Casualties of Superiority, &c.,^ 255 Original Charter, . 265 Instrument of Sasine, 292 Missives of Sale, Progress of Titles, Searches of Incum- brances, Ersk., 1, 7, 16. 599. " Fraser'3 Pers. Eel., 2, 204. (p) The case of "White, here referred to, was an application, not hy a tutor-nominate, but hy a father as tutor and administrator-in-law of his son ; but the principle is the same. The judges in White's case were not unani- mous, particularly with regard to the alternative application for power to borrow, which was included in the petition. This power had been granted in a previous case to tutors-nominate ; Bellamy or Copland, 30th Nov. 1854, 17 D., 115 ; and power to sell had been granted to a tutor-nominate ; Mac- kenzie, supra, p. 38, note 3. It is to be kept in view, also, with reference to the principle stated, that the power of either selling or borrowing is one which tutors cannot exercise without judicial authority. See supra, 75 (1). (r) This is the rule as to the inherent powers of tutors ; but in Morrison, 11th Dec. 1857, 20 D., 276, the Court authorised a, factor for a minor to grant leases for nineteen years of a pro indiviso property, and to rebuild steading, &c., though the other joint proprietor refused to consent. In Pear- son, 6th June 1865, 3 M'P., 883, a factor loco tutoris was authorised to extend a lease for a year, though his office was to expire before the commencement of that year. (s) Leases, however, like sales by minors, would be liable to challenge on the ground of lesion. Digitized by Microsoft® 40 CAPACITY OF PARTIES. 79. Can persons in minority make deeds of settlement moHis causa ? A pupil cannot execute a deed of settlement either of his heritage or moveables. A minor pules may, without consent of his curators, test on his moveable estate, however valuable, except with respect to such portions of it as are held subject to express or implied conditions not to alter. But he cannot make a settle- ment conveying his heritage.^(i) 80. What is the effect of a settlement of heritage executed in minority, the granter having attained majority and survived the anni utiles f State the reason. The settlement is reducible and will not be held to be tacitly homologated ; the ground of reduction being, not minority and lesion, but that the granter had no power or capacity to grant such a deed.^ 81. What is the quadriennium utile? The quadriennium utile is the space of four years which the law indulges to a minor " after his perfect age, within which he can sue for the reduction of any deed he may have granted to his own prejudice while he was yet a minor, that so he may have a reason- able time from that period in which he is first presumed to have the exercise of reason, to consider with himself what deeds grant- ed by him in his minority are truly hurtful to him."^ 82. A minor, with consent of his father, executes two gratui- tous conveyances, the one in favour of his father, and the other in favour of his uncle ; How long does his right of challenging these deeds subsist ? 1 Ersk., 1, 7, 33 ; M'CuUoch, M., = M'Farlane v. Hartley, aSd May 8965 ; Yorkston, M., 8950. 1811 ; Fraser Pers. Eel., 2, 179.(m) ^ Ersk., 1, 7, 35. [t) See as to a minor'e powers with regard to settlement of heritage, Cunynghame, M., 8966, where it was found that he could not dispone heritage mortis causa even with consent of his curators. The cases of M'Culloch and Yorkston, cited, involved questions of the right of the parties to defeat sub- stitutions in deeds under which they themselves had succeeded. ((() Hume's Session Papers, " Summer 1811," No. 19. Digitized by Microsoft® CAPACITY OF PARTIES. 41 As no curator can be auctor in rem suam, the conveyance in favour of the father is to be regarded as the deed of the minor alone, without the concurrence of his curator. It is therefore null ipso jure, and may be challenged at any time within forty years ; the ground of reduction being, not the privilege of minor- ity, but a right to set aside a deed which has never been validly executed. '(a;) (2) The conveyance in favour of the minor's uncle must be challenged within the quadriennium utile; the grantee being a stranger, and the deed having been granted by the minor with the concurrence of his curator.(y) 83. A minor having curators, without their consent grants a bond for sums expended in his maintenance and edu- cation ; Is the bond valid? State the principle. The bond is valid ; because the money was in rem versum of the minor ; the principle being, that although deeds granted by minors having curators, without their consent are null, yet this is a nullity pleadable only against injury ; and where the deed is for the benefit of the minor, or that which he got for it was pro- fitably applied for his use, the nullity (z) cannot be pleaded.^ ^Ersk., 1, 7, 19; FraserDora.Rel., '^ Harkness, 20th June 1833, 11 2, 241 ; Manuel, 15th Janiiary 1863, S., 760 ; Bruce, 28d Deo. 1854, 17 15 D., 284. D., 265. (x) There is a decision (Bannatyne, M., 8983) where an assignation by a son to his father, not having been challenged within the quadriennium utile, was sustained ; but the circumstances are so special that it can hardly be said to conflict with the other cases cited, in conformity with which see M'Kenzie, M., 8959 ; Thomson, M., 8935. (y) On this principle, a distinction should perhaps be taken between uncles and uncles in affinity, the former being held to be conjunct (Tar- persie, M., 900), and the latter not (Elibank, M., 12569). In Manuel, cited above, the deed was in favour of an uncle consanguinean ; but the ground of reduction was that the bond was for the father's behoof, which was held to infer nullity, and therefore to be pleadable though the anni utiles had ex- pired. The rule in the text is therefore not to be taken absolutely. (z) It is perhaps hardly correct to describe the ground of challenge re- ferred to as a nullity. The rule that deeds by a minor having curators, without their consent, are null is not absolute, and the necessity for reduc- tion is not a criterion of what deeds are or are not null. Digitized by Microsoft® 42 CAPACITY OF PARTIES. 84. State exceptions to the rale, that a minor is entitled to be restored against hurtful deeds ? A minor cannot be restored against deeds although hurtful (1) which are granted in the course of trade, the transaction being mercantile ; or in the exercise of an employment by which he gains his livelihood ; '■ and (2) when he represents himself as major, and thereby deceives the party with whom he deals.^ (3) It is doubtful whether restitution be competent against a minor.' 85. A, in minority, grants in favour of B two hurtful con- veyances, the one of personal, and the other of heri- table property ; and B, after recording the latter con- veyance in the register of sasines, assigns, for a full price, both conveyances to C, who is ignorant that A was in minority when he granted the deeds. Is A entitled to be restored against these deeds in the hands of C ? State the reason. A is entitled to be restored against the conveyance of the personal property ; because it is a general rule in personal rights that every exception is good against an onerous purchaser which is good against the original creditor. But he is not entitled to restitution against the recorded conveyance of the heritable pro- perty ; because real rights completed by registration in the person of the original creditor, and acquired by an onerous pm-chaser on the faith of the records, are secure against reduction, unless the right has been rendered litigious by action prior to the purchase.* 86. Are bills granted by curators alone, without the concur- rence or knowledge of the minor, relative to ordinary matters of administration, vahd items of charge against the latter in accounting with his curatore ? State the reason. Yes ; because the meaning of the rule requiring the minor's concurrence to every transaction is, " that no solemn or important obligation can be undertaken, such as granting a bond, without the concurrence of both, but not that trifling and unimportant > Ersk., 1, 1, 38; Craig, M., 9035; « Ersk., 1, 7, 40. Heddel, 5th June 1810, F.O. * Ersk., ib. ' Sutherland, 19th Jan. 1825, 3 S., 449. Digitized by Microsoft® CAPACITY OF PARTIES. 43 transactions, such as the contraction and payment of ordinary debts, require to be sanctioned by the same formality." ^ 87. Is it necessary, in applications under the Entail Amend- ment Act, that tutors ad lites be appointed to pupils who have tutors-at-law ? State the reason. Yes ; because the Entail Amendment Act confers more exten- sive powers than tutors have at common law, such powers being necessary to carry out the purposes of the Act. (2.) Married Women. 88. Distinguish between the jus mariti and the husband's right of administration. (1) The jus mariti gives the husband an absolute personal right to the moveable property belonging to the wife at the mar- riage, or which shall be acquired by her during its subsistence, the same being transferred to him by the assignation implied in the marriage. (2) The husband's right of administration is derived from his oifice of curator, as guardian of his wife's person and property. It entitles him to levy the rents of her heritable estate, and prevents her disposing of her property, whether heritable or moveable, without his consent. ^(a) > Stark V. Tennant, 2d July 1846, ^ Ersk., 1, 6, 13-19 and 20 ; Men- 8 D., lWl,p. Lord Jeffrey, in fin. zies Lect., 36 (88). (a) By 24 and. 25 Vict., c. 86, I 16, it is provided that " When a married woman succeeds to property, or acquires right to it by donation, bequest, or any other means than by the exercise of her own industry, the husband, or his creditors, or any other person claiming under or through him, shall not be entitled to claim the same as falling within the communio bonorum or under the jus mariti or husband's right of administration, except on the condition of making therefrom a reasonable provision for the support and maintenance of the wife, if a claim therefor be made on her behalf ; and in the event of dispute as to the amount of the provision to be made," the same shall be settled by Court of Session in an ordinary action, according to circumstances, previous provisions secured, and separate property, if any ; but such claim must be made before the husband or his assignee or disponee shall have obtained complete possession of the property, or before a creditor has done complete diligence against it by adjudication or arrestment and forthcoming or poinding and sale. Digitized by Microsoft® 44 CAPACITY OF PABTIES. 89. Whether is the husband's right to the wife's moveable estate derived from his jus mariti or his right of ad- ministration ? State the reason. The husband's right to the wife's moveable estate is derived from the jus mariti in virtue of the assignation implied in the marriage ; because any moveable subject which, after the wife's death, may be discovered to have belonged to her, falls to the husband, which it could not do if his right were barely that of administration, terminating like other curatorial rights by the death of the party. ^ 90. What subjects belonging to the wife do not fall under the jus mariti f (1) The wife's heritable estate ; but the husband has right to the rents and interest. (2) Personal bonds, after the term of payment, if they bear interest. (3) Bonds with a clause of infeftment. (4) Eights having a tract of future time. (5) The price of the wife's land sold, being a surrogatum for the lands. (6) The vnfe's alimentary provisions. (7) The wife's paraphernalia and peculium? 91. What is the effect of a personal obligation by a married woman ? State the principle. A personal obligation by a married woman is null ;(6) on the > Ersk., 1, 6, 13. « gell's Prin., 1549, et seq. (6) According to two cases, to be immediately noticed, the rule is here laid down too absolutely, and should rather be stated thus : — " The obliga- tion of a married woman is of no legal effect if she, or those in her right, plead that nuUity," and not "that it is of itself absolutely incapable of affording a good prima facie ground of action;" per Lord FuUerton in Thomson or Hunter, 11th Feb. 1840, 2 D., 564. In that case a, decree of adjudication led on a bill of exchange was sustained (but only as a security, no feudal title having been made up), though it appeared ex facie of the bill, and decrees of constitution and adjudication, that the bill was granted by a married woman. The heir against whom the proceedings were taken had renounced the succession, and possession for seventy years had followed Digitized by Microsoft® CAPACITY OF PARTIES. 45 principle (1) of protecting wives from imposition ; and (2) that her person, being sunk in that of her husband, is not a proper subject of obligation.^ 92. What exceptions have been admitted to the rule, that a wife is incapable of contracting a personal obligation ? (1) The wife's personal obligation for money in rem versum, may warrant diligence against her separate estate, but not against her person.^ (2) During separation, legal or voluntary, the wife's personal obligations are effectual against a fund settled by the husband for her maintenance. ^(c) (3) When the husband is abroad, and the wife carries on a separate trade, her obligations may warrant diligence even against her person.* (4) With consent of her husband, she may grant mandates and other deeds relative to her separate property and obligations to sell her heritable estate, but not to the effect of binding her person.^ (5) The wife's obligation as prmposita is effectual, but only against her husband. ^ (6) She is bound to indemnify for damage occasioned by her delict.' 1 Ersk., 1, 6, 25. * Chiirnside, M., 6082; Orme. 30th •"Bell's Prin., 1612, and cases Nov. 1833, 12 S., 149. cited. = Bell's Prin., 1612. ' Bell's Prin., 1612 ; Menzies Lect., » Bell's Prin., 1618. 38 (38). ' Bell's Prin., ib. before the reduction was raised. In delivering his opinion, Lord FuUerton referred to Watson v. Bnice, 19th July 1672, M., 5964 and 8537, where a wife having become cautioner for her husband, he granted an assignation to a third party in relief of an obligation undertaken by him and of that by the wife, and she having sued the assignee for her relief, he pleaded that her obligation was null, and therefore there was quoad her no debt to de- mand relief of; but the Lords found "that the pursuer might forbear to make use of her privilege as a wife, and insist for her relief as a cautioner." (c) During the subsistence of an order of protection, made and intimated under " The Conjugal Eights (Scotland) Amendment Act, 1861 " (24 and 25 Vict., c. 86), a wife may contract obligations and sue and be sued as if she were not mairried. Some of the exceptions stated in the answer can hardly be said to be cases of a wife contracting a personal obligation. Digitized by Microsoft® 46 CAPACITY OF PARTIES. 93. May a married woman, with or without the consent of her hushand, validly grant a bond to take effect after her death ? It is laid down by Erskine ^ that a married woman may, even without the consent of her husband, become bound for a sum of money in the form of a deed, inter vivos, if it be not to take effect till after her death ; and the same doctrine is stated in the author- ities cited infra.' But it was strongly impugned by several of the consulted judges in the late case of Miller v. Milne's Trustees,'' in which it was stated by Lord Ivory that the obligations in question are such "as no married woman can contract without the consent of her husband, as curator, or could contract even with his consent. If the personal obligation itself is a nullity, it makes no difference that there is morata solutio. But it is said that the case of Col- quhoun ■* draws a distinction betwixt an obligation in general terms, and an obligation which is not prestable until the death of the husband, on the ground that, in the latter case, the husband's interest is not affected. I do not think that the principle which regulates the personal obligation of a married woman depends up- on the interest of the husband at all. The jjrinciple, as laid down in all the authorities, is, that the obligation is an absolute nullity ; - that the person of the wife is sunk in that of the husband, and cannot maintain a personal obligation, not merely so far as it might subject her to personal diligence, but even to the effect of attaching her estate. "(d) 1 Ersk., 1, 6, 28. ' Miller, 3d Feb. 1859, 21 D., 377, = Bell's Prin., 1613 ; More's Notes 31 Jur., 209. to Stair, 18 (13) ; Menzies Lect., 38 * Colquhoun, M., 5973. (39). (d) On the other hand, the Lord President (M'Neill) said— "I still en- tertain my old opinion, that it was competent for Mrs Milne to enter into that obligation, and I formed and hold that opinion on the authority of nearly all our institutional writers. I find it in Erskine and Bell, and I think it is to be found in Professor More's edition of Stair, and I find that the doctrine was taught from the Chair of Conveyancing ; in short, that for a century back it has been treated as part of the settled law of the country." It may be observed that this case was sent by the First Division to the rest of the Court for opinion, and that both the Lord President and Lord Ivory observed that the question of the competency of such an obligation had been rather left out of view by the consulted judges, the Lord President stating Digitized by Microsoft® CAPACITY OF PARTIES. 47 94. A married woman dispones her heritage by a conveyance not signed by her husband, hut reserving his rights ; What is the legal effect of the conveyance ? and state the principle. The conveyance is null ; because he is her guardian, for secu- rity of herself and her heirs, as well as for his own right.' 95. A married woman executes a personal bond, with con- sent of her husband, and she ratifies it upon oath ; What is the eifect of the deed, and upon what prin- ciple ? The bond is null ; the principle being, that as action cannot be sustained on a null obligation, eifect ought not to be given to it, although ratified by the granter upon oath ; because no paction of .a private party can constitute a rule of judgment by which a public law would be eluded. ^(e) 96. A woman granted two bills, one before marriage, and the other afterwards, the second being a renewal of the first ; Is she or her husband liable for the amount ? Neither the husband nor the wife is liable ; because the first was discharged, and the second, although a renewal, being grant- ed after the marriage, could create no obligation. ^(jr) ' Ersk., 1, 6, 27. ' Balfour, 5tli March 1831, 9 S., ^Ersk., 3, 3, 60.(/). 558. " We have unfortunately little aid from the consulted judges, who have gone upon the view of deciding the case independently of that question alto- gether." The point therefore is perhaps not to lie held as quite settled. («) A somewhat contrary doctrine is laid down by Erskine, 1, 6, 27, where he says — " Nay, though the obligation " (hy a wife, with consent of her husband) " be in its form merely personal, yet if by a back-bond or defeasance of the same date it shall be restricted to her heritage, it will be effectual, Jan. 23, 1678, Bruce {Diet., p. 6965), for by such back-bond the nature of the obligation, of which the back-bond makes a part, is in effect changed, and continues no longer personal ;" but Lord Ivory, in a note to that passage, refers to an observation by Fountainhall, M., 5966, " that the decision deserves to be again considered." (/) A V. B, M., 5965 ; "Watson, 5976. Iff) There is an element in this answer, viz., the discharge of the first bill, which is not in the question. It appears from the report that the dis- Digitized by Microsoft® 48 CAPACITY OF PARTIES. 97. May a married woman validly execute a mortis causa settlement without her husband's consent? State the reason. A married woman may validly execute deeds mortis causa, dis- posing of her separate estate, either heritable or moveable, with- out her husband's consent ; because the husband has his curatorial powers, not in consequence of the wife's unripeness of judgment, but partly for his own benefit, and such deeds neither can affect his interest, nor have any operation till his potestas maritalis is at an end.^ But no legacy, or bequest, or testamentary disposition by a married woman, of any portion of the goods in communion, is effectual.^ 98. A husband raises an action for his wife's legitim in his own name and without her consent ; Is the action competent ? State the reason. The action is competent ; because legitim is a right which vests, ipso jure, on the death of the father, and, when not dis- charged by a daughter before marriage, is transferred to her hus- band, who is therefore entitled to sue for it without using her name and without her consent. ^(/i) ' Ersk., 1, 6, 28. ' Maodongal, 20th Fel). 1858, 20 •" 18 Vict., c. 23, I 6. D., 658. charge was alleged, and the fact of the second being a renewal denied, but it is not stated how these allegations were disposed of. Had the first bill been found to be stiU subsisting, the judgment would probably have been different, on the ordinary principle of a husband's liability for his wife's debts contracted before marriage. (A) There are exceptions to this rule. Thus, where an election was to be made between legitim and a provision in favour of the wife in liferent and her children in fee, exclusive of the jus mariti of the husband, she was found entitled to appear and to claim the provision in opposition to her hus- band and his creditors; Stevenson, 7th Dec. 1838, 1 D., 181. See also Lowson, 15th July 1854, 16 D., 1098. The rule seems to be, that where the provision as well as the legitim falls under /uj mariti, the husband cannot be controlled in his election ; but where there is an independent or adverse in- terest in the wife, she is entitled to claim the protection of the Court, though she will not be allowed oapricioiisly to exercise her choice in order to defeat creditors. Digitized by Microsoft® CAPACITY OF PARTIES. 49 99. What is the proper form of a bond and disposition in se- curity by a husband and wife, burdening her lands for his debt ? The personal obligation is undertaken by the husband alone, and the conveyance in security thereof is granted by the wife as the principal party, with consent and concurrence of her husband, for his own interest and as taking burden on him for her.' 100. Two heritable bonds having been granted by a husband and wife, over her estate, for debts due by the hus- band, the creditor in the one raised and completed an adjudication of the wife's lands, upon her obligation ; and the creditor in the other expede resignation and infeftment therein, in virtue of the procuratory con- tained in his bond, for resigning the lands in security granted by the wife with her husband's consent ; Are the securities, or either of them, effectual ? (1) The adjudication is null ; the principle being, as stated by Lord Pitfour, that an adjudication proceeds on this, that the debtor has become bound to pay, and has neglected to fulfil his personal obligation ; but there can be no personal obligation on the wife, and therefore an adjudication cannot proceed against her lands. ^ (2) The resignation and infeftment in security are effectual ; for although the heritable bond is null as to the wife's obligation for the money, she may, with consent of her husband, grant man- dates and other deeds relative to her separate propertj^, and the bond is therefore valid, as containing a procuratory for resigning her lands in security of her husband's debt.^ 101. A woman, before marriage, grants an onerous assigna- tion of a personal bond in her favour, but the assignee neglects to complete his right by intimation to the debtor before the marriage of the cedent ; Is the as- signation effectual in a question with the husband claiming the contents of the bond in virtue of the as- signation implied in marriage ? State the reason. ' Jur. Styles, i, 606 ; Smith, 10th ' Eleis M., 5987 ; Watson v. Hen- Jan. 1828, 4 Mur., 400. derson, 9th July 1802, Hume, 208. "^ Watson V. :^obertson, M., 5976. 1) Digitized by Microsoft® 50 CAPACITY OF PARTIES. Yes ; because the husband is by marriage liable for the wife's moveable debts ; and since the assignation granted by a woman be- fore her marriage implies warrandice against her, that obligation of warrandice is a moveable debt due by her to the assignee, with which the right the husband had acquired by the marriage was burdened ; so that he cannot plead upon his legal assignation in prejudice of that warrandice. '(*) 102. By what means may the power of selling her heritage, without her husband's consent, be conferred on a mar- ried woman ? Such a power may be conferred on a married woman by the husband renouncing his jus mariti and right of administration by antenuptial marriage-contract ; or by third parties excluding these rights in conveyances by them in favour of the wife.^(fc) 1 Ersk., 3, 5, 7. " Ersk., 1, 6, 14. (i) This principle, however, would not excliide the hushand's " creditors attaching the fund assigned by the marriage, or having right by sequestra- tion. The assignee, without intimation, would be there postponed in respect of the real right preserving his claim of warrandice as a, personal debt." Bell's Com., ii, 18. [k) The rule stated is hardly to he relied on. The precautions here suggested, though suiEcient to protect the wife's property against the debts of the husband or the diligence of his creditors, do not meet the diflBculty arising from a wife's peculiar position, that she has no per- sona standi^ and can do nothing without her husband's concurrence. An illustration of this may be found in the case of Dick, House of Lords, 12th Dec. 1826, 2 W. and S., 522. Here a husband bought property, and took the title to his wife, and thereafter became bankrupt, and fled the country. The usual decree of adjudication was pronounced in favour of the trustee, and the bankrupt was ordained to grant all necessary conveyances in implement thereof The wife executed a disposition in favour of the trustee, proceeding on the narrative that the property had been purchased with her husband's money while he was insolvent, and that therefore her title was reducible. The trustee thereafter sold the property, and the pur- chaser having refused to take the title, an action was raised to try its validity, and it was held in the H. of L. that it was not good. It was there pleaded by the purchaser that " a disposition by a married woman, without consent of her husband, is inept, and consequently the conveyance to the trustee is null and void ;" and the Lord Chancellor (Eldon) observed — " I think the opinions of the judges are quite enough to show that it is not a good title." The case had been decided in the Court of Session, on the Digitized by Microsoft® "CAPACITY OF PARTIES. 51 103. May a married woman act as a testamentary trustee and sine qua non, and as tutor or curator ? A married woman may act as a testamentary trustee and sine qua non, independently of her husband ; on the ground that there is no sinking of the rational person by marriage. (/) The husband may object, hut he must do so in limine; otherwise he will be held to have renounced his control, and cannot be allowed to interfere as to particular acts. But the wife qua trustee cannot proceed judicially without the concurrence of her husband.(TO) She cannot act as tutor or curator, ^(m) 104. A married woman, with concurrence of her husband, and without undue influence, grants a disposition of her heritage in security of her husband's debt, but she re- fuses to ratify it ; Is it valid ? The deed is valid ; because ratification is not indispensable to validate a deed by a married woman, the effect of that formality being only to secure it from challenge, on the ground that it was granted through force, or fear, or undue influence on the part of the husband.^(o) ' Bell's Prin., 1612. ^ Menzies Lect., 39 (40) ; Buchan, 1st March 1834, 12 S., 511. construction of a condition in the sale, nnder which it was held the pur- chaser was bound to take the title as it stood, and hence effect had not been given to the objection. The case of Rennie, H. of L., 25th April 1845, 4 Bell, 221, may also be referred to, though there was there the specialty that the fund assigned, from which the jus mariti was excluded, was ali- mentary. The only certain mode of effecting the object referred to is through the medium of a trust. See opinions as to power of wife to convey to husband, notwithstanding exclusion by third parties of jus mariti, &c., Napier, 18th Nov. 1864, 3 M'P., 57. [l) So found, Stoddart, 30th June 1812, F.C. A husband and wife be- ing both named trustees, the wife is entitled to act and vote separately from her husband; Watson v. Darling, 14th Jan. 1824, 2 S., 607, H. of L., 1 W. and S., 188. (m) See Laird, 16th Nov. 1833, 12 S., 54. {n) This question raised in Stoddart, note (J), svpra, (o) In a reduction by a wife of an unratified conveyance, to which she was a party, of property belonging to her husband, in the liferent of which she had been secured by antenuptial contract, a proof before answer was al- lowed of averments of essential error ; Priestnell, 20th Feb. 1857, 19 D., 495. d2 Digitized by Microsoft® 52 CAPACITY OF PARTIES. 105. A deed by a married woman, bearing to be granted with consent of her husband, and to be duly ratified, is challenged on the ground that it was both granted and ratified under compulsion of the husband ; Is the challenge competent ? It is held by Erskinei that a ratification, made under the same compulsion with the deed itself, ought to be reducible as would have been the deed unratified ; but this doctrine is impugned by Professor G. J. Bell, who holds that ratification afi'ords a complete defence, "unless the party taking benefit by the deed should be proved to have been participant in the violence ; or at least had notice of the compulsion under which the deed was granted and the ratification made."^ (3) Insane Persons, &c. 106. An insane person grants a conveyance of his heritage before he is cognosced, but after the date of the com- mencement of the insanity as fixed by the inquest ; What is the effect of the deed, the grantee having been ignorant of the cognition by the inquest,(j)) and having believed the granter to be sane ? The deed is null ; the statute 1475, c. 66, declaring that all alienations made by a person cognosced after the time fixed by the inquest as the commencement of his insanity should be of no avail, as well as alienations made after the serving of the brieve.'(r) ^ Ersk., 1, 6, 34. = Moncrieff, M., 6286. 2 Bell's Com., i, 20 (5th ed., i, 143). Opinion that in an instrument of disentail by a wife in her own favour, ratification was unnecessary, but authorised ob majorem cautelam ; Brisbane, 1st March 1850, 12 D., 917. (p) There is probably a misprint here, the cognition being supposed to be subsequent to the conveyance. {?•) The rule, according to Professor G. J. Bell, is not so absolute as here ■ stated. The trial is ex parte, and the Terdict is not conclusive either way. It authorises guardianship, and gives the guardian the aid of the presump- tion arising from the inquiry, but a deed granted before the time so fixed may, on competent evidence, be reduced, while one granted after it may stand, and a deed may be challenged though the trial may not have issued Digitized by Microsoft® CAPACITY OF PARTIES. 53 107. State a good rule of jH-actice as to the framing and execution of deeds of settlement which might he exposed to the risk of heing challenged on the ground of facility ? (1) The deed ought to he in a simple form, and easily intelli- gible, as such a deed might he effectual, while one by the same party of an elaborate nature, and containing complicated provi- sions, might he reduced.^ (2) Care should be taken to explain the nature and effect of the deed, and to ascertain that the party knows its meaning. (3) The party's medical attendant should be present at its execution, and be one of the instrumentary witnesses. 108. How is judicial and voluntary interdiction of profuse persons imposed ? (1) Judicial interdiction is imposed by the Court of Session, upon an action brought against the prodigal at the instance of his heir or next of kin or (it is said) by any of his relatives ; ^ the judgment finding and declaring him to be weak and facile, inter- dicting him to persons named, prohibiting him from selling his lands or from contracting debt whereby they might be adjudged, and declaring such deeds null. (2) Voluntary interdiction is imposed by the pai-ty himself by bond or other writing, expressing the granter's weakness, and binding himself to certain persons that he shall not, without their consent, grant any deed. ' "Watson, 18fch Nov. 1825, 4 S., 200; ' Fraser Per. Eel., 2, 341. aff. 29th June 1827, 2 W. and S., 648. in a verdict of insanity. The rule seems to be, that while a person of mature age is presumed to be of full capacity, a verdict of insanity inverts this pre- sumption, and raises the opposite one of incapacity. See Bell's Com., i, 137 ; and Hay, July 1810, there referred to, note 1. In that case, a person having in 1805, after public advertisement, sold an estate to a stranger for a fuU price, was cognosced in 1807 by a verdict which found that he had been insane in the end of 1804, and that he was so on 7th January 1807, and had continued so till, and was so at, the date of the verdict ; and the question was, whether the verdict was not equal to one of sanity during the omitted interval. The Court held that it was not, 'and allowed a proof, whether there was insanity at the time of bargain. See also Morrison, 20th Dec. 1841, 4 D., 337, where a deed granted in 1837, and while the curatory still sxihsisted, by a person who had been cognosced In 1835, was sustained. Digitized by Microsoft® 54 CAPACITY OF PARTIES. (3) Letters of publication are issued on the bond or decree, and published at the market-cross of the head burgh of the per- son's residence ; and they must he registered within forty days in the General Kegister of Inhibitions, or in the Particular Eegister for the county in which the lands are situated.-' 109. What is the duty of interdictors, and how do they incur personal responsibility ? The duty of interdictors is to judge of the propriety of deeds by the interdicted person ; and all that they are answerable for is their fault or fraud in consenting to prejudicial deeds.^ 110. "What kinds of deeds granted by an interdicted person alone, without consent of his interdictors, are unchal- lengeable ? (1) Onerous or rational deeds, affecting his heritage.(s) (2) All deeds, whether onerous or gratuitous, relative to move- ables. But gratuitous personal obligations are reducible in so far as they may be the ground of diligence against his heritable estate. (3) Dispositions mortis causa, whether of heritage (<) or move- ables.^ • 111. Where an interdicted party sells his heritage for an inadequate consideration, and without consent of his interdictors, what is his remedy ? And what is his remedy if the interdictors have consented ? In the former case, an action of reduction of the disposition is the proper remedy ; and in the latter, a personal action against 1 Erak., 1, 7, 54, et seq. " Ersk., 1, 7, 59 ; Bell's Prin., "^ Ersk., 1, 7, 59. 2127. (s) A deed by the interdicted party in favour of one of his interdictors, for an onerous and rational cause, sustained; Kyle, 14th Deo. 1826, 5 S., 128. («) It is stated by Erskine (1, 7, 58) that an interdicted person " can make no settlement of his heritable estate, nor alter any former settlement, upon the most rational grounds, either with or without his interdictor's con- sent ;" but the case referred to (Tenant, M., 7127) was one of a revoaable settlement, failing heirs of the grantor's body, in favour of the interdictor, who was held barred personali exceptione from accepting it. Digitized by Microsoft® CAPACITY OF PARTIES. 55 the interdictors, to make up the loss occasioned by the inadequate consideration.^ 112. Where the heir of an interdicted person takes up the heritage on the death of his ancestor, but does not represent him as heir in mohilibus, is he liable upon his ancestor's personal obligations contracted after interdiction ? State the reason. The heir is not liable upon these obligations ; because they were not contracted on the credit of the heritable estate, in which alone the heir represents the ancestor.^ 113. What are the general principles by which the Court is regulated in disposing of challenges of deeds on the ground that the granter, at the time of execution, was in a state of intoxication ? (1) That a court of equity ought not to give its aid to one who has obtained an agreement from another in a state of intoxi- cation ; nor (2) to relieve one from a contract, merely because he was drunk when he made it ;(a!) but (3) that if there be induce- ment and seduction to drink, or advantage unfairly taken of the imbecility of drunkenness, judicial interference may be justified ;(2/) and (4) that a state of absolute deprivation of reason by intoxica- tion invalidates a deed as null and void.^(8!) V. UNLAWFUL CONTRACTS. 114. A granted a bond to B, bearing to be for money ad- vanced, but in reality ob turpem, causam, and B ob- » Ersk., 1, 7, 58. = Cook v. Clayworth, 1811, 18 2 Stair, 1, 6, 41 ;(«) Eraser Pers. Vesey, jr. 12; Bell's lU., i, 17. Eel., ii, 347. (m) See also Ersk., 1, 7, 59. {x) See Taylor, 16tli June 1864, 2 M'P., 1226. (y) See Couston, 26th Feb. 1862, 24 D., 607. (z) This is on the principle that the granter is at the time incapaWe of consent ; Ersk., 3, 1, 16, and 4, 4, 5 ; Jardine, June 1803 ; Hume, 684 ; Hun- ter, 12th May 1804 ; Hume, 686 ; Duncan, 18th July 1839, M'F., 278. Digitized by Microsoft® 56 UNLAWFUL CONTRACTS. tained payment ; Will the Court, at the suit of A, or- dain B to make repetition ? State the principle. The Court would not ordain B to make repetition of the sum paid ; because, although no obligation is recognised as a ground of action which is granted for an immoral consideration, yet, if the obligee has obtained performance, restitution cannot be en- forced, the regulating maxim in such cases being melior est con- ditio possidentis vel defendentis}(a) 115. What is the effect of conditions annexed to provisions that the grantee shall marry only with the consent of persons named by the granter. (1) Where the provision is the result of a natural obligation, as by a parent to a child, and does not exceed the grantee's legal claims, the provision will be due though the condition be unim- plemented.(i) (2) Where the provision is in addition to the child's legal claims, the condition will generally be effectual. (3) Where the provision is by a stranger, under no legal obli- gation, the condition will be strictly interpreted, and must be ful- filled, unless it amount to an absolute prohibition to marry, in which case it is regarded as contra honos mores. (4) Where the grantee has transgressed the condition in ignorance of its existence, the provision will be due ; at least in the case of provisions by parents to children. (5) Although the grantee should marry without askiag the consent of the parties, their subsequent approbation will obviate the forfeiture of the provision.(c) (6) There must be a good cause for refusal of consent, and there must be a reason assigned, otherwise the provision will be due, notwithstanding the non-fulfilment of the condition.( "Wilson, 7th Dec. 1830, 4 W. and and S., 548. S., 398; reversing judgment 12th ' Ersk., 3, 1, 16; Bell's Prin., 13 I'eb. 1829, 7 S., 401. E -2 Digitized by Microsoft® 68 EEROE, FORCE, AND FRAUD. 139. What is the general characteristic of force or fear suffi- cient to void a contract ? Force or fear sufficient to void a contract must be such as would overpower a man of firmness and resolution ; or such as, applied to a person of weaker age, sex,(y) or condition, would have the same effect as overpowering fear on a mind of ordinary firm- ness.^ 140. A creditor, metu carceris, obtained a bond of corrobora- tion from his debtor for the amount contained in the diligence, upon which he was imprisoned, and also for a separate debt ; Is the bond reducible ? The bond is not reducible quoad the sum contained in the diligence upon which the debtor was imprisoned ; because reducr tion is not competent upon fear, which proceeds from the regular execution of lawful diligence, for legal execution can import no wrong. But the bond is reducible quoad the separate debt ; be- cause the obtaining of deeds from an imprisoned debtor by the incarcerating creditor which have no relation to the debt contained in the diligence, is beyond the lawful object of imprisonment, and such deeds are therefore reducible ex metu.^ 141. A debtor, while in prison for the amount of a bill, was induced by the incarcerating creditors to grant in their favour an absolute disposition to a house ; Is the disposition valid to any effect ? The disposition is reducible ; "in respect the deed was taken from the pursuer (the debtor) while he was in prison at the de- fenders' instance, and was not a bond of corroboration, or in any shape relative tg the debt for which he was incarcerated, but an absolute disposition of a separate subject." But it is effectual " as a security to the defenders for any debt they can instruct to be justly due to them."^ 1 Ersk., 4, 1, 26 ; Bell's Prin., 12. = Fraser, 13th Deo. 1810, F.C. » Ersk., 4, 1, 26. (y) Averments that a deed had heen ohtained from a woman by threats of the immediate incarceration of her husband for civil debt, held not rele- vant to entitle her to an issue of force and fear ; Craig, 13th Dec. 1865, 4 M'P., 192. Digitized by Microsoft® EREOR, FORCE, AND FRAUD. 69 142. What is the effect of deeds obtained by fraud, or by force or fear, in the hands of third parties ? (1) Deeds obtained by fraud are not' challengeable in the hands of third parties purchasing hona fide, unless they represent the defrauder ; because such deeds are not absolutely null, there being consent, though the granter's judgment had been influenced by fraud in giving it. Thus, purchasers of feudal rights, relying on the faith of the records, — ^purchasers of corporeal moveables, who give their money for the subject itself, trusting nothing to personal credit, — and onerous indorsees of bills and notes before the date of payment, and of bills of lading, — are not affected by the fraud of their authors if they themselves have not been parti- cipesfraudis. But where the assignee represents or stands in the place of the person who fraudulently impetrated the right, the rule obtains, Assignatus utitur jure auctoris, so that all exceptions which were comjDetent against the cedent are good against the assignee, as is the case in bonds or other personal obligations or contracts ; and also by statute, in indorsations of bills and notes after the date of payment, which are deemed to have been taken subject to all objections or exceptions to which they were liable in the hands of the indorser. (2) A deed extorted by force or fear is null not only to the grantee but in the hands of third parties, whether with or with- out notice ; because the objection produces a lahes realis, or in- herent vitiation, there being an absolute defect of that consent which is essential to every obligation.' 143. What is necessary to found a reduction of a deed under the Act 1621, c. 18, anent unlawful dispositions by bankrupts ? (1) The deed must be granted after contracting the debt due to the pursuer. (2) It must be granted in favour of a conjunct and confident person. (3) It must be without true, just, or necessary cause to the prejudice of the granter's creditors, 1 Bell's Com., i, 23 (5th ed., i, Vict., c. 60, § 16 ; Wardlaw, 10th 296) ; Erak., 3, 5, 10 ; 19 and 20 June 1859, 21 D., 940. Digitized by Microsoft® 70 ERKOB, FORCE, AND FRAUD. (4) The granter must be insolvent at the date of delivery of the deed.^ 144. May gratuitous creditors challenge, under the Act, deeds granted by the bankrupt to their prejudice ? State the principle. Yes ; because donation infers a just, true, and lawful obliga- tion against the donor, and carries an implied warrandice against future deeds.^ 145. Are a brother, an uncle by blood or affinity, and a cousin by blood or affinity, conjunct persons, in the sense of the Act ? A brother and uncle by blood are conjunct persons (z) in the sense of the Act, but not an uncle by afiinity,(a) or a cousin whether by blood or affinity .'(6) 146. Are cautionary obligations struck at by the Act 1621 ? No ; because a cautionary obligation is not considered gratui- tous. It is onerous so far as the creditor is concerned, who, in consideration of the security, lends his money, and forbears from diligence. 147. What deeds are struck at by the Act 1696, c. 5, for de- claring notour bankrupts ? All deeds granted by a bankrupt within sixty days of bank- ruptcy towards the payment or for the further security of any creditor, in preference to the other creditors. But the Act does not strike at alienations in consideration of a price paid in cash ; nor at nova debita or obligations for sums instantly received ;* nor at deeds granted in implement of a prior obligation, but the obli- gation must be instantly to grant,^ and not at any time when re- quired.^ 1 Ersk., 4, 1, 28, et seg. 425 ; aff. Gth .Tuly 1832, 6 "W. and '■ Ersk., ib. S., 79 ; Taylor, 8th March 1855, 17 » Ersk., 4, 1, 31. D., 639. * Ersk., 4, 1, 41. » Monorieff, 16th Deo. 1851, 14 6 Cranstoun, 2d Feb. 1830, 8 S., D., 200.(c) (z) Tarpersie, M., 900. (a) Ehbank, M., 12569. (6) Mercer, M., 12569. (c) See also Mansfield, 28th June 1833, 11 S., 813. Digitized by Microsoft® ERROK, FORCE, AND FRAUD. 71 148. Are bills, or a bond of corroboration of a prior debt executed by the granter to save him from diligence, struck at by the Act 1696, if granted within sixty days of bankruptcy ? (1) Bills granted for present advances do not fall under the statute ;^ but acceptances and indorsations of bills in security of prior debts,^ and payments by means of bills drawn on debtors of the bankrupt,^ are challengeable. (2) Bonds of corroboration, being voluntary deeds, are struck at by the Act.^ 149. What circumstances infer notour bankruptcy ? (1) Sequestration, or by the issuing of an adjudication of bankruptcy in England or Ireland. (2) Insolvency concurring either (1) with a charge for pay- ment, followed by imprisonment or apprehension of debtor, or by his flight or absconding from diligence, or retreat to the sanc- tuary, or forcible defending of his person against diligence, or where imprisonment is incompetent or impossible, by arrestment unloosed for fifteen days, or by poinding, or by adjudication ; or (2) with sale under a poinding, or under a sequestration for rent, or with his retiring to the sanctuary for twenty-four hours, or with his applying for a cessio bonorumj VII. HOMOLOGATION AND REI INTERVENTUS. 150. Define homologation and rei interventus, so as to shew their diiference. (1) Homologation is the assent or approval which the granter of a deed interpones to it by a posterior act, so as to exclude ob- jections, which otherwise would have been competent to him, and admitted by law for his own protection, but waived by the appro- batory act.^ (2) Bei interventus excludes the privilege of resiling from contracts which, although really undertaken by the parties, are •Stein, M., 1142; Dundas, 2d * Mackellar, M., 1114. June 1808, F.G. ' 19 and 20 Vict., c. 79, g 7. '' Eobertson, 21st Nov. 1798, F.G. " Bell's Prin., 27 ; Menzies Lect., = Barbour, 30th May 1823, 2 S., 351. 176 (182). Digitized by Microsoft® 72 HOMOLOGATION AND EEI INTEEVENTUS. not binding in respect of defect in form or in authentication ; and it " is grounded on the fact of the person, otherwise imperfectly hound, having permitted the other party to proceed on his obKga- tion or agreement as if it were complete ; and to perform acts on the faith of it, referable to or resulting from the agreement, and which, by the refusal to execute the agreement, would prove de- trimental to the person so misled or encouraged to proceed."^ 151. May deeds granted by pupils, or by minors, without consent of their curators, or by wives without consent of their husbands, be rendered obligatory by homolo- gation ? (1) Deeds by pupils do not, in a strict sense, admit of homo- logation ; because pupils are naturally incapable of consent, and the doctrine of homologation does not apply to deeds by parties labouring under an absolute natural incapacity. ^(c?) Approbatory acts, however, by the granter may render the deed obligatory up- on him, on the principle of adoption ; but this is truly making a new deed, the binding effect of which can have no retrospect.^ (2) Deeds by minors without consent of their curators, and by wives without consent of their husbands, may be rendered effec- tual by subsequent homologation ; because the nullity of such deeds arises from legal disqualification, and not because the par- ties are naturally incapable of consent.''(e) ' Bell's Com., i, 60 (5th ed., i, » Bell's Com., i, 63 (5tli ed., i, 328). 145). ^ Ersk., 3, 8, 47 ; Menzies Leot., * Erst., 3, 3, 47. 177 (183). (d) Erskine, in his Principles (8, 8, 15), says that homologation " takes place e¥en in deeds intrinsically null, whether the nullity arises from the want of statutory solemnities or from the incapacity of the granter ;'■ and this is referred to as more accurate by Mr Bell (i, 145, note). And Mr Dickson (Evid., § 856) also doubts the soundness of the distinction taken by Erskine, in his Institutes, between a deed by a minor as being capable of homologation and one by a pupil as being a kind of non ens. But the differ- ence may lie in this, that while there is a certain capacity of consent on the part of a minor, there is absolutely none on that of a pupil ; that there can be no approbatory acts by him till his incapacity has ceased ; that even then they have no retrospective effect, because there is no deed to which they can refer, and therefore that they constitute, not homologation proper, but adoption, or a new and independent deed. (e) Erskine, in the section here referred to ad fin, says — " Where the act Digitized by Microsoft® HOMOLOGATION AND EEI INTERVENTUS. 73 152. Does the subscription of the instrumentary witnesses infer their homologation of the deed ? State the prin- ciple. The subscription of the instrumentary witnesses to a deed does not infer homologation ; because they merely attest the gran- ter's signature, and are not presumed to know the contents of the deed, without a knowledge of which there can be no homologation. But it has been held that the subscription of a father as witness to his daughter's marriage-contract infers homologation, there being a presumption, arising from the attestor's near relation to the bride, that he both knew and approved the contents of the deed.'(/) 153. Does the subscription of an heir-at-law to his father's settlement, executed on deathbed, infer homologation ? No ; because (1) instrumentary witnesses merely attest the granter's signature ; and (2) it is presumed that he signed as wit- ness from fear of offending his father by refusal, ^(jr) Homologation 1 Ersk., 3, 3, 48; Davidson, M., » Dallas, M., 5677. 5652 ; Johnston, M.., 5657. of homologation is itself invalid, the defects of the original deed cannot therehy he supplied. A woman, for instance, while she is clothed with a husband, is incapahle of hoinologating an informal or defective deed which she had granted previously to her marriage, hecause the consent given hy her in the act of homologation is as invalid and ineffectual as it was in the deed homologated." It has been held that a bond granted by a female minor, with consent of her father, was not homologated by a subsequent re- cognition contained in an antenuptial contract of marriage between her, while still in minority, and her intended husband ; Rose, 20th Nov. 1821, 1 S., 154. But the case was somewhat special, the bond, which was by a sister to a brother, being objected to on the ground of lesion, which was sus- tained ; but action was reserved to the pursuer for any claim which he could competently establish. The Lord Ordinary (Alloway), in a note, observed as to the husband, that " At the time he entered into the contract of mar- riage it might be doubted whether he had any title to challenge the bond." (/) Erskine, in the passage cited, attributes a similar effect to witnessing ' by a brother. {ff) Erskine (3, 8, 99) lays down this rule, but Professor Bell (i, 144, note) says, commenting on the passage, " it would rather seem that if the ancestor could effectually disinherit, and is prevented from doing so only by the heir's consent, it would be an act which the heir could not afterwards be Digitized by Microsoft® 74 HOMOLOGATION AND REI INTERVENTUS. has been inferred where the heir had both written and attested the deed ;'■ but as a ratification of a deathbed deed, or a renunciation of the right of challenge by the heir during the life of the granter, is of no avail,^ the case cited infra^ is of questionable authority. 154. A bond granted by a female under age, without consent of her curators, is ratified by her after her marriage, with the concurrence of her husband ; Is the bond effectual against either the husband or the wife ? The bond is not effectual against the wife, because one who is incapable of legal obligation cannot homologate f nor against the husband, because a husband's concurrence in a personal obligation by his wife neither makes the obligation valid, nor creates an ob- ligation on himself.^(/i) 155. Is a deed of entail vitiated by erasures in suhstantialibus capable of homologation ? State the reason. No ; because, if the estate was not validly fettered by the en- tail, as executed and completed by the maker, his heirs are entit- 1 Brown, M., 5624. ' Ersk., 3, 3, 47. 2 Inglis, M., 3327 ; Forbes, M., « Lennox, 19th May 1821, 1 S., 3277. 22. entitled to retract. This fear of disinheriting is not the species of fear which the law regards as suflScient to annul consent." (A) The case of Lennox, cited, referred not to a bond granted by an nn- married female under age, but to a cautionary obligation granted by a wife for her son by a former marriage, to which the husband subjoined, " the aboYe is done with my consent ;" and which was found nuU in toto, the ground in regard to the husband being, that as a mere consenter he under- took no obligation. Perhaps the case intended to be referred to was that of Rose, quoted in note to Ans. 181, though the circumstances are not quite the same. It is to be kept in view that bonds by minors, without consent of their curators, are not necessarily null (see 83), and tierefore a husband might be liable for such a bond, without any ratiiication. As to a husband's • liability for his wife's acts, see Grant, 26th Feb. 1830, 8 S., 606, where a husband, being sued for money borrowed by his wife, part of which he had repaid, though alleging that it was a secret transaction from which he reaped no benefit, pleaded that his wife could not contract obligations for borrowed money, so as to bind him; but the claim was found to have been sufSciently homologated by the defender. Digitized by Microsoft® HOMOLOGATION AND REI INTERVBNTUS. 75 led to take up the estate in fee-simple, and their acts cannot raise a null deed into a strict entail.^ 156. Does the receipt of rents by an heir of entail, who is also heir alioqui successurus, infer homologation of a lease granted by his ancestor contrary to the terms of the entail ? State the reason. No ; because the acceptance of rents payable under a deed, which affords a good title of possession till reduced, does not in- fer homologation of the deed.^(A;) 157. May a deed be homologated in part ? Yes ; but protestation must be made restricting the effect of the approbatory act ; otherwise it will sanction the whole deed, unless fairly divisible into parts.' But where the person protesting is not entitled to take the benefit which he contemplates without undertaking the ohhgations imposed by the deed, the protest will have no effect in discharging such obligations.^(Z) 158. In the reduction of a deed on the ground of insanity, or of facility and lesion, is the defender entitled to a counter issue of homologation ? State the reason. (1) The defender will not be allowed a counter issue of homo- logation as against the issue of insanity ; because the proof to be led by the pursuer, if satisfactory to the jury, would absolutely destroy the deed, and there would be nothing left to be set up by homologation. (2) But the defender is entitled to meet the issue ' Dickson Evid., i, 444 (^ 858) ; ' Malcolm, 19th June 1823, 2 S., Shepherd, 24th Jan. 1844, 6 D., 410. 464.(«) ' Menzies Lect., 179 (185). * Shaw on Oblig., 202. (i) Aif., 6 Bell's App., 153. The question here was as to the efficacy of the destination. See also Boswell, 20th Jan. ]852, 14 D., 378. (A) In the case of Malcolm, quoted, there was the specialty that the right to challenge was expressly reserved in all the receipts, so that the case is hardly in point, and the fact of the pursuer being heir alioqui successurus does not appear in the report. (Z) This is on the principle of approbate and reprobate. Homologation is not excluded by a reservation not communicated ; Adam, 24th Dec. 1842, 5 D., 391. Digitized by Microsoft® 76 HOMOLOGATION AND REI INTEKVENTUS. of facility and lesion by homologation; because, although the pursuer proved that the deed had been impetrated yet if the de- fender established that it had been subsequently and sufficiently homologated, the deed would stand. ^ 159. Does homologation validate deeds from their date ? (1) Where there is already an obligation existing, though im- perfect or subject to exception, homologation has the effect of confirming it from its date, the deed having then received the es- sential element of consent. (2) But where the deed is originally null, the binding effect of homologation has no retrospect, the consent in this case being adhibited when the party, by the appro- batory act, for the first time undertook the obligation.^(m) 160. What is the difference in effect betwixt a promise to convey land and a promise to ratify an informal deed? A promise to convey land may be resiled from before it is reduced to writing ; but it is different with a promise to ratify an informal deed already granted, as in this case the action lies on the deed, and the granter is barred by his promise, personali ex- ceptions, from pleading the nullity. ^(m) 161. May a deed be validated by rei interventus when the subscription is denied ? State the reason. 1 Gall, 3d July 1855, 17 D., 1027. ' Christies, 19tli November 1776 ; ^ Bell's Com., i, 63 (5th ed., i. Bell's lUus., i, 35. 145) ; Dickson Evid., i, 450 (§ 870). Jk (m) This is properly adoption. Professor Bell states (Com., i, 146) that where there is a verbal error in the deed homologated, the homologation will be held to sanction the deed in its true meaning, but not the error ; and that though homologation bars him who so confirms the deed and his representatives, it does not aifect third parties entitled to rely on a real right, and so homologation of an heritable bond, in which one of the witnesses was not designed, and on which infeft- ment followed, was held ineffectual to support it as a real right in competi- tion, although good to support the bond as a personal debt ; Liddel, M., 5721. See also Mansfield, 28th June 1833, 11 S., 813. (n) In the case (Christies) cited, which is dated 22d Feb. 1745, and is reported, M., 8437, it was found relevant to prove a promise to ratify an in- formal disposition by the oath of the party. Digitized by Microsoft® HOMOLOGATION AND REI INTERVBNTUS. 77 No ; because the object of rei interventus is to obviate defects in tlie form or the authentication of documents, to which the party has really, though not formally, consented.' 162. May a deed to which a party's signature has been forged be validated by homologation or rei interventus ? A forged deed may be rendered binding by homologation ; in consequence of the party whose signature is fabricated either expressly or by his conduct accrediting the deed as genuine. ^(o) But a forged deed cannot be made effectual rei inierventu by the other party having acted on the faith of it ; because that plea is available only where real consent is admitted or proved.^ 163. May a deed granted by a minor, without consent of his curators, be made binding on him by homologation or rei interventus ? A deed by a minor, without consent of his curators, may be validated by homologation after majority ; the want of the cura- tors' consent being an objection admitted for the minor's pro- tection, which may be waived by him when sui juris. But such a deed will not be made effectual by rei interventus done on the faith of the deed by the other party, at least during the minority of the grantor, on the principle stated in Answers Nos. 161 and 162.5(p) 164. May a verbal lease for a period of years be validated by rei interventus ? (1) A verbal lease for a period of years may be validated as against the landlord and his heirs, by rei interventus, provided such rei interventus can be fairly ascribed to a right of longer duration than a single year ;(r) but where it applies only to a ' Graham, 30t}i Nov. 1848, 11 D., ^ Dickson BYid., i, 444 (| 857), 173. and cases there cited. ' lb., i, 424 (§ 817). (o) Mr Dickson (§ 867) says such a deed may be so rendered binding, " at least in the hands of one who is not accessory to the fraud." (p) Homologation also validates deeds impetrated by fraud, and operates ab initio ; Dickson's Evid., § 857, and note 1. {r) Such as paying a grassum, erecting expensive buildings, &c. It is Digitized by Microsoft® 78 HOMOLOGATION AND EEI INTERVENTUS. right of possession from year to year it will not make a lease for a period of years eifectual.^ (2) But a verbal lease, though fol- lowed by rei interventus, is not binding upon the landlord's singular successors ; who may disregard any tack which has not been re- duced to writing, and followed by possession.^ 165. When a person has agreed verbally to become cautioner, and promised to sign a written obligation, does m interventus on the verbal undertaking render it effec- tual? No ; because writing is a statutory requisite in the constitu- tion of cautionary obligations.' VIII. STAMPS. 166. Enumerate the different kinds of stamps. (1) Ad valorem stamps ; (2) deed stamps ; (3) denominational stamps ; (4) stamps for progressive duty on words ; (5) drafts, or orders payable on demand, and receipts. 167. When a stamp is used of an improper denomination, but of equal or greater value than the proper stamp, is the instrument validly stamped? ' Ersk., 2, 6, 21 ; Ivory's Note, 2, 6, 24 and 25 ; Dickson Evid., 96 ; BeU's Prin., 1189. i, 431 (§ 833). 2 1449, c. 18 ; Stair, 2, 9, 4 ; Ersk., ' 19 and 20 Vict., cap. 60, § 6. to be kept in view that, notwithstanding rei interventus, a verbal lease can be proved only by vnit or oath of party, and not by witufesses. " When the institutional writers or other authorities speak of a verbal agreement not be- ing binding, even if it were admitted upon oath, they always mean a verbal agreement upon which there has been no rei interventus. And, on the other hand, when they speak in other passages of a verbal agreement being bind- ing if rei interventus has followed upon it, they always mean a verbal agree- ment competently proved ; that is to say, proved by the adversary's oath ;" per Lord Deas in Gowans, 18th July 1862, 24 D., 1382, who also said, in reference to a contention by the defender that there was no averment of a written agreement — " I am not disposed, however, to hold the pursuers pre- cluded on this ground from establishing a written agreement, if they can do Digitized by Microsoft® STAMPS. 79 The instrument is validly stamped, unless the stamp used shall have been specially appropriated ex facie to another instru- ment (s) as stamps for bills or notes.' But adhesive receipt- stamps (u) may be used for drafts or orders, notwithstanding their special appropriation.^ 168. Does a receipt by a factor to his constituent, for money to be applied as directed by the latter, require a stamp ? State the reason. No ; because a writing attesting the fact of the passing of money from one hand to another, when it is not paid in the dis- charge of an antecedent obligation, is not a receipt in the sense of the Stamp Acts.^ 169. What is the proper stamp for a bond with a conveyance of lands, and a policy of assurance in security ? A mortgage-stamp for the principal sum, the deed containing only one transaction. 170. What is the proper stamp for a conveyance of lands, only part of the price being paid, and a bond regu- larly stamped being given for the balance ? A conveyance-stamp for the full amount of the price. 1 16 and 17 Vict., c. 59, I 10.(<) =■ Macintosh, 16th Dec. 1851, 14 2 17 and 18 Viot., c. 83, § 10. D., 187 ; Menzies Leot., 85 (88). («j There is an exception to this rule in the case of bills and promissory- notes, which must be impressed with appropriate stamps ; Tilsley, 132 ; but if " stamped with a stamp of an improper denomination, but of sufiicient amount, may be stamped on payment of the duty and a penalty" of 40s., or £10, according to circumstances ; 37 Geo. Ill, c. 136, §§ 5 and 6. In no other case can bills or notes be stamped after they are written. it) The provision is contained not in this Act, but in 55 Geo. Ill, c. 84, I 10. (u) The provision of the Act applies to adhesive stamps for receipts and for orders or drafts of money payable to the bearer on demand, which may "be used for the purpose of denoting the like amount of duty, either on a receipt or on such draft or order as aforesaid, without regard to the special appropriation thereof for the other of such instruments, by having the name on the face thereof." Digitized by Microsoft® go STAMPS. 171. What is- the proper stamp for a disposition where part of the price is made a real burden on the conveyance, but the grantee is not personally bound ? A conveyance-stamp for the full price, and a mortgage-stamp for the real burden. (x) 172. What is the proper stamp for a conveyance under bur- den of an annuity reserved to the granter and his wife? A conveyance-stamp, with a stamp appropriate to a grant of the annuity.' 173. Do receipts for sums paid into a person's bank account require to be stamped ? A stamp is unnecessary where the receipt is granted to the depositor himself; but it is required in the case of a receipt granted to a third party for money paid in by him to the account of another ; because such a receipt operates as a discharge to the grantee. 174. What is the rule for calculating the stamp-duty on leases, where a grassum is paid?, (1) Where the rent is under £20, and the term under (y) 35 years, a conveyance-stamp on the grassum. (2) Where the rent exceeds £20, and the term is under (y) 35 years, both the lease-duty and conveyance-duty on grassum. (3) Where the term exceeds 35 years, whatever be the amount of rent, both lease-duty and conveyance-duty on grassum.^ 1 Wilkie, 5tli March 1850, 12 D., = 13 and 14 Vict., c. S7 (Schedule 818. Conveyance) ; 17 and 18 Vict., c. 83 (Schedule Lease or Tack). (x) If the part of the price has been made a real hurden hy a prior mort- gage, which it is arranged is to he allowed to remain, the conveyance-stamp alone is sufBoient. [y) In both of these cases the rule stated applies where the term does not exceed thirty-five years. Where the term is less than a year, the duty is the same as on a lease for a year, at a rent of the same amount as the sum payable; 17 and 18 Vict., c. 83, I 23. Digitized by Microsoft® STAMPS. 81 175. May an unstamped or improperly stamped disposition, promissory -note, policy of sea insurance, and a receipt, be stamped after delivery ? (1) A disposition may be stamped after delivery, on payment of the duty only, if brought to the Solicitor's Offioe, Inland Ee- venue, within sixty days of the first date, or, in certain circum- stances, within sixty days of the last date. The deed may be stamped within twelve months, without payment of penalty, or on payment only of a portion thereof, provided it shall be proved that the deed was not duly stamped before execution by reason of accident or urgent necessity. Beyond twelve months, it may be stamped on payment of a penalty of £10.(2:) If the deed shall be executed abroad, it may be stamped without any penalty if brought to be stamped within two months from the time of its being received in the kingdom.^ (2) An unstamped or inadequately stamped promissory-note cannot be afterwards stamped. When a stamp of a wrong deno- mination, but of the proper value, has been used, the mistake may be remedied on payment of a penalty. ^(a) (3) A policy of sea insurance cannot afterwards be stamped," except in cases of additional stamps for policies of mutual insur- ance, which were not underwritten for a sum beyond what the ori- ginal stamp would carry. *(6) (4) A receipt may be stamped within a fortnight, on payment 1 13 and 14 Vict., c. 97, § 12. 3 35 Geo. Ill, 0. 63, ? 14. 2 37 Geo. Ill, c. 136, §J 5, 6. * 9 Geo. IV, c. 49, i 1. (2) If the whole amount of duty or deficiency shall exceed £10, then, in addition to such duty and penalty, there is payable interest on the duty or deficiency at the rate of 5 per cent, from the date or first signing of the deed, but such interest not to exceed the amount of such duty or deficiency ; 13 and 14 Vict., t. 97. (a) Besides the duty; supra, Ana. 167, note (s). {b) By the 28 and 29 Vict., c. 96, J 15, the duties chargeable under that tir any other Act, in res2Ject of any policy of insurance of any description, shall extend to certain policies made or signed out of the United Kingdom, for loss or damage recoverable in the United Kingdom ; and such policies may be stamped, if presented for that purpose, within two calendar months after being received in the Kingdom, but not afterwards. Writs for the sale or mortgage of ships are exempt from stamp-duty ; 6 Geo. IV, c. 41, § 1, Digitized by Microsoft® 82 STAMPS. of a penalty of £5 ; and within a month, on payment of £10 ; but after that period it cannot he stamped. (c) A receipt indorsed upon a hond, mortgage, or hill duly stamped, is exempt from stamp-duty .^(d) 176. Three acknowledgments for money are granted on un- stamped paper, the first bearing " which I oblige myself to repay ; " the second, " for which I shall ac- count ; " and the third, " which I shall pay you when called for ;'' do these documents require to be stamped ; and if so, are they stampable after delivery ? The first and second documents are obligations requiring a bond- stamp, and therefore stampable.^ But the third is a promissory- note, and, therefore, incapable of being stamped. ^(e) 1 85 Geo. Ill, c. 55, §§ 10, 11. 3 Milne, 10th June 1852, 14 D., 2 Jones, 4th Dec. 1834, 13 S., 117 ; 849. Pirie's Rep., 28th Feb. 1833, ] 1 S., 478. (c) By the 43 Geo. Ill, c. 127, J 5, any instrument (except bills and notes) requiring a stamp of a particular denomination, " and whereon is impressed any stamp or stamps of a different denomination, hut of equal or greater value, may be stamped without the payment of the penalty of £5, imposed by the 37 Geo. Ill, u. 136." This provision would include re- ceipts. (d) Agreements liable to one duty of 6d. may be stamped without penal- ty, if lodged for the purpose, within fourteen days after being made ; if after that time, on payment of a penalty of £10 ; 7 and 8 Vict., c. 21, § 5. (e) Questions of this kind are always nice, and it is often difficult to draw the line between what does and what does not constitute a promissory- note. As observed by Lord President Hope in Jones (cited) — " A varia- tion, though apparently very minute, in the wording of such an instrument as this may make an important change in its legal character. It is there- fore very difficult to find one case which can be truly regarded as a pre- cedent accurately in point to another, unless the instrument founded on was expressed in the same terms in both cases." The test of a promissory-note may be stated generally to be, that the instrument shall contain a promise to pay a certain sum of money to the payee on demand, or at a particular date, or at a definite period, ascertained or ascertainable from the document itself ; Pirie's Eepa. (cited) ; Braid, 3d March, 1858, 20 D., 728, where, in the Lord Ordinary's note, the cases are collected ; Macfarlane, 11th June 1864, 2 M'P., 1210 ; Martin, 25th June 1833, 11 S., 782 ; Haddin, 17th Jan. 1838, 16 S., 331 ; M'Cubbin, 9th July 1856, 18 D., 1224. "Words in- Digitized by Microsoft® STAMPS. 83 177. What is the effect of an unstamped bill of sale of a ship, and a letter acknowledging receipt of the price ? Bills of sale of ships are exempt from stamp-duty : but a letter acknowledging receipt of the price does not fall within the ex- emption. It is a receipt for money, and therefore, if unstamped, it is not legal evidence of payment.'(/) 178. Is one stamp sufficient for a bond by three persons to pay debts due to several creditors of a common debtor against whom diligence had been used ? One stamp is sufficient, if the obligation by the granters is joint and several ;(. 83, J 27. (i) It would perhaps be more accurate to say, " to prove by parole the matters which it sets forth." If the witness has become blind since the deed was written or signed, it may be read over to him. (A) Eeversing judgment of Court of Session, 27th March 1849, 9 D., 1366. (I) In Matheson's case (note 5), in H. of L., Lord Chancellor Cottenham stated that the question whether an unstamped deed is tendered for a col- lateral purpose does not depend on whether the obligation, discharge, or other matter to which the stamp applies, is directly or is only incidentally involved in the issue, but upon whether the document is tendered in order to prove that there has been such an obligation or discharge, whatever bearing, direct or collateral, that fact may have upon the cause. Lord Brougham observed — " If the document is used in a way to mix up with it the receiving or paying of money, so that, upon the whole, a re- ceipt of money is the matter for which, or in respect of which, or connected with which, the document is used, it requires, past all doubt, to have a, stamp, because it is in one way or another used as a receipt. But if the Digitized by Microsoft® 80 STAMPS. 182. What is the legal effect of after-stamping deeds ? The general rule is, that after-stamping operates retro to the date of the deed, and will make it effectual from the first. And, (1) If the deed be stamped before decree is pronounced in an action founded on the deed, it will be effectual from its date. (to) (2) If the objection be not stated, and not 'noticed in the interlocutor in the cause, the deed will be effectual from its date.(n) (3) It is not safe to execute diligence on an unstamped deed, and trust to after-stamping ; for, if the diligence be suspended, the Court will not delay disposing of the suspension until the deed is stamped. (o) (4) The user of an unstamped deed may be found liable in the expenses of process incurred before stamping. 183. May a deed executed in France, and another executed same document is used for a totally different purpose, it is to me perfectly clear that it is not to be regarded as a receipt." Per Lord Campbell — " If a document, purporting to be a receipt, but un- stamped, is offered in evidence for any purpose during a trial, if it would be evidence when stamped as a receipt, to establish any point that is litigated between the parties, it cannot be received for a collateral purpose merely by the parties saying, ' I offer it for a collateral purpose, and let the receipt part be taken ^?'o non scripto.^ " In this case (Matheson) the question was as to the admissibility of an unstamped receipt for an admitted payment, tendered to prove, by an ad- mission therein contained, the accuracy of an account and balance therein referred to. It was rejected by the Court of Session, but admitted by the House of Lords. (m) A competitor for the office of trustee in a sequestration was unsuc- cessful in the Inferior Court, in respect of the rejection of a document for want of a stamp ; having got it stamped, he appealed, and the Court recalled the judgment, and appointed hifh trustee ; Ironside, 25th June 1847, 19 Jur., 597. [n) This answer seems to refer to a deed that has never been stamped. (o) In a suspension and liberation on the ground of an assignation of a bill, &c., not being stamped, warrant of liberation was, in the Bill Chamber, granted, without caution. The case having been heard on the passed note, the Lord Ordinary suspended the letters and charge simpliciter. The charger reclaimed, and in the meantime got the deed stamped, after which the interlocutor was recalled, and the letters and charge were found orderly proceeded ; King, 18th Dec. 1844, 7 D., 228. Digitized by Microsoft® STAMPS. 87 in Canada, receive eifect in this country, both being ineffectual by the lex loci contractus from want of a stamp ? State the reasons. (1) The deed executed in France, though null by the laws of that state from want of a stamp, will receive effect in this country ; because the courts of one state are not bound by the law of nations to enforce the revenue laws of another. (2) But the deed executed in Canada, if null there from want of a stamp, will likewise be ineffectual here ; because the reci- procal enforcement of the Stamp Laws of this coiintry may be se- cured in the colonies. -(^j) IX. CLAUSES COMMON TO MOST DEEDS. (1) Narrative. 184. What is the effect of deeds in which the granter or one of the witnesses is not designed, but can easily be identified? State the reason. (1) Deeds in which the granter is not designed, are valid, if there be no doubt of his identity ;(r) but an exception obtains in the case of deeds granted under the Entail Amendment Act, it being indispensable in such deeds to specify the granter's desig- nation and place of abode, (s) 1 Dickson Evid., i, 516 (? 1003). (p) See Tilsley on the Stamp Laws, pp. 282, 3, where the same view is stated, though, it is added, without any direct authority for the distinction as to the Colonies. [r) The ef idence of the granter's identity, however, must be found in the deed itself, so that it must contain some description of him, as by his pro- fession or residence, &c., though there is no fixed rule as to the kind of de- scription, provided it be sufficient There is a case (Dickson, 22d Dec. 1710, M., 16916) in which an assignation by the husband to the wife in a mar- riage-contract was sustained, though the husband, who was also the writer, was not designed either in the deed or in the testing clause ; but were the case occurring now, the result would probably be different. («) The residence of parties is required in certain proceedings under the Act (see §§ 6 and 83, and Jur. Styles, i, 25G, et seq.), but not apparently in all deeds granted under its provisions. Digitized by Microsoft® 88 NARRATIVE. (2) A deed wanting the designation of one of the witnesses is null; heoause that is a statutory solemnity not suppliahle by con- descendence.^ 185. Does a party require judicial authority for changing his name ? Judicial authority is not required in the general case ;(<) but a notary public cannot execute instruments by a name diiferent from that which he had when admitted, without authority to that effect from the Court. 186. Is it indispensable that deeds express the cause of granting ? A statement of the consideration is indispensable,(M) under the Stamp Acts, in deeds of conveyance and sale ; and although in other cases a specification of the cause of granting may not be essential, it is always advisable to insert it, not only for the eluci- dation of the deed, but because that is the criterion for determin- ing the kind of warrandice implied in the transaction.^ (2) Clause of Warrandice. 187. Define Warrandice. Warrandice is an obligation by the granter that the subject of the grant shall be effectual to the receiver, and not be evicted from him by any one having a better or preferable title ; and, without any special clause, it is implied in all deeds, either in a more extended or in a more limited degree, according to the na- ture of the right .^ 1 1681, c. 5. 3 Ersk., 2, 3, 25. 2Menzies Lect., 145 (151). (*) See observations per Lord President Hope in Young, 14th Jan. 1835, 13 S., 26 ; Kinloch, 13th Dec. 1853, 16 D., 1819. In earlier oases (Muir, M., 7448 ; Mow., Act of Sederunt, 11th August 1789) authority had been granted ; and it was again granted, Inglis, 29th Nov. 1837, 16 S., 111. The rule in England in this respect is different. (m) If by " indispensable " it is meant that the omission to recite the con- sideration money would render the conveyance null, this statement is incor- rect. The omission involves very heavy penalties to the parties, and also to the agent, but not nullity uf thf deed ; 48 Geo. Ill, o. 149, §§ 22 to 25. Digitized by Microsoft® WARHANDICE. 89 188. Enumerate the different kinds of warrandice, and specify the classes of deeds to whicli they respectively re- late. (1) /Simp te warrandice ; securing the grantee against the gran- ter's future deeds, except such as he was previously bound to exe- cute ; posterior deeds inconsistent with the right being deemed fraudulent. This is the warrandice implied in gratuitous deeds. (2) Warrandice from fact and deed ; securing the grantee against the past and future deeds of the granter. It is the war- randice implied in transactions and sales for an inadequate price ; and it is that which is generally expressed in conveyances of personal rights. (a;) (3) Absolute warrandice at all hands, and against all mortals; protecting the grantee not only against the acts of the granter and his predecessors, but against all defects that may appear to have been in his right antecedently to the grant. But liability under the warrandice is incurred only upon eviction arising from defect of right, and not from the nature of the subject, nor from a damnum fatale, nor from a supervenient law. It is implied in all onerous deeds,(2/) and it is inferred by the statutory clause, " I grant warrandice," in land rights, whether onerous or gratuitous. (4) Ileal warrandice, when express, is where one heritable subject is disponed to the purchaser of another, in security against eviction of the latter. It is implied in excambions, and gives either of the parties recourse upon his own original lands, in the event of his being evicted from the lands acquired by him in ex- change.-' 189. A debt of £1000 being assigned for an onerous consi- deration, with warrandice from fact and deed, and no debt being found to exist, has the assignee any claim ; and if so, against whom, to what extent, and upon what ground ? 1 Ersk., 2, 3, 25, et seq.; Bell's Prin., 122, et seq. {x) And in aasignations of debts and securities. [y) This goes rather too far. Absolute warrandice is implied in irre- deemable conveyances of land and other heritable subjects for an adequate price, but not in conveyances of debts, obligations, and securities, though these also may be, and generally are, onerous. Digitized by Microsoft® 9U WARRANDICE. The assignee has a claim against the cedent for the full amount of £1000; because warrandice from fact and deed in an assignation of debt does not exclude the implied warrandice of debitum suhesse} It is said that in redeemable and personal rights the measure of the warrandice is the sum actually paid ; ^ but this doctrine is disputed by Erskine.' 190. Two debts being assigned for a full price, one with warrandice at all hands, and the other with warrandice that the debt shall be good, valid, and effectual to the assignee ; Has the assignee any claim against the cedent, under either assignation, on the bankruptcy of the debtor? State the reason. The assignee has no claim against the cedent under either as- signation ; because absolute warrandice in an assignation of a debt, or that it shall be good, valid, and effectual, does not imply that the cedent guarantees the solvency of the debtor, which is a matter extrinsic of the obligation ; but only (1 ) that the debt exists, and (2) that the cedent's title is unexceptionable.* 191. The estates, called A and B, having been sold for a full price, with warrandice from the seller's facts and deeds, the former was evicted from the purchaser in conse- quence of a defect in the title of the seller's ancestor, and the latter was carried off by an adjudication, led upon a preferable security granted by the seller ; Has the purchaser any claim under the warrandice against the seller? (1) The purchaser has no claim against the seller in respect of the estate of A ; because the eviction was not occasioned by the fact or deed of the seller, and warrandice from fact and deed does not secure the grantee against the acts or omissions of the granter's predecessors or authors, unless it be so expressed. (2) The purchaser has a claim under the warrandice in respect of the estate of B, entitling him to demand that the seller shall instantly procure a discharge of the security and adjudication ; or, 1 Ferrier, 16th May 1828, 6 S., 3 Ersk., 2, 3, 30. 818. * Barclay, M., 16591 ; Liddel, M., 2 Stair, 2, 3, 46 ; Bankton, 2, 3, 16594. 124 ; Menzies Led., 1G3 (158). Digitized by Microsoft® WARRANDICE. 91 if the adjudication has become irredeemable, pay the value of tlie estate at tire date of the eviction ; the ground of the claim being, that the warrandice expressed in the conveyance gives protection against the acts or deeds, past or future, of the seller ; and that the eviction of the estate resulted from a deed granted by him . 192. If a husband, after burdening his estate with heritable securities, were to dispone it gratuitously to his wife in liferent, without express warrandice, or with abso- lute warrandice, or with the clause " I grant warran- dice;" Would she be entitled to be relieved of the interest of the securities ? (1) If no warrandice were expressed, the wife's right would be burdened with the interest of the securities ; her right being gra- tuitous, in which simple warrandice is implied. (2) If the wife's disposition contained a clause of absolute warrandice, she would be entitled to be relieved of the interest ; because express warrandice prevails over that which is implied. ' (3) If the disposition contained the clause "I grant warran- dice," the wife would be entitled to relief of the interest ; because that clause imports absolute warrandice, whatever may be the nature of the transaction. 193. Where a deed contains a clause expressly exempting the granter from warrandice, may he grant an incon- sistent deed ? No ; because posterior deeds inconsistent with the grantee's right are deemed fraudulent ; and " no agreement, let it be ever so explicit, ought to protect against the consequences of fraud and deceit."^ 194. The rental of lands allocated for a widow's jointure be- ing warranted to amount to a certain sum yearly, is the warrandice incurred by a diminution of the rental caused by a damnum fatale ? 1 Strong, 29th Jan. 1851, 13 D., 2 Ersk., 2, 3, 27. 548. (z). (2) The same had been found in a case less faTonrable for giving effect to the principle ; Coventry, 8th July 1834, 12 S., 895. Digitized by Microsoft® 92 WARRANDICE. Yes ; " because, in the case stated, the granter is jjrecisely ob- liged that the widow shall in no case have a less jointure than the yearly sum mentioned in the contract. "'(a) 195. When does a claim upon the warrandice arise ? A claim upon the warrandice does not arise till eviction, re- sulting from the deeds of the granter, if the warrandice be from fact and deed, or from a defect in the right, if the warrandice be absolute, unless there be a plain ground of distress. ^(6) 196. Contravention of warrandice being incurred by eviction, is it sufficient for the seller to offer payment to the purchaser of the price he paid for the subject, with interest from the time of eviction, and his expenses of defending the action ? State the reason. The offer is not sufficient ; because warrandice is intended not merely for indemnifying the purchaser, but for securing him against all the consequences of eviction ; and he is therefore en- titled to the full value of the subject as at the time of eviction, together with the whole loss and damage he may have sustained.' 197. Is it a sufficient answer on the part of a seller to an ac- tion brought against him upon the warrandice, that the action of eviction was not intimated to him by the purchaser ; or that the purchaser refused to defend that action ; or that, having defended it, he omitted to state the proper defence ? It is not a good defence that the purchaser did not intimate the action of eviction,'' at least it is so stated by Erskine f but in 1 Ersk., 2, 3, 29. * Clerk, M., 16605 ; Dewar, M., 2 Ersk., 2, 3, 30. 16637. (c) 3 Ersk., 2, 3, 30. » Ersk., 2, 3, 32. (a) The warrandice, however, would not protect the widow against addi- tional taxes imposed by statute. (5) That is, some cause of eviction arising from deeds of the granter in- consistent with the warrandice. (c) The point in Dewar was not as to intimation. A bond had been granted over the subjects by the disponer's author, which had been allowed to remain personal, and of which the disponer was not aware. He was not himself infeft, and in his disposition he assigned the open procuratory in his Digitized by Microsoft® WAKRANDICE. 93 any view it would be a highly imprudent omission ; nor is it a valid defence that he refused to defend it ;' but it is a good answer to the action against the seller that the purchaser defended the action of eviction, and omitted to state the proper defence.^ 198. Where the purchaser has undertaken the defence of an action of eviction, is he entitled to payment of his ex- penses from the seller when the defence has been suc- cessful, the pursuer being insolvent ; or when it has been unsuccessful ? (1) When the defence has been successful, the purchaser is not entitled to his expenses from the seller ; because no claim on the warrandice arises till eviction.^ (2) When the defence has been unsuccessful, and not mis- managed, the seller is bound to indemnify the purchaser for his expenses ; because these are a pstrt of his loss and damage result- ing from the eviction. 199. Where a purchaser sustains loss in consequence of a latent defect in goods for which he has paid a full price, has he any claim against the seller, the defect being unknown to either party ? The purchaser has no claim against the seller for loss on the goods occasioned by a defect unknown at the time of the sale ; the goods, with all their faults, being at the risk of the purchaser unless the seller shall have given an express warranty of the quality or sufficiency of the goods, or unless they have been ex- pressly sold for a specified and particular purpose, in which case the seller is considered, without such warranty, to warrant that the same are fit for such purpose.' 1 Downie, 31st Jan. 1815, F.C. 3 Inglis, M., 16633. 2 Inglis, M., 16633. * 19 and 20 Vict., c. 60, § 5. favour. Had the dispones at once completed his right by infeftment, he would have excluded the hond ; hut he delayed doing so, and in the mean- time the hond was made real ; and the disponee having been obliged to pay it, brought an action of relief against the disponer, who pleaded that the eviction having arisen not from any act of his and solely through the delay in completing the disponee's right, he was not liable ; but the Court found that he was. Digitized by Microsoft® 94 EEGISTRATION. (3) Clause of Registration. 200. Enumerate tlie diiFerent parts of wliich the clause of re- gistration for preservation and execution consists. (1) The consent to registration in the judges' books ; (2) the purpose of registration, being for preservation and that all neces- sary execution upon six days' charge may follow; (3) upon a decree to be interponed to the deed ; and (4) the appointment by the granter of a procurator to appear fictione juris for him, and consent to decree.(e) 201. From what origin is the clause of registration for exe- cution said to be derived ; and on what principle does diligence on a registered bond proceed? (1) The clause of registration for execution is said to be de- rived from the juratory clause of performance and consent to ex- communication inserted in deeds before the Eeformation, on which, upon failure of the granter, letters of cursing were issued against him by the authority of the Ecclesiastical Courts, followed, in the (e) It is not now necessary to insert those particulars in the clanse of re- gistration. In the form of a bond and disposition in security in Schedule (A), annexed to the 10 and 11 Vict., c. 50, the clause is simply " I consent to registration for preservation and execution," which it is declared, by § 2 of the Act, " shall import a consent to registration and a procuratory for regis- tration in the books of Council and Session, or other judges' books compe- tent for preservation, and that letters of horning on six days' charge, and all other necessary execution, may pass on a decree to be interponed thereto." The Schedule (A), annexed to the Act 10 and 11 Vict., c. 48, contains the following form of tlie clause to be inserted in dispositions, viz. — " I consent to registration hereof for preservation {or for preservation and execution),'' which is by § 3 of the Act declared to have the same import and meaning as is above stated ; and by " The Titles to Land (Scotland) Act, 1860," g 30, it is declared that " The short clauses of consent to registration for preservation, and for preservation and execution, set forth in the Schedule (A), annexed to the Act 10 and 11 Vict., c. 48, shall, when occurring in any deed or writing whatever, have the like meaning and import as by the said Act is attributed to them when occurring in any disposition, convey- ance, deed, or instrument referred to in the first section of the said Act." The short form may therefore now be used in all deeds containing a clause of registration. Sec Dimpsey, 17th .July 1863, 1 M'P., 1126. Digitized by Microsoft® REGISTRATION. 95 event of his continuing " obstinate and unrepentant," by letters of caption in the sovereign's name.^ (2) A registered bond is, in principle, a judicial decree pro- nounced, fictione juris, on the appearance of the granter, by his procurator, before the judge, and consenting that sentence should go out against him, conform to the deed. The decree being regu- lated by the terms of the deed, and the deed being the only war- rant of the decree, it is copied into the Books of the Court, and an extract of the procedure given out, under the hands of the clerk for the purpose of execution.^ 202. What reason is there to suppose that the formality of attendance and consent to decree of registration were ever observed? (1) In Queen Mary's Instructions to the Commissaries, given in the year 1563, it is declared to be lawful to the commissaries to cause their clerks register contracts, obligations, and other writs, given in scriptis, subscribed by the parties, or by notaries at their command, in their books ; but it is provided that no contract, ob- ligation, or other writ, be received or registered without the judge being present to hear the same read, and interpone his authority thereto.' (2) The Act 1584, c. 4, dispensed with the sealing of deeds which contained a consent to registration in any judge's books, on the ground that registration is " ane greater solemn act nor the sealing thereof;" the solemnity of the act consisting in the grantor's appearing before the judge to assent to decree in terms of the deed, and thus adopting it in presence of the Court. (3) The Act 1597, c. 269, ordained that all hornings, inhibi- tions, &c., should be registered in time coming, either judicially or before a notary and four witnesses besides the ordinary clerk. (4) By Act of Sederunt, 9th December 1670, warrant is granted to the Lord Clerk -Eegister, and his deputes, to insert the consent of advocates as procurators to the registration in bonds, contracts, and other writs given in for registration, as they were in use to do formerly, and to give out extracts thereof, notwithstanding that the advocates do not subscribe their consent ; and it is declared, 1 Ross Lect., i, 96 and 105, et seq. ^ Balfour's Pract., 658 (sui voce 2 Ross Leot., i, 98, et seq. Commissariat). Digitized by Microsoft® D6 BEGISTRATION. that extracts cannot be quarrelled upon the ground that the advo- cates' consent to the registration is not subscribed. 203. Mention a form in English practice analogous to the Scottish decree of registration. The English warrant of attorney to confess a judgment is analogous to the decree of registration, being a mandate granted by the debtor to some nominee of the creditor, to consent that de- cree be pronounced against him in favour of the creditor for the amount of the debt.' 204. What is the meaning of the words, " and for the greater security, I consent, &c.," introductory to the old form of the clause of registration, as in Dallas' Styles? The words, " for the greater security,'' referred to the ancient rule of law, by which priority in preferences depended on the date of the decree and not of the diligence.^ 205. What is the meaning of the blank and the " &c.," oc- curring in the clause, '' and thereto constitute my procurators, &c." ? The blank is for the name of the granter's procurator appointed for the purpose of consenting to decree of registration ; and the " &c." is in place of the full enumeration of the procurator's powers, which formerly were subjoined to the clause.' 206. On what principles were deeds formerly not registrable after the death of the granter or grantee, and by what authority was registration made competent after the parties' decease ? The principles on which deeds formerly could not be registered after the death, either of the granter or grantee, were, that the proouratory for registration, being a mandate, fell by the death of the parties ; and that registration was a decree of consent, which required actor et reus.* The inconvenience resulting from this rule was removed, as regarded the grantee, by the Act 1693, c. 15, 1 Ross Lect., i, 96; Menzies Lect., 3 Menzies Leci, 158 (163). 166 (161). '■ Koss Lect., i, 117, 2 Ross Lect., i, 102, 112. Digitized by Microsoft® REGISTRATION. 97 which authorised the registration of writs, after tlie death of the creditor, upon production of the title of the holder, whether a ser- vice, confirmed testament, or assignation; and by the Act 1696, c. 39, it is declared that all honds, dispositions, and other regis- trable writs may be registered after, in the same manner as before, the granter's death. In practice, the provision in the former of these acts, requiring the production of the title, is now disregarded. 207. May deeds be registered for preservation, publication or execution, without a clause of registration ? (1) Without a clause of registration deeds cannot be registered for preservation in the Eegister of Deeds ; but they may be regis- tered in the Eegister of Probative Writs. '(/) (2) All deeds, instruments, and decrees, relating to heritage,^ and long leases, assignations, and extracts thereof,' may be regis- tered for publication in the Eegister of Sasines, without a clause of registration. (A) (3) Crown charters are registered in the Eegister of the Great Seal, without a clause. (4) Deeds cannot be registered for execution without a clause for that purpose ; except protests of bills and notes,* and Exche- quer bonds.^ 208. What is the duration of a charge on a registered deed or bill protest ; and in what cases is it limited to six days, without an express consent ? Without an express limitation, the duration of a charge on a registered deed is fifteen days ; but the charge upon a bill protest, and upon registered deeds granted under the Lands Transference Act,(i) the Heritable Securities Acts, and the Eegistration of 1 1698, c. 4. i 1681, c. 20 ; 1696, c. 36, 12 Geo. 2 21 and 22 Vict., c. 76. (^) III, c. 72. 2 20 and 21 Vict., u. 26, § 1- =19 and 20 Vict., c. 56. (/) Deeds recorded in the Register of Probative Writs are given back to the parties, instead of being retained. (s) ?§ 1 and 36. This Act (Titles to Land Act, 1858) applies to lands not held burgage. The 23 and 24 Vict., o. 143 (Titles to Land Act, 1860) contains similar provisions as to lands held burgage ; §§ 2, 3, and 13. (A) But in certain oases warrant of registration is required, (t) 10 and 11 Vict., c. 48, and c. 49. G Digitized by Microsoft® 98 REGISTRATION. Leases Act, are limited to six days, without an express consent to that effect. 209. Enumerate the registers for puhlication. (1) G-eneral and Particular Eegister of Sasines ; (2) Eegister of Entails ; (3) Eegister of Adjudications ; (4) General and Par- ticular Eegister of Inhibitions ; (5) Eegister of Interdictions ; (6) Eegister of Inventories of Heirs entering cum leneficio inven- tarii;(k) (7) Eegister of Interruptions of Prescriptions. 210. Enumerate the local registers ; specify the description of instruments for which they are respectively in- tended ; and state which of them are transmitted to the G-eneral Eegister House. (1) County Eegister of Deeds, for all descriptions of deeds containing a clause of registration, except charters,(Z) and for bills and notes. Extracts from these registers do not warrant execution against parties not resident within the jurisdiction. (2) County Eegister of Probative Writs, for all deeds not con- taining a clause of Eegistration. (3) Particular Eegister of Sasines, for instruments relating to lands within the district. (4) Particular Eegister of Inhibitions, for inhibitions against parties having lands within the district. (5) Burgh Eegister of deeds ; and (6) Burgh Eegister of Probative Writs, for deeds and writs by burgesses or parties domiciled within the burgh. (7) Burgh Eegister of Sasines, for subjects held in burgage tenure. The Particular Eegisters of Sasines and Inhibitions for the county are transmitted periodically to the General Eegister House, the others remaining permanently in their respective localities. 211. What statutory provisions have been made for the security of the local registers ? The sheriffs of the counties, and the chief magistrates of the (J) In consequence of the alterations in the practice as to the service of heirs, introduced by the 10 and 11 Vict., c. 47, this register is now in disuse. {I) And deeds of entail. Digitized by Microsoft® REGISTRATION. 99 burghs, are required to make an annual examination into the pro- gress and state of the different records, and to report their condi- tion, and the state of the buildings containing the records, to the Court of Justiciary ; and all the books must be got from the General Eegister House, and be authenticated by the Lord Clerk- Eegister.^ 212. Within what time must a deed be recorded after pre- sentation ; may it be borrowed up after its ingiving ; and if so, upon what conditions ? By the Act 1685, c. 38, the deed must be recorded within twelve m.onths after the date of presentation ; but it may be (m) borrowed up within six months if it has not been booked. The Act applies only to deeds recorded in the Books of Council and Session. After a deed has been recorded, it cannot be removed from the register unless by warrant of the Court, which will be given only on proof of necessity, and of the insufficiency of an extract. If production of a deed is required within a reasonable distance, it is produced under custody of an officer of Court ; and when it is necessary to send it to a great distance, surety must be given for its safe return within a certain period, and an extract duly authenticated is, in the meantime, lodged in its stead.^(m) 1 49 Geo. Ill, c. 42. 2 Menzies Lect., 164 (170), et seq., and cases cited. [The following clause occurs in the Bill which was brought into Parlia- ment by the Lord- Advocate (Baillie), "To extend certain provisions of ' The Titles to Land (Scotland) Act, 1858,' to Titles to Land held by Bur- gage Tenure, and to amend the said Act ;" — § 27, It shall not be necessary to record in the Books of Council and Session, for the purpose of preserva- tion, or of preservation and execution, any writ competent to be recorded in the General Eegister of Sasines, and which shall have been so recorded, provided that such writ, when presented for registration in the said register, (m) See supra, Ans. 34, notes [x) and (y). [n] A petition lately presented for warrant to the Lord Clerk-Register, or other oiEcer of records, to exhibit in the Court of Chancery in England certain deeds recorded in Books of Council and Session, was, after communi- cation with the Vice-Chanoellor, refused, on the ground that the Court's control over the deeds could not be insured if they were sent to England ; Young, 2d Feb. 1866, 4 M'P., 344. In a prior case (Shedden v. Patrick), deeds so exhibited in the Probate Court had been taken from the oflBcer, and detained. g2 Digitized by Microsoft® 1 00 EEGISTEATION. 213. Does action lie at the instance of a merchant against a trade protection society for publishing his name in a list of dishonoured bills copied from the Eegister of Protests, for the information of its members, the bill in question having been granted for the accommoda- tion of another ? Action in the ordinary case does not lie against the society ; because all records are by statute made patent to the public, and decrees of registration being equally open to the public, may be published as decrees inforo contentioso.^ (4) Testing Clause. (See Solemnities of Deeds, page 1.) (o) shall have a warrant of registration written thereon, in, or as nearly as may be in the form of Schedule K, hereunto annexed, specifying that the writ is to be recorded for preservation, or for preservation and execution, as well as for publication, and signed by the person in whose behalf the writ is pre- sented, or his agent ; and the writ, with such warrant thereon, being so re- corded, shall not be re-delivered to the ingiver, but an extract only shall be delivered, and the writ itself shall be retained by the keeper of the said re- gister, and shall be preserved in the same manner as writs recorded in the Books of Council and Session, in virtue of a procuratory of registration or of a clause of consent to registration, are preserved ; and such registration in the said register shall be held to be registration for the purpose of preserva- tion, or of preservation and execution, as well as publication, and shall have all the legal effects of registration in the Books of Council and Session, as well as of registration in the General Eegister of Sasines : Provided always that no writ shall be recorded for the purpose of execution which does not contain a procuratory of registration or a clause of consent to registration for the purpose of execution in the body of the writ ; and extracts of all such writs so recorded shall make faith and be used in all cases and in all respects in like manner as the recorded writs themselves, except when any such writs so recorded shall be offered to be improven. (Schedule K.) Eegister on behalf of B for the purpose of preservation (or of preserva- tion and execution) , as well as of publication. (Signed) A B, (or) D, W.S., Agent of the said A B. 1 Newton, 10th March 1846, 8 D., 667, reversed in H. of L., 17th Feb. 1848, 6 Bell's App., 175. (o) By " The Companies Act, 1862," the memorandum and articles of Digitized by Microsoft® BLANK WRITS. 101 X. BLANK WRITS. 214. What is the effect of blanks in settlements, and of bonds blank in the creditor's name ? State the reasons. (1) Important blanks in settlements annul (p) the deed at common law ; " because the duty of a Court is to construe and give effect to a party's expressed intention, not to construct for him a deed which he failed to make."^ But where the sub- stance of the granter's meaning can be ascertained, the occurrence of blanks will not be allowed to defeat his intention ; and where a deed containing blanks, even in essentials, confers on trustees or other persons power to fill up the blanks (r) it will be effec- tual.2 1 Dickson Evid., i, 352 (§ 645). and S., 328, p. Lord Wynford (re- 2 Ewen,(s) 11th Nov. 1830, 4 W. versing 6 S., 479). association, and by the Merchant Shipping Act of 1854, bills of sale or venditions, and mortgages of ships, do not require testing clauses in the Scotch form ; supra, Ans. 8, note (e), (p) It is not here meant that such blanks necessarily annul the deed in toto. Settlements generally contain provisions separate and independent of each other ; and where they do, such of the provisions as are not liable to the objection stated are valid, while the others are not. if) The expression here used is perhaps not the most appropriate to convey the meaning intended, and it is just possible may cause misappre- hension, as such blanks in settlements are never filled up in the deeds ; and the practical question that arises is, whether some provision or bequest (generally fot charities), being indefinite or incomplete in its terms, is void from uncertainty, or power has been given to the trustees or others to supply what may be wanting, and so make it effectual. («) In Ewen, the deed did not confer power on any one to supply the particulars that were left blank. The Court of Session held they were un- important, and might be supplied notwithstanding the absence of such con- ferred power, and so sustained the provision ; but the House of Lords re- versed. In connection with this subject, reference may be made to Mags, of Dundee, 26th June 1857, 19 D., 918 ; as reversed, H. of L., 11th May 1858, 20 D., 9, 3 Macq., 134, where it was held that the purpose to found an hospital could be gathered from testamentary writings, though the word " hospital " had been deleted, and that the Court of Session should prepare a scheme for carrying out the purpose ; and observed, that in con- struing holograph testamentary writings, words deleted may be looked at as Digitized by Microsoft® 102 BLANK WEITS. (2) Bonds blank in the creditor's name are null under the Act 1696, c. 25, for the reason, that as such deeds passed by de- livery from hand to hand, they were secure from the plea of compensation ; their contents could not be attached by diligence ; and they could be used for evading the law of deathbed.^ 215. What are the provisions of the Act 1696, c. 25, anent blank bonds ? It statutes and ordains that " No bonds, assignations, dispo- sitions, or other deeds be subscribed blank in the person or per- sons name in whose favour they are conceived, and that the fore- said person or persons be either insert before or at the subscribing, or at least in presence of the same witnesses who are witnesses to the subscribing before the delivery, certifying that all writs other- ways subscribed and delivered blank, as said is, shall be declared null ; " " declaring that this Act shall not extend to the indorsa- tion of bills of exchange, or the notes of any trading company." 216. What is the description of writings contemplated by the Act 1696, and what kind of writs are exempted from its provisions ? The deeds contemplated by the statute are formal deeds, re- quiring the observance, when not holograph, of the statutory solemnities of authentication. Accordingly, bills and notes blank in the payee's name,^ indorsations of bills, drafts and orders m re mercatoria, and bills of lading, are exempted ;"^ but the docu- ments usually termed iron scrip, it is thought, are struck at by the Act.*(0 217. A subscribed and delivered to B an obligation, under- 1 Dickson Evid., i, 353 (§ 649). * BoYil, 29tli July 1856, H. of L., 2 OgilTie, 28tiL June 1804, M., 3 M'Q., App. 1, p. the Lord Chan- App., " Bill of Exchange," No. 17. oellor. 3 Dickson Evid., i, 354 (?§ 651 and 786). showing what was in the mind of the testator, and that they may even sometimes be restored, it being a question of evidence whether the deletion was intentional or not. (t) The documents here referred to are invalid, but not on the ground here stated. See note (m), below. Digitized by Microsoft® BLANK WRITS. 103 taking " to deliver, when required, 200 tons of iron to the party lodging this document with me ; '' and B blank indorsed and delivered the writ to C, in security of advances ; Has a good title to sue for delivery of the iron ? State the reason. No ; because the document is stmck at by the Statute as being blank in the creditor's name, and even although the credi- tor were named in the writ, it is not transferable by indorsa- tion.''(M) 1 Bovil, supra; Commercial Bank, 27tli May 1859, 21 1)., 864. (m) In the case of tlie Commercial Bank, referred to, the obligation was not blank in the party's name ; its terms were — " To Joseph Dods, Esq., Glasgow. " — (date) — " Sir, "We hold on your aoconnt, and undertake to de- liver, when required, to your order, 200 tons of railway chairs, &c., we having been paid the price by Mr MacCuUoch. We are," &c. Six years had elapsed before any claim had been made on it. The Court expressed an opinion that it had been granted, not in re mercatoria, but as a means of raising money ; but the ground of judgment was, that it had not been validly transmitted to the pursuers. In the earlier cases of Bovil, 21st Feb. 1854, 16 D., 619 ; Mackenzie, 7th Dec. 1853, 16 D., 129 ; and Dimmock, 1st Feb. 1856, 18 D., 428, it was deliberately held in the Court of Session that such documents are not struck at by the Act 1696, and were transmis- sible by delivery or indorsation, according to circumstances ; but when the case of Bovil went to the House of Lords, although the judgment of the Court below, sustaining the claim for delivery of the iron, was afiSrmed, it was so on special grounds, and the principle of the judgment was not aflBrmed, the Lord Chancellor (Cranworth), on the contrary, observing that he held the document to be invalid. It was after that judgment in the House of Lords, and in conformity with the views there expressed, that the case of the Commercial Bank was finally disposed of in the Court of Ses- sion. The objection therefore to such documents, when blank, is at com- mon law, and not under the statute. Mr Skelton, in a note (Dickson's Evid., § 786), expresses an opinion, that had the document founded on in Commercial Bank " passed between parties to a sale, it would probably have been regarded as a writ in re mercatoria," in respect of the party being named. The opinion of Lord Chancellor Cranworth .was very strong against such documents being so regarded when blank, but there are reasons in that case which do not apply to the other. It may farther be observed, that although a special usage of trade may confer the privilege of transmis- sibility by indorsation, such privilege is not necessarily inherent in docu- ments granted in re mercatoria, one evidence of which is, that it reqrxired a special statute to make promissory-notes so transferable. Digitized by Microsoft® 104 BLANK WRITS; 218. If a completed entail were blank in the first substitute's name, or blank in the fourth substitute's name, would it be binding on the second substitute, he being the institute's heir-at-law; or would he be entitled to take up the estate as heir in fee-simple ? (1) If the entail were blank in the first substitute's name it would not be binding on the second substitute, who, being the institute's heir-at law, could make up titles to the estate unfet- tered by the entail.' (2) If the entail were blank only in the fourth substitute's name, it would be binding on the second ; as a blank in the name of a postponed substitute does not annul an entail as regards sub- stitutes nominated before him.^ 219. Is it a relevant objection to a bond that the sum was not filled up when it was signed ? No ; there must be an averment that it was filled up without the consent and authority of the granter, or an allegation that it was not completed before delivery. ^(a;) 1 Aberuethie, 16th Jan. 1835, 13 3 Baillie, 25tla ^June 1828, 6 S., S., 263 ;(d) Kennedy, M., 1681. 1016 ; E. of Buchan, 25th Feb. 1857, 2 Abernethie, supra. 19 D., 551. [v) The case of Abernethie refers properly to the second branch of this Answer. The principle of the rule here stated was applied in Shepherd, 24th Jan. 1844, 6 D., 464, where the name of the first substitute or condi- tional institute being written on an erasure wherever it occurred throughout the deed, it was held that this was a vitiation in substantialibus, and fatal to the whole entail. This case, however, was one, not under the statute, but at common law. (i) The important point in this question is. On whom does the onus lie ? Must the pursuer prove that the blank was not, or the defender that it was, filled up with his, the pursuer's, authority ? In E. of Buchan (cited) it was held that the pursuer was not bound to put in issue anything but that the blank was in the deed when subscribed, and that the defenders must show that it was filled jip with his authority : but the case was peculiar, the deed being not an ordinary bond for repayment of a principal sum, but a redeem- able bond of annuity and disposition in security, and the blank left being for the redemption money, the amount of which, it was said, had not been calculated at the time of signing. Lord Gowan expressed doubts as to adopting the rule as to onus as a general one. In Baillie (also cited) a somewhat diiferent view seems to have been taken as to what it is incum- Digitized by Microsoft® BLANK WRITS. 105 220. A grants to B a letter of guarantee "for any goods which you may furnish to C, to tlie amount of £ ; " Is the guarantee hinding ? The guarantee is binding, being held not to be blank in sub- stantialibus, but to contain a proposed limitation, which had been departed from.^ 221. Where blanks in a settlement are filled up by a person authorised by the deed itself, or in compliance with the grantor's directions contained in a separate im- probative writing ; What is the effect of the deed, the blanks being essential ? (1) Where the blanks are filled up by a person authorised by the deed itself, it is effectual ; on the principle that it is lawful for a testator to put the disposal of his property at the will and discretion of another.^(2/) (2) Where the blanks are filled up under separate directions the deed is invalid, both under the Act 1696, and at common law.^(z) 1 Buchanan, 17th June 1828, 6 Ewan, 17th Nov. 1830, 4 "W. and S., 986. S., 346 ; p. Lord Wynford. 2 Hill, 14th Dec. 1824, 3 S., 389 ; 3 Pentland, 22d May 1829, 7 S., 640. bent on the pursuer of such an action to aver and prove, hut the case which referred to an ordinary bond is very shortly reported. (y) The questions involved in the cases here referred to were not as to filling up blanks in deeds, but whether certain bequests or directions were void from uncertainty. In Hill there was no blank in the deed. It con- tained a general direction to the trustees to apply the residue for behoof of such charitable institutions as they might think proper ; and this was held effectual. As to Ewan, see supra, note (s), under Ans. 214. (2) 1. Under the Act 1696. — In the case of Abernethie, supra, Ans. 218, one question raised, hut not requiring to be decided, and on which the judges expressly reserved their opinion, was whether a deed signed with a party's name blank, which was afterwards filled up in terms of a separate letter of in- structions, was valid under the Act. Without venturing to anticipate what the judgment may be when the point arises, there seems to be ground for maintaining the validity, under the Act, of a deed with the name inserted in the manner here slated. All that the Act requires is that the name "be insert, in presence of the same witnesses who are witnesses to the subscribing before the delivery." Now, assuming the condition as to the witnesses to have been Digitized by Microsoft® 106 BLANK WRITS. 222. Where a person executes a settlement, blank, in name of one of the substitutes, and afterwards executes a observed, and the insertion of the name to have been before delivery, then the only question that could arise would be as to the authority to insert the name, but the Act contains no provision as to this, so that it could be given, and, if necessary, proved in the same way as the authority to prepare the deed, for which there is no prescribed mode, and of which a holograph letter (as in Abernethie) seems to afford sufficient evidence. The granter's pre- sence at the insertion is not required by the Act, but might also be sufficient for the purpose. Further, if it was set forth in the testing clause that the name had been inserted in presence of the subscribing witnesses before de- livery, and the writer of the name, where different from the writer of the deed, named and designed, the deed would seem to be in all respects proba- tive, and the Act sufficiently complied with. Without such precautions in the testing clause, the onus of proving that the Act had been complied with might, in case of challenge, be laid on the party proponing the deed. It does not appear from the report whether in Kennedy the provision of the Act as to the witnesses had been, and from the Session papers it would ap- pear that in Abernethie it had not been, complied with. There does not seem to be very much information on this subject in the books, but in Donald- son, M., 9081, it seems to have been held that all that was necessary to sup- port such a deed was to prove that it had been " filled up with the disponee's name in the presence of the witnesses signing to the same." It may also be observed that, in Kennedy, the writer of the docquet on the disposition was the person thereby authorized to insert the names in the disposition itself, so that the absence of the witnesses to the subscribing of it may not impro- bably have been the reason why the course adopted was followed instead of the natural one, of at once inserting the names in the disposition. 2. At common law. — Pentland's case, here cited, is not in point. Two deeds, one complete, and the other having blanks left to allow of alteration, were prepared without instructions from the grauter, and sent to him in India, and both were said to have been signed and returned by separate conveyances. The complete deed never arrived, but the other did, signed, and, as was said, approved of, whereupon the agents filled up the blanks, so as to make it cor- respond with the other. The deed was found nuU ; but, without the other deed, of which time was allowed to prove the tenor, there was not even by inference any direction to fill up the blanks, or evidence of how it was to be done ; moreover, it could not be done before the same witnesses ; and in the later case of Abernethie, supra, where however the letter was holograph, the point as to inserting a party's name was held to be open. This Answer, in its second branch, does not meet the question, the im- probative element being omitted ; but keeping in view the principles adopted in the cases cited, supra, note (n), p. 23, as to separate writings re- lating to deeds of settlement, the distinction pointed at in the Question in respect of improbative writings is at least too broad at common law. Digitized by Microsoft® BLANK WRITS. 107 docquet written on the deed, but before diiferent wit- nesses, mentioning whose name he wished inserted ; Is the blank substitution validly filled up, and is the docquet eiFectual to any extent ? The blank substitution in the deed is not validly filled up ; because the Act 1696 requires that blanks be filled up before the same witnesses who are witnesses to the subscribing before deli- very ;(6) but the docquet may be sustained as an independent deed of substitution in favour of the persons named in it.^(c) 1 Kennedy, M., 1681. (6) This is a correct statement of the law, hut it will he ohserved that the point here answered is not that put in the question, which mentions the witnesses to the authority, a matter ahout which the Act says nothing, but does not state whether or not the blank was filled up before the same wit- nesses who were witnesses to the subscribing ; on the answer to which de- pends in this respect the question as to the validity of the insertion. See note (2), under Ans. 221. (c) It is to be regretted that the author of the work did not throughout this title keep the questions as to deeds under the Act 1696, c. 25, and those at common law, separate, as this would probably have brought out more clearly the distinctions between the two classes of cases. The Act deals ex- clusively with the grantee's name and its insertion in the deed, which, if not made before subscription, must be before delivery, and in that case in the way prescribed. The common law applies to other material blanks as well as the name, such as the subject conveyed, the sum in bonds, &c., ap- pearing in deeds of settlement after delivery, but does not require that these particulars shall necessarily be inserted before subscription ; and the questions that arise under it are not as to filling up any blanks, or as to when or by what authority blanks had been filled up, but whether the purposes are in themselves, or can by the exercise of powers for that end conferred on trus- tees or others, either by the deed itself or by separate writing, be made so complete and definite that they can receive effect. Deeds of other descrip- tions fall under the operation of other rules ; see Ans. 219, and note (a;). Digitized by Microsoft® 108 PAET II.— DEEDS EELATING TO PEESONAL EIGHTS. I. PEESONAL BOND. 223. What was the origin and design of the penal bond? The penal bond, designed as a device for evading the prohi- bition of the Canon Law against usury, was founded on the Civil Law, which, although it likewise condemned a return for the bare use of money, allowed damages to the extent of double the value in sale, location, and certain other contracts, upon the fail- ure of the obligant in performance. The bond anciently in use in England, and bearing a close resemblance to the modern form of that writ, was an obligation by the debtor for double the amount of the loan, qualified sometimes by a memorandum, either separate or subjoined, to the effect that if the debtor paid a certain sum, at a specified date, he should be discharged, otherwise the full amount became due as damages. In Scotland, the lender took a bond without any allusion to interest, but with the penalty of double the amount upon failure, an exaction which was rigidly enforced.^ 224. "What change in the nature of the bond was produced by the Act 1587, c. 52? The Act 1587, c. 52, having permitted the taking of interest at the rate of ten per cent, per annum, or five bolls of victual, the large penalty, intended to secure to the creditor a return for his money, fell into disuse, and a clause of annualrent was intro- duced into the bond, along with a provision that the creditor ^ Eoss Lect., i, 19, et seq.; Menzies Lect., 187 (193), et seq. Digitized by Microsoft® PERSONAL BOND. 109 should have power at any time to call up the principal sum. But for about forty years at least before the passing of the Act of 1587 the penalty had been restricted to interest and damages, as appears from a case reported by Balfour, to the effect that by the law of this realm, poena conventionalis, such as a sum of money ad- jected to any obligation in name of penalty, may not be asked by any person unless " in so far as he is interestit, hurt, or staithit, because all sic panis are in ane manner usury and unhonest, made for lucre or gain."^ 225. What was the nature of the ancient Scottish obligation called the Ticket ? The Ticket was an obligation by the debtor, containing an acknowledgment of the debt, and binding him and his heirs to pay the amount to the creditor, " his heirs or assignees, or any having his order," at a specified date, and under a certain penalty. It was thus assignable by indorsation, and when blank indorsed, it was transferable by delivery.^ 226. What was formerly the criterion for determining whe- ther a bond for a sum of money was heritable or moveable ? Bonds for sums of money were formerly adjudged heritable if they contained a clause of annualrent, as having thereby a tract of future time, and being m.iid& feuda pecuniw. But where it could not be presumed that the creditor intended to allow the money to lie at interest, the natural character of the obligation prevailed, and accordingly, the criterion for determining whether the bond was heritable or moveable was the creditor's intention, as appearing from the structure of the deed, to let the money lie as an investment. And so (1) the omission of the clause of an- nualrent made the bond moveable from the first ; (2) if the bond bore interest, and had a fixed term of payment, it was moveable till the term of payment was past ; (3) if the interest was payable before the principal, the bond was reckoned heritable after the term of payment of the interest ; and (4) if the term of payment 1 Ross Leot., i, 19, et seq.; Menzies 2 Jioss Lect., i, 45. Lect., 187 (193), et seq.; Home, 22d March 1548 ; Balfour Prac, 151. Digitized by Microsoft® 110 PERSONAL BOND. was distant or uncertain, the bond was accounted heritable from the first ; because the distance or uncertainty of the term of pay- ment afforded evidence that the creditor intended from the begin- ning to employ his money at interest for a number of years. ^ 227. What changes were introduced by the Act 1661, c. 32, "concerning heritable and moveable bonds?" The Act 1661, 0. 32, enacted that all contracts and obligations for sums of money, containing a clause of annualrent, shall be held to be moveable, and belong to executors and next of kin, unless they contain an obligation to infeft, or are conceived in favour of heirs and assignees, secluding executors, in either of which cases the statute ordained the sums to be heritable, and to pertain to the heir. But it is declared that bonds with a clause of annualrent shall remain in the same condition as they were be- fore the passing of the Act, quoad fiscum, thus exempting them from the operation of the single escheat, and also as respects the rights of husband and wife, so that such bonds are not affected by the jus mariti nor by the jus relictae. 228. Enumerate the clauses of the personal bond. (1) The narrative ; (2) the obligation for the principal sum, penalty and interest ; (3) the consent to registration for preserva- tion and execution ; and (4) the testing clause. 229. What is the meaning of the granter " acknowledging receipt, renouncing the exception of not numerate money, and all other exceptions to the contrary;" a clause which occurs in the old style of the bond ? This clause was introduced to exclude the pleas which were competent by the Civil Law, founded on the contract of mutuum. The part of the lender under that contract was to deliver the money, and the acknowledgment of receipt of it discharged him of his part of the obligation. The exception of " not numerate money" relates to the case where an acknowledgment is taken without delivering thesum by number or count, which the contract of mutuum obliged the lender to do, and accordingly the borrower ' Erslc, 2, 2, 9; Menzies Lect., ]89 (196). Digitized by Microsoft® PERSONAL BOND. Ill was allowed a certain time to prove the objection, renounced by this clause of non numerata pecunia} 230, What is the liability of heirs inter se for heritable and moveable debts, and the order of liability among heirs in heritage ? A creditor has recourse against all the representatives and pro- perty of his debtor (c) and although the heir-at-law is primarily liable for the heritable debts and the executor for those of a per- sonal nature, the creditor has the option of proceeding against the heir or the executor, whether the debt be heritable or moveable, the heir when sued having relief against the executor if the debt is personal, and vice versa. But if the creditor proceed against the heirs taking the heritage, they are entitled to the privilege of discussion ; and, (1) Where in the obligation particular heirs are bound, these are first called. (2) Where the debt is made a burden on a particular subject, the heir taking that subject is primarily liable in the obligation. (3) Where one part of an obligant's estate is burdened only subsidiarie, the representative in that part is entitled to demand the previous discussion of the rest. (4) Where the creditor accepts of a corroborative obligation by the heir who is the proper debtor, the other representatives are released. (5) Where no such specialties occur, the order of liability among the heirs in heritage is as follows : — 1. The heir general. 2. The heir of conquest. 3. Heirs of provision, in the following order : — (1) The heir-male general; (2) the heir of taillie ; (3) the heir of the marriage.^ 231. To whom does a bond descend, on the creditor's death intestate, when conceived to him and his heirs, or to ' 1 Ross Lect., i, 51, 53 ; Menzies 2 Stair, 3, 5, 17 ; Ersk., 3, 8, 52, Leot., 191 (197) . 53 ; Bell's Prin., 1935 ; British Linen Co., 28th May 1850, 12 D., 949. (c) Except where the estate is entailed. Digitized by Microsoft® 112 PERSONAL BOND. his heirs-male, or to the heirs of his body ? State the reason. (1) A bond conceived to the creditor and his heirs, falls to his executors, because they are hceredes in mobilibus, and under the Act 1661. (2) When conceived to the creditor and his heirs-male execu- tors are excluded, because the destination is so qualified as to de- fine a particular class of heirs. (3) When conceived to the creditor and the heirs of his body, the bond falls to his executors ; because the destination is not such as to exclude the presumption that executors were meant, and so take it out of the Act 1661.^ 232. How may a personal bond be made to operate in favour of the heir-at-law more extensively than his right of succession in heritage ? While heritable securities fall to the creditor's heir-at-law, the arrears of interest due at the creditor's death belong to his execu- tor. But if a personal bond is taken to the creditor, and " his heirs and assignees, secluding executors from the said principal sum and interest thereof," not only does the principal sum fall to the heir, but he is entitled also to the arrears (d) of interest, thus operating in his favour more extensively than his (e) right of suc- cession in heritage. 2 233. Where a person has acquired right to two bonds, seclud- ing executors, one by service, and the other by assig- nation to him and his heirs, executors, and assignees ; May the bonds be transmitted to his executors by testament ? (1) The bond acquired by service cannot be carried by testa- 1 Ersk., 2, 2, 11 ; Menzies Leoi, 2 Miiir, M., 5524. 194 (200) ; Duffs, M., 5429. {d) The point as to interest did not arise in the case of Muir referred to. The question was whether a hond secluding executors was heritahle or moTeable, the creditor having died before the term of payment. (f) More correctly — " his ordinary right of succession ;" because an heritable bond might be made to produce the same effect. Digitized by Microsoft® PEESONAL BOND. 113 ment ; because, as such bonds are heritable of their own nature, and as service transmits rights precisely as they stood in the per- son of the deceased, the bond continues heritable in the person of the heir, and is, consequently, incapable of transmission by his testament.^ (2) The bond acquired by assignation to the party and his heirs, executors, and assignees, may be transmitted by his testa- ment ; because by that new destination the bond has been ren- dered moveable, and the ordinary course of succession restor- 234. A person who had lent a sum of money on a personal bond, taken to himself and his heirs, secluding execu- tors, and another sum on a bond in the ordinary terms to himself, and his heirs, executors, and assignees, died intestate before the term of payment of the for- mer bond, but after the term of payment of the latter ; How were the rights of his widow and children there- by aifected ? (1) The bond taken to the creditor and his heirs, secluding executors, being heritable sua natura, falls exclusively to his eldest son as his heir-at-law, whether he had survived or prede- ceased the term of payment. 1 Ersk., 2, 2, 12 ; Maokay, ML, 3224. 2 Sandilands, M., 5498. (/) Suppose a bond secluding executors was conveyed to a party, " and his heirs and assignees," without mentioning executors, will it continue heritable or become moveable in his person ? In one case where a husband so conveyed to his wife, who survived him, it w£is held that their daughter must serve heir to her mother to take up the right ; Lockhart, M., 5498. In another case where a father so conveyed to his eldest son, the bond was held to be heritable in his person ; Kennedy, M., 5499. But the judges, though unanimous in the decision, were much divided as to the grounds of it ; and there were specialties in the case, inter alia, that the assignee, being heir, would have succeeded to the bond ab intestate, in which case it would have remained heritable in his person. Brskine (2, 2, 12) leans to the opi- nion that unless the exclusion of executors be repeated in the assignation, the condition will fly off, and the right become personal ; but see Ross, 4th July 1809, F.O., where a majority of the Court held that such bonds were heritable not merely in virtue of the destination contained in them, but sua natura, and on this the question depends. In practice the conveyancer should take care not to leave room for doubt as to the destination. H Digitized by Microsoft® 114 PERSONAL BOND. (2) The bond taken to the creditor and his heirs, executors, and assignees, falls to the creditor's younger children, the widow not being entitled to any portion of it, which in a question with her is accounted heritable, as her husband, the creditor, survived the term of payment. 235. A granted a general obligation to pay the debts of B, and separately to one creditor a bond of corroboration for his principal sum and interest ; All the debts of B having ultimately become a burden upon A's suc- cession, how will his widow's claim upon his move- able funds be affected by the different obligations ? The general obligation is moveable, and being therefore pay- able out of A's personal estate, diminishes the widow's jus relictce. As regards the debt for which A had granted a separate bond of corroboration, if he predeceased the term of payment, it is likewise a burden on the widow's right ; but if he survived that term, it does not affect the jus relictce, because it contains a clause of an- nualrent, and was therefore heritable quoad the widow.' 236. May a bond excluding assignees be assigned? A bond excluding assignees may be assigned for an onerous consideration, but not gratuitously.^ 237. What is the modern use of the penalty in bonds, and how did it come to be fixed at a fifth part more ? The modern use of the penalty is to afford ready execution for the expenses of enforcing the obligation. It is restrictable al- ways to the amount of the expenses incurred in enforcing pay- ment, and it relates only to the common expenses of diligence, and not to the expenses of process. The Act 1672, c. 19, anent adjudications, enacted that the creditor should have as much land adjudged as should be equivalent to his debt and interest, and a fifth part more, because he was obliged to take land for his money ; and hence, it is thought, the proportion of a fifth for penalty in personal bonds derived its origin. 1 Koss V. Graham, 14th Nov. 1816, ^ Erst., 3, 3, 86 ; and Ivory's F.C. Notes. 2 Ersk., 8, 5, 2; Boswell, M., 12578. Digitized by Microsoft® PERSONAL BOND. 115 238. A having raised actions against his debtors B and C, on their separate personal bonds to him, obtained de- cree in absence against B, and decree inforo against G, the decrees in each case decerning for the principal sum, interest, and penalty, but there was no special decerniture for the expenses of process ; What did the decrees for the penalty cover in each case ? (1) The decree in absence for the penalty covered the ex- penses of process, because they were incurred, not in litigation, but in the steps necessary to enforce payment. (2) The decree' m/oj-o for the penalty covered only the dues of extract, and the expenses of the diligence used upon the decree, but not the expenses of the suit.'(gr) 239. Is a creditor under a bond, who has incurred expenses in maintaining the preference of the security against another creditor, entitled to be ranked for these ex- penses on the estate of his debtor under the penalty in the bond, the Court having found no expenses due in the litigation ? Yes ; because the rule, that expenses of process incurred in discussing points connected with the security are not covered by the penalty, is limited to questions beween the debtor and credi- tor themselves, and does not preclude the creditor from claiming expenses necessarily incurred in defending the right against a third party .^ 240. In what cases may principal and interest be accumu- lated so as to carry interest on the whole ? ' Gordon, M., 10050. 2 Ramsay, 22d June 1826, 4 S., 737.(A) {g) There seems to be no express authority for the distinction taken in this answer. The case of Gordon, cited, supports the statement in branch 2, but not that in branch 1 ; and it is difficult to reconcile with principle the including in the penalty in the one case and not in the other the expense of proceedings (apart from that occasioned by litigation) which were equally necessary in both. The true ground of the decision in Gordon's case may have been that, the expenses not having been allowed in the former pro- cess, the matter was res judicata. See Bell's Com., i, 657. (A) See also Mein, 26th May 1829, 1 S., 653 ; and Orr, 20th June 1839, 1 D., 1046 ; and Bell's Com., i, 657. h2 Digitized by Microsoft® 116 PERSONAL BOND. (1) When a debt has been made the subject of a judicial de- mand, interest runs on the principal and interest accumulated, as at the date of the demand, the debtor being m mora after the demand.(«) (2) After denunciation, or after registration of an expired charge,(/fc) interest is due on the whole sum as accumulated in the diligence. (3) In judicial sales the debt and interest are held to be ac- cumulated as at the date of payment of the prioe.(f) (4) The principal and interest are accumulated in adjudica- tions when followed by decree. (5) The principal and interest due may be accumulated by a bond of corroboration. (6) Accumulation of interest is allowed on bankers' accounts periodically settled, and on writers' accounts of cash transactions settled annually like bankers. (m) (7) Interest is given, by decree of the House of Lords, on the interest included in judicial accumulations. (8) A cautioner paying principal and interest is entitled to charge interest upon the accumulated sum. (9) Tutors, curators, and factors are bound to accumulate money in their hands annually, so as to carry interest on the ac- cumulation.^ 241. What is the duty of judicial factors under the Pupils Protection Act, with respect to money coming into their hands, and what liabilities do they incur by neglecting that duty ? Under the Pupils Protection Act, judicial factors are required > Bell's Com., i, 353 (i, 651). (t) See as to accumulation of interest after citation ; Maclean, 15tli Feb. 1856, 18 D., 609 ; Donaldson, 3d March 1860, 22 D., 937 ; and in H. of L. (Smith) 20th July 1864, 2 M'P., 86. In Donaldson, interest was allowed though not concluded for. (k) In the register of homings. (I) See as to interest on the price in judicial sales ; Gordon, 22d Feb. 1848, 10 D., 751. (m) See Queensberry's Executors, 23d May 1822, 1 S., 428, and 21st Dec. 1826, 5 S., 180. Digitized by Microsoft® PERSONAL BOND. 117 to lodge money coming into their hands in a chartered bank,(ra) in a separate account or deposit, and if they keep in their hands a larger sum than fifty pounds for more than ten days, they are chargeable with interest at the rate of twenty per cent, on the excess ; and, unless the money has been so kept from innocent causes, they are liable to be dismissed from office, and have no claim for commission.' 242. When the interest on a bond is to be restricted to a lower per oentage than the current rate ; How ought this to be done, having regard to the interests of the lender ? A clause ought to be insei-ted in the bond, to the effect that in case the borrower should fail to pay the interest at the reduced rate, within a certain time after each term, interest at five per cent, should be payable by him, and that diligence should pass against him accordingly ; or the rate may be stated at five per cent, in the bond, and restricted by a holograph letter by the lender to the borrower, declaring that only the lower rate should be exigible so long as it is regularly paid.^(o) 243. What is the heneficium divisionis ; and what terms con- fer it ? The SeMe/scmm. divisionis is a right derived from the civil law, by which any of the obligants is entitled to insist that the whole debt shall not be demanded from him alone, but divided in equal shares among all the parties bound, and each sued for his own share only.^ The right is conferred (1) at common law, where the parties are bound simply without any express words, as " A, B and C bind themselves, and their heirs, executors and successors, to 1 12 and 13 Vict., o 51, § 5. ' Ersk., 3, 3, 63 ; Menzies Lect., "i Dufif's Treatise on Deeds, 16. 207 (211). («) Or in a bank established by Act of Parliament. (o) The second course here suggested is the preferable one. One ob- jection to the first is, that a bond so framed could not be adapted to a dif- ferent arrangement, which in course of time might come to be desired, par- ticularly if the bond should be assigned ; while the second could be made to meet every case. Digitized by Microsoft® 118 PEliSONAL BOND. pay;"' (2) when the parties are bound conjunctly ; ^(p) (3) where they are bound each for his own share ; \r) (4) where two obli- gants bind themselves, each along with the other.''(s) 1 Ersk., 3, 3, 63; MenziesLect., 207 (211). « Farq-ahar, M., 2282. ' Campbell, M., 14626 ; Duff on Deeds, * Alexander, 28th Nov. 1827, 22; Menzies Lect., 207 (212). F.C. (6 S., 150). (p) This is a point on which there has been some difference of opinion. Professor Menzies laid down the rule as here stated. Professor Napier took the opposite view, and taught that parties bound " conjunctly " are liable in solidum equally as when " severally " is added, giving as the authority the case of Sloan, 5th Feb. 1751, M., 14680, where the point was so decided. In reference to that case. Professor Menzies remarks — " The document here was a letter inter rusticos, and it was construed according to the presumed intention of the party." The document in question referred to a sale of sheep, and bore — " Delay taking security till I come home, and I shall bind conjunctly with him." Though writs inter rusticos are privileged as to solemnities of execution, it does not seem to follow that words used in them, with nothing in the context to qualify their meaning, should not receive their ordinary construction ; and Lord Elchies, in explaining the ground of the decision, says — " "We unanimously found him liable in solidum" as that is the ordinary acceptation of the term "conjunctly." The case of Camp- bell, referred to in note 2, was decided 25th Nov. 1724, so that it was prior in date to the case of Sloan ; and though the obligant was found liable only pro rata, it was found relevant to prove by his oath " That it was the in- tentioii of the parties, and so understood by him, that he and each of the two obligants should be liable in solidum;" so that perhaps the decision is not quite in point. The question again occurred in M'KeUar, 7th June 1811, F.C, where it was pleaded that parties bound conjunctly "are only liable pro rata;" in support of which, CampbeU, supra, as also Scott, M., 14638, and Urie, M., 14626, were cited ; while, on the other side, Sloan, supra, was relied on. The document in question was a biU, but the judg- ment was rested not on that, but on the import of the word, and it was re- marked on the bench " that the old decisions seemed completely to have re- versed the meaning of the word conjunctly/." The law therefore seems to be, that parties bound conjunctly are liable in solidum; but in correctly framed deeds the expression " conjunctly and severally " is always used. (r) Where parties are bound only " each for his own share," there is no room for the application of the principle, because by the very terms of the obligation the extent of the parties' liability is fixed, and independent of each other ; but the peculiarity in Farquhar (cited) was, that the parties had bound themselves, " conjunctly and severalli/, to pay the said sum, ilk one of them for their own part;'' and the question was, whether these last words qualified the preceding ones. It was found that they did, and that each party was liable for only one-half of the debt. (s) In the case rererred to (Alexander) the obligation was constituted by Digitized by Microsoft® PERSONAL BOND. 119 244. What is an obligation in solidum ; and by what terms may it be constituted ? An obligation in solidum imports that each obligant is liable for the full amount of the obligation, and that any one of them may be selected by the creditor for payment of the whole, without regard to the solvency or bankruptcy of the other obligants. Such an obligation may be constituted by taking the obligants bound (1) severally ; or (2) conjunctly and severally ; or (3) as full debtors ; or (4) as co-principals and full debtors.^ 245. What obligations imply liability in solidum, without the use of terms importing it? (1) Bills and notes ; (2) obligations by co-partners,(<) and ob- ligations importing a joint adventure, or a joint purchase,('«) or a joint employment ; (3) obligations ad facta prcestanda ; and (4) obligations by parties bound for a town or corporation.^ 246. Where the obligants in an obligation ad factum prce- standum are sued for damages for non-performance. Whether are they liable in solidum oi pro rata? (1) Where the obligation is alternative, either to perform the fact or to pay a certain amount of damages, the obligation is divisible, and each obligant is liable only pro rata} (2) But if the obligation is not alternative, and has resulted in damages by the act of the law, it is indivisible, and each is liable in solidum.*' ' Ersk. Prin., 3, 3, 29 ; Menzies ' Ersk., 8, 3, 74. Leflt., 205 (211). ' Bell's Prin., 58 ; Denaiatoun, 2 Ersk., 3, 3, 74 ; Bell's Prin., 58, M., 14630.(2) et seq.; Mora's Notes, 118. separate letters, in these terms — " I hereby become hound to you, along with A B, to guarantee to you to the extent of £800 on account of C D." (t) This might he more accurately expressed — " Obligations competently granted by company firms, which render the partners liable jointly and severally." (u) Professor G. J. Bell (Com., ii, 654) says, joint purchase "is not even a limited partnership," and does not per se infer joint and several liability ; and it was so found, Neilson, M., 14551. Professor More lays down the rule as in this answer, and refers to a later case, Mushet, M., 14636. (x) In this case the parties were found liable only pro rata. Digitized by Microsoft® 120 PEESONAL BOND. 247. Where one of several co-obligants pays the amount of the debt, What is the extent of his right of relief against the others ? (1) He is entitled to relief from the other solvent obligants of their respective shares ; but he must communicate the benefit of any deduction or ease obtained on settlement with the creditor. (2) When any of the obligants are bankrupt, the loss must be borne by the solvent obligants rateably.' 248. What peculiar clauses occur in bonds by a tutor for his pupil ? The bond narrates the authority under which the tutor acts,(y) the power to borrow, and the occasion for borrowing, to shew that the money is in rem versum; it acknowledges the receipt of the money for the use and behoof of the pupil, and binds the pupil, and sometimes also the tutor,(2;) personally in repayment, and it contains an obligation by the tutor to procure a ratification of the bond when the ptipil attains majority. ^(o) 249. Are trustees personally liable under bonds granted by them qua trustees ? Trustees binding themselves qua trustees are not, in the gene- ral case, personally liable ; but by granting a bond or other obli- gation for a trust debt, they thereby give assurance of being pos- sessed of funds sufficient to meet it, and they are bound to retain those funds to answer the debt, otherwise they will be personally liable.3(6) ' BeU's Prin., 62. ' Bell's Com., ii, 850 ; Thomson, « Jur. St., ii, 32. 24th June 1829, 7 S., 787. (y) If it be a simple personal bond, there is no power but that inherent in the oflBoe. (z) Where the tutor ia to be so bound, the narrative should state that he is willing to be so, and he must bind himself personally and individually, and not merely as tutor. (a) Where the money is borrowed for a minor, the bond narrates that the money is received by the minor with consent of his curators, and binds him, with their consent, to repay. (6) The doctrine of liability, as here stated, probably goes a little too far. The case of Thomson, cited, was very special. The pursuer held a prefer- able security by the truster for a debt over part of the trust-estate, which by Digitized by Microsoft® PERSONAL BOND. 121 250. When a loan is made to a royal burgh, by whom is the bond granted ; what peculiar clauses ought it to con- tain ; and do such bonds infer personal liability by the granters ? A bond for behoof of royal burghs is granted by the provost, arrangement she allowed the trustees to sell, and receive the price, out of which they paid her part of the debt, and granted a promissory-note for the balance, which was left in the hands of one of their number, and lost. It also appeared that they had to some extent paid legacies. Again, signing an obligation may not necessarily imply an assurance that trustees are pos- sessed of funds, as where they borrow money on the security of the trust- estate for trust purposes ; and accordingly, they were found not personally liable where they had granted a bond and disposition in security, in which they bound themselves as trustees ; Campbell, 6th Feb. 1840, 2 D., 639 ; aff., 13th June 1842, 1 Bell's App., 428. Reference may also be made to the recent case of Lumsden, 26th Feb. 1864, 2 M'P., 695 ; as reversed in H. of L., 22d June 1865, 3 M'P., 89, where trustees were found liable as partners of a joint-stock company, in which they had bought shares. In this case much weight was laid on the terms of the contract of copartnership, and the way in which the trustees had become parties to it ; but from the opinions expressed by their Lordships in the Court of Appeal, and by the minority of the judges in the Court of Session, the law may perhaps be stated to be, that where, from the nature of the transaction and the terms of the obligation, it is clear that the parties were, and held themselves out as, acting simply in their fiduciary character, and with reference to the trust-estate and manage- ment alone, of which Campbell, supra, is an example, they will not be per- sonally liable ; but where they deal with matters extrinsic of the trust, and engage in trading or other transactions with parties who are under no obli- gation, and possibly not in a position to know or ascertain anything about the trust-estate, they will be personally liable; and further, that parties who, though described as trustees, bind themselves and their heirs, &c., in the usual style, will be personally liable. Each case must be judged of from its own circumstances, and the conveyancer's duty is to ascertain what is really intended ; and where the case admits of his doing so, to frame the deed so as to prevent all doubt as to the intention, and, as far as possible give eflfect to it. There is a distinction in some respects between a bill and a bond by trustees ; the presumption raised in the former case is much stronger from its character as a negotiable document, and probably nothing short of an ex- press stipulation to that effect would prevent personal liability for a bill, though granted by a trustee as such. It may be added, that trustees may incur personal liability without ex- press undertaking, as for expenses found due by them in a litigation, which they cannot plead that they have no funds to meet; Gibson, 25th May 1833, 11 S., 656. This is on the principle of contract. Digitized by Microsoft® 122 PERSONAL BOND. bailies, dean of guild, and treasurer, with consent of the othtT members of the council for themselves, as representing the com- munity. It recites the act of council authorising the loan, and binds the granters and their successors as representing the com- munity. The granters are liable only while they remain in office, and to the extent of the burgh property. But they are personally liable if the bond has been granted without a previous act of council. -"(c) II. CAUTIONARY OBLIGATIONS. 251. What is the leneficium ordinis^ and what terms confer it ? The beneficium, ordinis is a right derived from the Civil Law, by which a cautioner is entitled to insist that the creditor shall, before exacting payment from him, discuss or use legal means for recovering the amount from the principal debtor.^ To confer the heneficium ordinis, it is now (d) not enough that the surety be bound as express cautioner, but there must be a special stipulation in the deed that the creditor, before proceeding against the cau- tioner, shall be bound to discuss the principal debtor.^ 252. What is sufficient discussion of the principal debtor ? (1) Denunciation of debtor on lettei-s of horning, or, under the Personal Diligence Act, registration of an expired charge ; (2) poinding, or arrestment, and forthcoming of his moveables ; and (3) adjudication of his heritable estate.^ 1 Menzies Leot., 203 (209) ; Jur. = 19 and 20 Vict., c. 60, § 8. St., ii, 30. * Bell's Prin., 253. " Ersk., 3, 3, 61. (c) Sometimes bonds are granted by a factor for his constituent, for which purpose special authority by deed must be given. The bond narrates this power, and hinds the constituent to repay. A question has been started whether in this case it would be safe to use personal diligence against the constituent ; and it has been suggested that all doubt might he removed by introducing into the factory a clause consenting to the registration of the factor's bonds, for the purpose of authorising personal diligence against the constituent. It is believed this would answer the purpose. (d) This change took place 21st July 1856. Digitized by Microsoft® CAUTIONARY OBLIGATIONS. 123 253. In what circumstances is the demand for discussion pre- cluded, notwithstanding an express stipulation for dis- cussion in the bond ? It is a suificient answer to the demand for discussion, (1) that the debtor is bankrupt, and his estate sequestrated;' or (2) that he is forth of the kingdom, and has left no effects. ^(e) 254. In what obligations granted before the passing of the Mercantile Law Amendment Act is discussion ex- cluded ? (1) In obligations in which the principal and cautioner are bound severally, or conjunctly and severally, or as co-principals, or the cautioner as full debtor for and with the principal. (2) In bills and notes. (3) In judicial bonds of caution.* (4) In guarantees for payment of a debt within a certain time.* 255. "Where the bond contains an express stipulation for dis- cussion, may the creditor proceed against the cautioner before discussing the principal debtor ? The creditor must first discuss the principal debtor before ex- acting payment from the cautioner ; but the latter may be sued in the same action with the principal debtor, provided execution against the cautioner be superseded till the principal is discussed.'' 256. Is the granter of a bond, dated before 1856, to see rents 'Buchanan, 4tli March 1831, 9 * Blackwood, 10th March 1848.(/) S., 557. ^Macdonell, 7th July 1829, 7 S., ^ Elams, M., 2110. 845. = Bell's Prin., 253 ; Duff on Deeds, 26. («) In neither of the cases here referred to (notes 1 and 2) was there any stipulation for discussion; but, as has been mentioned (Ans. 251), the law was then different. In Wishart, H. of L., 12th May 1837, 2 S. and M'L., 564, it was held, reversing judgment of Court of Session, 16th May 1885, 13 S., 769, that-a cautioner was entitled to discussion of the deceased prin- cipal debtor's estate. (/) In Blackwood's case, 10 D., 920, nothing seems to have turned on the question of time. The ground of the decision was, that the obligation constituted a direct guarantee, as distinguished from a cautionary obligation. Digitized by Microsoft® 124 CAUTXONABY OBLIGATIONS. paid during the currency of a lease, entitled to the benefit of discussion ? State the reason. The granter of the bond is not entitled to the benefit of dis- cussion ; because it is not properly a cautionary obligation, but a continuing guarantee to see a debt paid within a certain time. '(3) 257. "Where A, as taking burden for B, binds him to pay a sum of money, is A liable on B's failure, A having power to bind ? B [h] is not liable on A's failure, as the obligation is only a g-uarantee of A's power to bind B. If A, as taking burden for B, had bound himself, he would have been liable, for in that case there would have been a primary personal guarantee on A to fulfil the obligation. 2 258. Is a cautioner, ad factum, praestandum, entitled to de- mand the discussion of the principal obhgant, when there is no stipulation to that effect in the bond ? Yes ; because the principal alone can perform the fact for which the obligation is granted, and all that the cautioner can do is to indemnify the creditor for the loss occasioned by the failure of the principal f and the Mercantile Law Amendment Act refers only to obligations for the payment of debt. 259. Where the bond has been executed by the cautioner, is it binding on him if the principal debtor has not subscribed, or if the subscription of the latter has not been legally attested ? State the reasons. (1) Where the bond has not been signed by the principal debtor, it is not binding on the cautioner though subscribed by 1 Urant, 22d Feb. 1853 ; 15 D., ^ MoUison's Trs., llth June 1851, 424. 13 D., 1075. ' Ersk., 3, 3, 62. [g) Opinions to the effect here stated were expressed, but the point was not properly decided nor raised. The principal had been discussed, and the question was as to the cautioner's liability for the expense attending it, the creditor's claim for which was repelled. (A) This is a misprint. It should be, " A is not liable on B's failure." Digitized by Microsoft® CAUTIONART OBLIGATIONS. 125 him ; because cautionry is an accessory obligation, which cannot take effect if there be no principal obligation. (*) (2) But it is stated by Erskine, that where the principal debtor has signed, although his signature be not legally attested, the obligation will be binding on the cautioner ;(7i-) because a cautioner may be more strictly obliged than the proper debtor.^ 260. What is the /its cedendarum actionwm; and what is the extent of the right ? The jVfS cedendarum actionum is the right competent to a cautioner, on payment of the debt, to demand from the creditor an- assignation of the debt and diligence, and all the securities held by him for the debt.^ But he is not entitled to an assigna- tion to a security held by the creditor for another debt as well as for the debt paid by him.^(Z) 261. A is cautioner for £2000 in a bond and disposition in security by B to C. B grants a second security for £1000 to C upon the same subjects, which are sold for £1500 ; What is A's liability? A is liable for £500 only ; because where a creditor makes a second loan to the debtor upon the same security, he is bound to ' Ersk., 3, 3, 64. ^ Ersk., 3, 5, 11. ^ Ersk., 3, 3, 68. (z) V. Crighton, M., 2074. (h) The reason alleged by Erskine in the passage referred to is,. — " for a cautionary obligation may be effectually interponed to an obligation merely natural." See as to bonds in name of several obligante, but not signed by all of them, infra, Ans. 278 and notes. A party who was having certain tenements erected for him, granted to the builder an obligation to pay six instalments of £100 each at certain stages of the work, " and the balance when the work is completed." The architect appended thereto an agreement " to see you paid the above instal- ments." Held that this did not import an obligation by the architect to pay the balance ; Rennie, 23d March 1866, 4 M'P., 669. [I) He would be entitled to an assignation to any surplus or balance of the security, after paying the other debt ; and might, on payment of that debt, demand an assignation to the whole security; Ersk., 8, 5, 11. A cau- tioner for rent is on payment entitled to an assignation to the landlord's right of hypothec; Stewart, 31st May 1814. F.C. Digitized by Microsoft® 126 CAUTIONARY OBLIGATIONS. rank the first bond in its natural order, and is not entitled to pre- judice the cautioner's relief by postponing it to the subsequent bond, so as to draw payment of the last out of the subjects, and throw the burden of the first upon the cautioner.' 262. When a cautioner, bound conjunctly and severally with the principal debtor and the other cautioners, pays the debt, what is the object of taking an assignation from the creditor ; and is it absolutely necessary for his re- lief? When a cautioner pays the debt, he may, without obtaining an assignation, sue for proportional relief against the rest, so that the loss shall fall on all the solvent obLigants equally. (m) But when he has got a conveyance from the creditor, he is thereby in his right, and is entitled to proceed by summary diligence against any one of the co-obligants for the whole, under deduction of his own share and his proportion of the shares of the insolvent cau- tioners, leaving to the cautioner sued his action of relief against the others. ^(ra) Further, without a special conveyance the cau- 1 Sligo, 18th July 1840, 2 D., « Ersk., 3, 3, 74 ; BeU's Com., i, 1478; see Scott, 15th March 1859, 355 (i, 301). 21 D., 737. (m) Macghies' Crs., 18th Nov. 1785, M., 14668. (n) The doctrine here stated, though it is laid down by Erskine, and borne out by Smeiton, March 1684, M., 14641, appears to be erroneous. It does not seem to be alluded to by Mr Bell, and is hardly consistent ; be- cause, while the cautioner assignee is said to be in the creditor's right, it is admitted that he must deduct not only his own share, but his proportion of the insolvent cautioners' shares of the debt, which the creditor is not bound to do. Besides, in the case supposed, the co-obligant, by taking an assigna- tion from the first, would on the same principle become entitled to turn round and demand repetition of his over-payment. It seems more correct in principle, as well as more equitable, to hold that, in a question between the co-obligants themselves, each of them is debtor only in his due propor- tion of the debt, and that this proportion cannot be increased, directly or indirectly, by any operation of the creditor or of the co-obligants. This plea was, after Erskine's time, maintained, and though overruled in the Court of Session, received effect in the House of Lords in Maxwell's Crs., 8th Feb. 1792, H. of L., 11th June 1794, M., 2136. In this case the co- ohligant had taken an assignation to trustees for his behoof. One effect of taking an assignation should be kept in view, viz., that if the assignee should be a party to any transaction favourable to the debtor, Digitized by Microsoft® CAUTIONARY OBLIGATIONS. 127 tioner cannot plead upon the separate securities held by the credi- tor, and to which the cautioner has right. ^ 263. Where the creditor has discharged the principal debtor, or one of the cautioners, has he recourse against the other cautioners ? (1) "Where the creditor has discharged the principal debtor, he has no reooui-se, because he cannot transfer his right of action against him..\o) But it is otherwise (1) where the cautioners have consented to the discharge;' or (2) where the creditor has expressly stipulated in the discharge that it shall have no effect if the cautioners are to be thereby liberated ; * or (3) where the principal debtor has been discharged, with the consent of the creditor, in a sequestration of his estates.^ (2) Where one of the cautioners has been discharged, and the obligation is dated after the passing of the Mercantile Law Amendment Act, the other cautioners will be released in all cases except where they consent to the discharge, or where it has been granted in a sequestration. ^(^) With regard to obligations granted before the passing of the Act, the rules are — (1) Where the cre- ditor has discharged one of the cautioners before the term of pay- ment of the obligation, his recourse against the rest is wholly lost ;' but (2) where the term of payment is past, the co-cautioners will be released only to the extent of the discharged cautioner's share.* ' Ersk., 3, 3, 68. = 19 and 20 Vict., c. 79, § 56. " Wallace, 13th Jan. 1825, 3 S., " 19 and 20 Vict., c. 60, § 9. 433. ' British Linen Co., 25th Jan. " Fleming, 24th May 1823, 2 S., 1853, 15 D., 314. 336. * Gilmour, 11th Dec. 1832, 11 S., ■> Smith, 22d Nov. 1821, 1 S., 159. 193. to which' his co-cautioners are not parties, he will lose his right of relief. Thus, where he indulged the dehtor with a prolongation of the term of pay- ment, and parted with a security, his relief was lost ; Hume, 12th Jan. 1830, 8 S., 295. (o) The opposite of this had been found in 1680 ; Leitch, M., 2076. (p) The words of the Act are, " a co-cautioner who may have become bankrupt," so that sequestration, though the best evidence of the fact, may not be absolutely essential. Digitized by Microsoft® 128 CAUTlONAliY OBLIGATIONS. 264. What is the actio mandati, and when does it arise ? The actio mandati is that by which a cautioner effectuates his relief against the principal debtor ; and it arises (1) on distress ; (2) on payment ; (3) before payment or distress, where the debt remains unpaid after the term of payment,(r) or where the cau- tioner's obligation is prospective and indefinite, as for the perfor- mance of an office. Where the debtor is vergens ad inopiam, the cautioner may sue for security before the term of payment.^ 265. In what cases has a cautioner no relief? A cautioner has no relief (1) if he pay a debt not justly due, or extinguished by prescription ; ^ (2) where the debt has been contracted for the benefit of the cautioner;^ (3) where he has become liable to pay ex delicto ; ^(s) (4) he has no immediate relief where he pays the debt before it is due;* (5) where the principal debtor's obligation is merely natural, the cautioner's relief is restricted to what is in rem versum of the debtor. '' 266. Where one of two cautioners, bound jointly and seve- rally for £1000, paid the whole debt, and the other became bankrupt ; For what sum is the former en- titled to be ranked on the estate of the latter ; and on what principle ? The cautioner who paid the debt is entitled to be ranked on the insolvent cautioner's estate only for £500, being the half of the debt ; on the principle that, although the cautioners are bound 1 Ersk., 3, 3, 65. * Ersk., 3, 3, 70. 2 Maxwell, M., 2115. ^ Owen, 26th Nov. 1833, 12 S., " Erskine, 5th July 1842, 4 D., 180. 1478. ° Ersk., 8, 3, 67. (r) Erskine makes the right in this case conditional on the debtor hav- ing been " taken expressly obliged to deliver to the cautioner his obligation cancelled at the same term at ■which he hath bound himself to make pay- ment to the creditor, for upon that alternative the cautioner may sue the debtor if he fail to perform as effectually as the creditor himself can do." (s) This applies to relief, not between cautioner and principal, but be- tween persons who ex quasi delicto have become liable subsidiarie for the debt and proper cautioners, as where magistrates have allowed a debtor to escape, or the granter of a bond of presentation has failed to present the debtor in terms of his obligation. Digitized by Microsoft® CAUTIONARY OBLIGATIONS. 129 in solidum to the creditor, each is liable, inter se, only for a rate- able share ; and where a cautioner pays the whole debt, his half being necessarily extinguished, it is only the other half which he pays in the character of surety for his co-cautioner that he can claim against his estate.' 267. Where one of three cautioners bound jointly and seve- rally for £900, has paid the whole debt, and another is bankrupt, what is the extent of his relief against the solvent cautioner ? The cautioner who has paid the debt is entitled to relief from the solvent cautioner of £450, being the amount of his own share, and the half of the share of the insolvent cautioner.^(i) 268. The whole debt being ranked upon the estate of one of two cautioners, and a composition of 12s. 6d. in the pound paid, Has that estate a claim of relief against the other obligant ? If the creditor, having gone first against the estate of the in- solvent cautioner, has received a dividend from his estate of 12s. 6d. in the pound, that estate is entitled to relief from the solvent cautioner to the extent of 2s. 6d. per pound, being the excess above the half of the debt which the bankrupt cautioner must have paid had he continued solvent.^ 269. Where, one cautioner obtains a separate security for his relief, is he bound to communicate it to the others ? State the reasons. (1) Where the separate security has been given by the debtor, the cautioner is bound to communicate it rateably to the others ; on the principle, that in obtaining the security, he is held to have acted as negotiorum gestor for the benefit of the whole obhgants ; (2) unless it has been given with the knowledge of the other cautioners at the time when the bond was granted, in which case. Professor G-. J. Bell says, " it is probable that the Court would 1 Bell's Com., i, 300 (i, 354). ' Bell's Com., i, 300 (i, 356). " Bell's Com., i, 300 (i, 355). {t) And each is entitled to rank for £150 on the bankrupt cautioner's estate. I Digitized by Microsoft® 130 CAUTIONARY OBLIGATIONS. not communicate the security ;"'(«) (3) the cautioner is not bound to communicate the security when it has been obtained from a stranger, because the debtor's estate, which is primarily liable for the obligation, is not thereby diminished f(x) (4) nor, it has been held, where the other cautioners are bound for separate and diifer- ent sums, as they are not in that case held to be correi,^ but this rule has been disputed by Professor G-. J. Bell,* and also by Profes- sor Menzies f (5) where a cautioner who holds a collateral security is creditor in other debts, he is not bound to renounce the benefit of his security .^(2/) ' Bell's Com., i, 272 (i, 349). - Bell'a Com., i, 272 (i, 349). ' Coventry, 16tli June 1830, 8 S., * Menziea Lect., 214 (221). 924. " Lennox, 18th May 1815, F.C. = Lawrie, 6tli June 1823, 2 S., 368. («) The principle here stated was adopted in Murray, 26th June 1832, 10 S., 706 ; tut there was this specialty in the case, that the security con- sisted of a claim for meliorations due hy one of the cautioners to the princi- pal debtor, under a lease entered into between them at the same time that the cash-credit bond was granted, and which stipulated " that the obligation for these meliorations shall not take place until the landlord " (cautioner) " is fully relieved " of any sum which he might pay under the bond ; in consequence of which, it was thought that till he was so relieved no claim for meliorations could arise. (x) The doctrine here stated is also laid down by Professor Bell (Com., i, 350), but did not form the ground of judgment, and indeed was not the question at issue in the case of Coventry, in which the circumstances were, that at the time of signing the bond, Moffat, one of the cautioners, got from Hutchison a letter referring to both Moffat and Coventry as parties to the bond, but addressed to Moffat alone, and agreeing not only to become bound in the third share of the responsibility of the bond, but to relieve him of all loss under it. Moffat having died, his trustees paid up the bond, and got repayment of one-half from Hutchison, and of the other from Coventry, who two years thereafter tool;: from Moffat's trustees an assignation to the bond, and sued Hutchison for the difference between one-half and one-third, on the ground that the letter had been granted for his, Coventry's, behoof as well as for Moffat's. There was therefore no question as to Moffat's obliga- tion to communicate the security, but an attempt to show that Hutchison had become joint obligant with the other two. (y) The case of Lennox, cited, relates to an entirely different matter (see infra, note under Ans. 290). The point here referred to was ruled in the opposite way to what is here stated ; Milligan, 20th May 1802, M., 2140, and "Cautioner," App., 2. Here Milligan and Glen were cautioners to a bank for Mouncie, who having got into difficulties, granted Glen a security for a debt already due, and in relief of the bond. Glen sold the subject. Digitized by Microsoft® CAUTIONARY OBLIGATIONS. 131 270. Is the cautioner discharged by the creditor liberating the debtor after incarceratiori, or after appreliension ? State the reasons. (1) The cautioner is discharged by the creditor liberating the debtor after incarceration, because he thereby "loses that chance of recovering payment ■which arises from the squalor carceris." (2) But he is not discharged if the debtor has been apprehended only ; because, although a creditor cannot pass from consummate diligence without releasing the cautioner, he may begin diligence without being compelled to finish it.-"- The former point, however, is doubted by Professor Gr. J. Bell.^ 271. In what case is a cautioner freed by delay allowed to the debtor? The cautioner is not freed by mere inactivity on the part of the creditor in enforcing payment; but he will be freed by the creditor agreeing to give time, by virtue of positive contract be- tween him and the principal, and without the consent of the surety.^(a) 272. May a cautioner in a bond for a sum of money, or in a cash-credit, or for a judicial factor, or for a tenant in a lease, recall his responsibility? (1) A cautioner for an absolute obligation, as a bond for a sum of money, cannot withdraw his security. (2) A cautioner in a cash-credit may stop further advances on his responsibility by giving notice to the bank. 1 Ersk., 3, 3, 66 ; Menzies Lect., ' Mactaggart, 16th April 1835, 1 210(217); M'Millan, M., 3390. S. and M. Ap., 553 ;(z) Morrison, " Bell's Prin., 265. 16tli Feb. 1849, 11 D., 653. and paid half the debt to the bank, and exhansted the balance of the price in paying the debt due to himself. Milligan paid the other half to the bank, and sned Glen for relief of one-half thereof. Glen pleaded, no funds of Mouncie's remaining ; but he was found liable, as being bound to communi- cate the benefit of his security. (2) Eeversing 24th Jan. 1834, 12 S., 332. (a) The question in Mactaggart's case was not as to giving time, but whether a cautioner for a trustee in a sequestration, who was sued for funds misapplied, was relieved of his obligation by alleged remissness and failure in duty on the part of the commissioners and creditors, which had enabled the trustee to commit the fraud ; and which plea was in House of Lords re- pelled. The case of Morrison is in point. I 2 Digitized by Microsoft® 132 CAUTIONAKY OBLIGATIONS. (3) A eautioner for a judicial factor may withdraw on reason- able notice. (4) A cautioner for a tenant cannot recall his responsibility.^ III. SEPTENNIAL LIMITATION OF CAUTIONARY OBLIGATIONS. 273. What requisites are prescribed by the Act 1695, c. 5, for giving cautioners the benefit of it ? The requisites prescribed by the Act are : — (1) the party plead- ing it must be bound as express cautioner, or as principal, or co- principal, provided he has a clause of relief in the bond, or a sepa- rate bond of relief intimated personally to the creditor at his re- ceiving the bond ; (6) (2) whether as cautioner, or as an ordinary co-obligant, he must be bound conjunctly and severally ; (3) the bond must be for a sum of money. 274. What classes of obligations do not fall within the ope- ration of the Act ; and for what reasons ? (1) Bonds and contracts in which the term of payment ex- pressed in the obligation is beyond seven years from its date; because diligence cannot proceed within the statutory period.^ (2) Cautionary obligations in marriage-contracts; on account of the uncertainty of the term of payment, or of their being pro- spective.^ But where the term of payment is certain, and the ob- ligation is consistent with the other requisites of the Act, the limitation, it is thought, would apply. * (3) Obligations for the payment of an annuity, or the interest upon a loan, and cash-credit bonds ; because they are prospective.' (4) Bonds of corroboration, bonds of relief by one cautioner to 1 Bell's Prin., 266. ^ Duff on Deeds, 31 ; Alexander, ' Ersk., 3, 7, 23. 23d Dec. 1843, 6 D., 322 ; Balvaird, ' Bell's Prin., 602. M., 11005. ^ Duff -on Deeds, 32. (5) It was held that the creditor's personal knowledge is not suiBoient, but that there must he intimation by way of instrument under the hand of a notary at the time of signing or delivering the bond; Bell, 14th Feb. 1727, M., 11039 ; but in a prior case it was found that the creditor's both writing and being a witness to the bond of relief, which was of the same date with the principal obligation, was equivalent to intimation; M'Eaukin, 24th Feb. 1714, M., 11034. Digitized by Microsoft® SEPTENNIAL LIMITATION OF CAUTIONAKY OBLIGATIONS. 133 another, and mercantile or other guarantees ; because the grantors are not bound in conformity with the requisites of the statute.^ (5) Obligations ad facta prcestanda, (c) bonds of caution for the faithful discharge of an office, and judicial bonds ; because the statute applies only to bonds for sums of money. ^ (6) Obligations for a composition in bankruptcy ; because the grantors engage to pay when the debts shall be ascertained, which is an indefinite term.^ (7) Obligations for mutual relief ; because the statute applies only to bonds in which one or more of the obligants have full re- lief against another, as principal debtor.* (8) Bonds executed in a foreign country ; because the Act operates as a qualification of the contract ab initio, limiting the obligation on the cautioners to seven years, and consequently the statute cannot be applied to a contract entered into in a country to which it does not extend.^ 275. How may the septennial limitation be excluded, in a bond by a principal and cautioner ; and would a re- nunciation of it by the cautioner be effectual ? The operation of the limitation may be excluded, (1) by tak- ing the cautioner bound as principal without a clause of relief in the bond, or allowing him to intimate a separate obligation of re- lief at the date of delivery of the bond ; (2) by taking the surety bound as express cautioner, but without binding him conjunctly and severally with the principal, which would exclude the limita- tion without giving the cautioner the benefit of discussion. ''(e) It > BeU's Com., i, 279 (i, 357-8). * Ersk., 3, 7, 23. 2 Bell's Com., ib. ' Alexander, 23d Dec. 1843, 6 D., ' Cuthbertson, 23d May 1823, 2 322. S., 291. " 19 and 20 Vict., c. 60, g 8. (c) In a bond of presentation the cautioner bound himself that the debtor should not only present himself, but pay the debt, &c. Held that this obli- gation, in respect of the pecuniary element involved in it, fell under the Act ; Monro, M., 11017. See also Bell's Com., i, 357, note 2. (e) The method here proposed for excluding the septennial limitation is ingenious, but it is thought not sound. It proceeds upon the assumption that the proviso in the Act 1695, " that he have either clause of relief in the bond, or a bond of relief apart," applies to all the persons falling under the descriptions of those who are to be understood as cautioners. This is pro- bably consistent -with the strictly grammatical construction of the words of Digitized by Microsoft® 134 SEPTENNIAL LIMITATION OF CAUTIONAEy OBLIGATIONS. has been held that the benefit of the limitation cannot be re- the Act, wMch are, " that whoever is boimd for another, either as express cautioner, or as principal, or co-principal, shall be understood to he a cau- tioner, and have the benefit of this Act, providing that he have either clause of relief in the bond or a bond of relief," &c. ; but it is to be kept in view that the object of the Act was to regulate matters, not as between the prin- cipal and the cautioner, but between the cautioner and the creditor, and to put the creditor on his guard by making him aware that he was dealing with a cautioner, for which purpose nothing could be more effectual than a declara- tion on the face of the deed that he was such. This accordingly seems to have been the construction put upon the Act by the Court. Thus, in Eoss, M., 11014, it was held that where two persons were bound conjunctly and severally, the one as principal, the other as cautioner, the cautioner was en- titled to the benefit of the Act, though there was neither claxise of reKef in the bond nor separate bond of relief intimated. In another case, Douglas, Heron, & Co., M., 110^2, the same judgment was given, and the report bears " that as by the bond in question the petitioner's (defender's) father was hound expressly as cautioner, there was no necessity for a clause of relief in the bond, or a separate bond of relief intimated," &c. The question again oc- curred in Tuille, 2Yth Nov. 1827, 6 S., 137, with the same result. In this case the bond proceeded thus : — " Therefore we, as principals, and with and for us George Tuille, &c., as cautioners, sureties, and full debtors, bind and oblige us, jointly and severally," &c. In the pleadings an extract is given from Baron Hume's Lectures, in whicli, with reference to the proviso in the Act, he stated, — " This is plainly intended to apply to the case of those who do not bind as cautioners expressly on the face of the bond, but as co-princi- pals. Where, then, the party binds openly and on the face of the bond as cautioner, there is no necessity for the statutory qualification of a clause or bond of relief." In delivering his opinion, the Lord Justice-Clerk (Boyle) stated, — " It is impossible to say that this statute is very accurate in its terms." " The necessity pressed on us as to the proviso of a clause or bond of relief being applied to both characters, arises from looseness in framing the clause ; but I have no doubt that it was intended to be applied to the immediately preceding individual mentioned, viz., the principal or co-prin- cipal. In the clause ' provided he have either clause of relief,' &c., the word ' he ' applies to the principal or co-principal, and that without any undue stretch of language. If a party binds as express cautioner, it requires no other explanation ; but if he binds as principal or co-principal, it requires an authentic indication of his character." Lord Glenlee stated — "All this clause says is, it is of no consequence whether you are a cautioner or co-prin- cipal, if you have a clause or bond of relief, but in effect the express cau- tioner is in the same situation as a principal having a clause of relief." And Lord AUoway — " I have no doubt but that the object of the statute was to enable the creditor to know the character of the party." Looking to the au- thorities now referred to, it seems impossible to suppose that a party appear- ing expressly as cautioner would not be entitled to the benefit of the Act. Digitized by Microsoft® SEPTENNIAL LIMITATION OF CAUTIONARY OBLIGATIONS. 135 nounced by the cautioner ;^ but in a later case doubts were enter- tained of this doctrine in the House of Lords.^(/) 276. What is the effect, as regards the limitation, of a pay- ment of interest by the cautioner after the expiration of the seven years, or of giving him a charge on the bond during the seven years ? (1) A payment of interest after the seven years has no effect in perpetuating the obligation ; because the limitation operates as a total extinction of it, and as such a payment is presumed to have been made in error, the cautioner was found, in one case, en- titled to repetition. ^(g') (2) A charge on the bond has the effect of prolonging the ob- ligation against the cautioner for the principal sum, with such in- terest as shall have fallen due within the seven years.^(/i) IV. BOND OF CEEDIT, &C. 277. What are the general characteristics of the cash-credit bond? The form of the bond is an obligation by the parties as co-prin- cipals, jointly and severally, the principal being distinguished as the person in whose name the account is to be kept. The obliga- tion is for a certain definite sum, or such parts thereof as should be drawn out or given value for by drafts, bills, &c., with interest from the date of advance ; and it contains a declaration that the balance at any time due shall be ascertained, and constituted by ' Norrie, M., 11013 ; Ersk., 3, 7, 22. = Carrick, M., 2931. ' Douglas, Heron & Co., 2d April * Bell's Prin., 608. 1800 ; 4 Paton's App., 133. (/) It was expressly decided by tlie Court of Session, in a case prior to Douglas, Heron & Co., that the benefit of the limitation may be renounced, and that the words of the Act " are only to be understood of the obligation he came under by the bond itself ; but that he may, by writ or promise re- ferring to the said cautionary obligation, become bound simply ;" and this was said to be " now of a long time a settled point ;" "Wallace, 13th July 1749, M., 11026. (g) In Carrick's case, cited, repayment was demanded the following day, — the presumption is in favour of error, " and not donation, unless the con- trary can be proved." See also Tuille, 9th Feb. 1830, 8 S., 485. (A) See Bell's Cora., i, 358 ; correcting Ersk., 3, 7, 24. Digitized by Microsoft® 136 BOND OF CREDIT. an account from the books of the bank, certified by the cashier, which shall warrant summary diligence.' 278. Is a cash-credit bond, in name of several obligants, but not subscribed by the whole of them effectual against the subscribers ? (1) Where none of the obligants named in the bond are truly cautioners, and the obligation is joint and several, it will be effec- tual, it is thought, against the subscribers ; because they are bound in solidum, and they ought not to have allowed delivery of the deed until it was subscribed by the whole.^(i) (2) But if some of the subscribers, though bound as co-princi- pals, are truly cautioners, the bond will not be effectual against them, because a party is entitled to the equities of a cautioner wherever it appears [h] that he is such, though bound as a princi- pal, and in cautionry it is an implied condition of the obligation of each cautioner that the whole shall be bound.^ 279. If a cash-credit bond were subscribed by a company firm, or by a company firm and the partners, what would be the effect of the obligation, in either case, against the company and against the partners, the credit be- ing granted for behoof of the company, or for behoof of a third party ? (1) If the credit was /or hehoof of the company, the subscription 1 Jur. St., ii, 63. « Paterson, 9th March 1844, 6 D., ' Menzies Lect., 221 (228). 987. (s) In the case of Paterson, infra, note 3, Lord Fnllerton expressed a some- what different view, observing — "Even if they were joint and several principal obligants, I think that in strict law the bank would be in as bad a position. For what in that view is the nature of the obligation ? It is a credit by the bank to four persons, the nioney to be drawn in name of one of them. That being the true view of the case, according to tlie conception of the bank, can anything be more plain than this, that a mandate by four only executed by three is no mandate at all." In a recent case, where a bond for borrowed money, bearing to be granted by A, B, and C, as principal obligants, was signed and delivered by B and C, A being present at the execution of the deed, but refusing to sign it, it was held that B was not afterwards entitled to repudiate the obligation on the ground that A had not signed the deed ; Craig (in Montgomery, &c.), 13th Deo. 1865, 4 M'P., 192. {k) The rubric in Paterson's case (note 3) bears, " wherever it appears clearly from the transaction, as set forth in the deed, that he is such." Digitized by Microsoft® BOND OF CREDIT. 137 of the firm binds the company and the whole partners, and the signature of the partners obliges them as individuals without ex- press words to that effect.^ (2) If the credit was far lehoof of a third party, the sub- scription of the firm, it is said, does not bind the company, or the partners who did not authorise it, because cautionary obligations are not in the line of a company's business. ^ If the bond were subscribed by the firm, and also by the partners, the individual partners of the company would not be liable each in a separate share, but together only in one single share, as their subscription would be held to have been added merely to give eifeot to that of the company. 280. What is the effect, with regard to cautioners, of a change in the partnership of the company to whom the credit is granted, or a change in the proprietary of the bank ? (1) A change in the partnership will relieve the cautioners, be- cause the company is dissolved by the change, and because those on whose discretion the cautioners relied may have been removed.^ But the obligation will subsist where the intention of the parties that it should continue binding, notwithstanding the change, " shall appear either by express stipulation, or by necessary im- plication from the nature of the firm or otherwise."* (2) A change in the proprietary of -the bank will not affect the obligation of the cautioners, as their intention to continue bound appears by necessary implication from the nature of banking com- panies. 281. What is the effect of a stipulation in a bond of credit that a charge thereon for the balance, as ascertained by the certified account, shall not be suspended, ex- cept on consignation ? State the reason . The stipulation is not effectual ; because it would interfere with the principles of public law, and by preventing Courts from sus- pending on caution, would stop the course of justice. ^ 282. Is the heir of a co-obligant in a cash-credit liable for drafts after his ancestor's death, where no notice had 1 Melliss, 22d June 1815, F.O. ' Bell's'Com., i, 283 (i, 370). 2 Christie, 19th Jan. 1826, 4 S., * 19 and 20 Vict., c. 60, § 7. 368. * Forrester, 27th June 1815, F.C. Digitized by Microsoft® 138 BOND OF CEEDIT. been given by the bank to the obligant's heir of the existence of the bond? The heir is liable, not only for the debt as it stood at his an- cestor's death, but for subsequent drafts until recall of his respon- sibility ; and it is not the duty of the bank to give notice to the heir of the existence of the bond.' 283. Is a cautioner, interposed in a cash-credit already granted, liable for sums advanced before the date of his bond ? Yes ; provided there has been a fair disclosure of the state of the accounts.^ 284. When an annuitant dies between terms, have his re- presentatives any claim, the annuity being declared payable all the days of his life ? It vas formerly held that upon the death of the annuitant be- tween terms the annuity ceased as at the term preceding his death, because it was due in indivisible termly payments ; but under the Apportionment Act, the representatives of the annuitant are now entitled to a portion of the annuity for the period from the last term till his death.'(m) When the annuity was declared to be ' Commercial Bank of Aberdeen, ' Bell's Prin., 301. 4th Feb. 1801 ; Hume, 88 ; Pater- » 4 and 5 Will. IV, c. 22, § 2 ; son, 5tli July 1808, F.C. ; Britisi Bridges, Ttb March 1844, 6 D., 968, Linen Co., 12th Feb. 1858, 20 D., affd.(Z) 657. See WyUie, 13th Dec. 1853, 16 D., 180. {I) 23d Feb. 1847, 6 Bell, 1. (m) This Act has been found, though it is believed not originally in- tended (see observation by Lord Jeffrey, who was Lord-Advocate at the time of its passing, in Bridges, supra, 6 D., 980), to apply to Scotland. It is un- derstood, however, not to apply in all cases, such as the division of house rents, the rule regarding which, at common law, is more favourable to exe- cutors. The point here referred to has not been decided, and as, at common law, annuities terminate at the term preceding death (see Dalhousie, M., 15915, and Colebrooke, 13 S., 766), and the object of the Act Is stated to be to apportion termly payments, not to increase the obligations of the debtors iu them, its effect in this respect may perhaps be doubted. Annui- ties due under policies are (t 3) specially excepted, which may seem to favour the view stated in the text, though the ground of distinction between them and other annuities, if such was intended, is not very clear ; but the Digitized by Microsoft® BOND OF CIIEDIT. 139 alimentary, it was always held to be payable forehand, and to vest de die in diem.(ri) 285. Whether is a bond of annuity a burden on the granter's heir or his executor ? (1) If the annuity is irredeemable, it is a burden on the heir, because it is heritable, having a tract of future time, and yielding a yearly profit without relation to any capital sum. If the exe- cutor is called on to pay, he will be entitled to relief from the heir. (2) If the annuity is redeemable, it is a burden on the party entitled to redeem. (o) 286. What is the object of a bond of relief, and what are its operative clauses ? State the reasons. The object of a bond of relief is to enable the cautioner to enforce his relief against the principal debtor, by summary dili- gence, and before payment or distress. The operative clauses of words of the preceding section tend to the opposite conclusion. By that section it is enacted that all rents, annuities, &c., " shall he apportioned so and in such manner that on the death of any person interested " therein, " he or she, and his or her executors," &c., " shall be entitled to a propor- tion of such rents, annuities," &c., " according to the time which shall have elapsed from the commencement or last period of payment thereof," &c., " and that every such person, his or her executors," &c., " shall have such and the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities," &c., " when the entire portion of which such apportioned parts shall form part , shall become due and payable, and not before, as he, she, or they would have had for recovering and obtaining such entire rents, annuities," &c., " if entitled thereto ;" but as no "entire portion" of the annuity would ever "become due and payable," the time for recovering the " apportioned part " would never arrive. On the whole, the trae object, whatever may have been the effect of the Act, seems to have been, not to create new obligations, but to regulate the rights of heir and executor in payments, which were to continue, notwithstanding the death of the parties for the time in right of them. (n) There seems to be some mistake here. Annuities payable forehand could hardly vest de die in diem ; because, being paid termly , each payment would extinguish the claim till the next term, when another term's payment in advance would be due. (o) All annuities are, in case of intestate succession, burdens on the heir ; it must therefore be here assumed that there is a settlement laying the burden on some one else. Digitized by Microsoft® 140 BOND OF CREDIT. the deed, besides the obligation to relieve, are, (1) an obligation to make payment of the debt to the creditor at the term of pay- ment and to deliver to the cautioner the bond discharged ; (2) or otherwise, and in the option of the cautioner, to make payment to the cautioner himself at the term of payment, of the principal sum, interest, and penalty, so that he may make payment to the creditor, and thereby operate his own relief. Without both of these clauses the cautioner could not, in the ordinary case, enforce his relief till payment or distress; because, although his bond contained the first, namely, the obligation to retire it by making payment to the creditor, that resolves into an obligation ad factum prcestandum, which can warrant diligence only against the person ; but when the additional clause, obliging the debtor to make pay- ment to the cautioner himself is adjected, there is then a de- finite liquid obligation of debt, which authorises diligence of every kind.^ 287. What is necessary in the enforcement of a bond of relief in which the cautioner's demand of payment to him- self is made only conditional upon the debtor's failure to retire the bond. On such a bond, it would be necessary to give two charges, the first ad factum prcestandum, to establish the failure, and to found the second and liquid charge for the debt, so that diligence of all kinds might proceed.^ 288. In what circumstances is the bond of corroboration used ? (1) When the original bond has been the subject of judicial discussion settled by decree. (2) Por the purpose of accumulating the principal and arrears of interest. (3) When a new obligant is conjoined in liability. (4) When an additional loan is granted. (5) When the debt is constituted by account, or bill, in order to save it from prescription. (6) The assignee to a cash-credit bond sometimes takes a bond of corroboration, as it is desirable that the amount due should be admitted by the debtor. • Jur. St., ii, 94 ; Eoss Lect., i, 169. °- Ross Lect., i, 171. Digitized by Microsoft® BOND OF CREDIT. 141 (7) By the representatives of the debtor after his death, to supersede the necessity of a decree of constitution. (8) By the debtor after the creditor's death, to save the ex- pense of confirmation. (9) When the heir of the debtor is liable, as heir of entail, a bond of corroboration is sometimes taken, binding him and his heirs whomsoever. 289. For what reasons ought a new obligation by the prin- cipal and cautioners, for an old debt, to be taken in a corroborative form ? If the new obligation is not taken in a corroborative form, (1) the cautioners may have the benefit of the septennial limitation ; and (2) the original obligation may be innovated, and diligence raised on it consequently discharged, the former obligation and all that has followed on it being superseded where innovation takes place. 1 290. What is the extent of the relief competent to a new cautioner who joins with the principal debtor and original cautioners in a bond of corroboration to the creditor ? (1) Where the new cautioner is introduced at the request of the debtor,(p) and not of the original cautioners, he has that relief only which is competent to them. (2) But when he has been introduced at the request of the original cautioners, or with their acquiescence, to relieve them from a present demand, he is regarded as cautioner for them, and will have total relief against them, as well as against the principal debtor.^ 291. When the granter of a bond of presentation has been compelled to pay the debt in consequence of his in- 1 Ersk., 3, 4, 22 ; Duff on Deeds, 61. ^ Bell's Prin., 272. (p) The legal presumption is, that he is so introduced ; Bell's Com., i, 352. See also Lennox, 18th May 1815. Here a corroborating cautioner granted bond singly, and did not take a letter of relief from the principal debtor; held that this was not evidence that the corroborator interposed at desire of co-obligants in the original bond, and they were found entitled to relief from him pro rata. Digitized by Microsoft® 142 BOND OF CREDIT. ability to present the debtor ; Has he relief against the debtor's cautioners in the original bond ? State the reasons. No ; (1) because when one has paid a debt for which he has become liable suhsidiarie, in consequence of any real or construc- tive delinquency of his own, he is not entitled to relief against the proper cautioner j'^ and (2) because the cautioners have for their own relief, an interest in the success of the diligence against the debtor.^ V. TEANSMISSION OP PEBSONAL EIGHTS. 292. "What are the different methods by which moveable rights may be transmitted ? (1) By act of the law, as in the transference of moveables by marriage. (2) By judicial sentence, as arrestment and forthcoming, or confirmation. (3) By voluntary conveyance.^ 293. What rights cannot be assigned ? State the reasons. (1) Conjugal and (g) parental rights ; because they must be exercised by the husband or father in that express character. (2) Public offices not patrimonial ; on the principal of delectus personcE. (3) Salaries of public officers, unless in so far as they exceed a reasonable maintenance ; because the public service requires that they shall have a sufficient support. (4) Leases of ordinary endurance, not urban ; on the principle of delectus personce. (5) Eights of liferent "cannot, properly speaking, be trans- mitted to another;" because they necessarily terminate at the death of the person on whom they are conferred, but the profits during the liferenter's life may be assigned. (6) Alimentary rights, unless for alimentary debts ; because such provisions are given for the subsistence of the grantee. 1 Ersk., 3, 3, 70. » Ersk., 3, 5, 1. '■ Menzies, 294 (304) ; Smith, 11th Dee. 1811, F.O. (?) See note (i), p. 34. Digitized by Microsoft® THANSMISSION OF PERSONAL EIGHTS. 143 (7) Legacies before the testator's death ; because there is no debt, and no one to whom intimation could be made. (8) A partner's interest in a private company, to the effect of making the assignee a partner ;(r) on the principle of delectus ^Jer- some. But his share of the stock may be assigned,(s) to be made forthcoming at the dissolution of the company.^ 294. "What are the classes into which moveable rights are divided, and how are they distinguished by the law of England ? Moveable rights are divided into two classes: — (1) moveable corporeal, or moveable real rights, of which the owner possesses the ipsum corpus, having a jus in re, as ships, merchandise, jewels, &o. ; and (2) incorporeal moveable rights, the possessor of which has only a jus ad rem or a right of action against other parties, without any real right in the thing which he is entitled to demand and recover, as debts or claims constituted by bonds, contracts, or other writings. These rights are distinguished by the law of England into rights in possession or chattels and choses in ac- tion.^ 295. Describe and account for the peculiarity of style of the deed of assignation generally in use.(i) The deed of assignation generally in use does not contain words expressly assigning and transferring the right, but is in the form of a mandate or power of attorney, empowering the assignee to demand and discharge the debt, with a surrogation and substi- tution of the assignee into the cedent's place. The peculiarity of the style originated in the circumstance that rights constituted by I Stair, 3, 1, 2; Ersk., 3, 6, 2 ; ^ grsk., 3, 1, 2; Boss Lect., 17Y ; Duif on Deeds, 70; Meuzies Lect., Menzies Lect., 231 (289). 251 (260). (r) There may, however, be a sub-contract between a partner and a stranger for a division of his share of the profits. This does not make the stranger liable for the debts of the partnership ; Ersk., 3, 3, 22 ; Bell's Com., ii, 654. (s) It may be attached also by diligence. (t) There seems to be some misprint in this question, and also in the answer, which describes first one and then another form of assignation as that " generally in use.'' Perhaps " generally " should have been " origin- ally," and the answer should have commenced in the past tense. Digitized by Microsoft® 144 TRANSMISSION OF PEESONAL EIGHTS. obligation, or clioees in action, were formerly intransmissible ■without the consent of the debtor. But although the creditor could not transfer the right, it was competent for him to grant a mandate or procuratory to another, as his attorney, to demand and discharge the debt in his name. The assignment, however, in this form being truly a procuratory, was from its nature revocable ; but after the introduction into the style of the terms cedant and cessionaire, and the clause of surrogation and substitution, from the French deed of transport, a deed which operated as a direct conveyance, the effect of that writ was also adopted, and the Scottish assignment passed into a deed of absolute transmission.^ 296. Enumerate the clauses of the assignation. (1) Narrative ; (2) subsumption ; (3) clause of assignation ; (4) powers of the assignee; (5) clause of warrandice; (6) clause of delivery ; (7) clause of registration ; (8) testing clause. (m) ^ Stair, 3, 1, 2 and 3 ; Koss Lect., 176, et seg.; Menzies Lect., 232 (240), et seq. (u) By tlie " Transmission of Moveable Property (Scotland) Act 1862 " (25 and 26 Vict., c. 85) a simpler form of assignation than that referred to in this and the preceding answer was introduced. By section 1 of that Act, it is provided that " it shall he competent to any party in right of a personal bond, or of a conveyance of moveable estate, to assign such bond or convey- ance by assignation in, or as nearly as may be in the form set forth in Schedule (A), hereto annexed, and it shall be competent to write the assig- nation or assignations on the bond or conveyance itself in, or as nearly as may be in the form set forth in Schedule (B) , hereto annexed, which assig- nation shall be registrable in the books of any court, in terms of any clause of registration contained in the bond or conveyance so assigned ; and such assignation, upon being duly stamped and duly intimated, shall have the same force and effect as a duly stamped and duly intimated assignation ac- cording to the forms at present in use." Schedule (A) is in these terms : — " I, A B, in consideration of, &c. {or otherwise as the case may be) do hereby assign to C D, and his heirs or as- signees {or otherwise as the ease may be), the bond {or other deed, describing it), granted by E F, dated, &c., by which {here specify the nature of the deed, and specify also any connecting title and any circumstances requiring to be stated in regard to the nature and extent of the right '^'required) \j'sic — should be " as- signed"]. In witness whereof, &c. {insert testing clause in usual form.) Schedule (B) is in these terms — " I, A B," &c., " do hereby assign to C D," &c. (as in Schedule A), " the foregoing {or within written) bond {or other writ or deed, describing it), granted in my favour {or otherwise as the case may be, specifying any connecting title and any circumstances requiring to be Digitized by Microsoft® TRANSMISSION OF PERSONAL RIGHTS. 145 297. On what principle is the doctrine of intimation founded, and what is the effect of intimation ? The doctrine of intimation is founded on the principle that delivery or possession is necessary to complete a conveyance ; and the object of intimation is the attainment of as complete posses- sion as the subject admits of, by placing not only the debtor but every person who has an equitable or legal interest in the matter under an obligation to treat it as the assignee's property. Inti- mation of a«i assignation is tantamount to possession, and its effect, therefore, is (1) to put the debtor in mala fide to pay to the cedent or any other assignee \{y) and (2) to complete the trans- ference.^ 298. To what risks is the holder of an unintimated assigna- tion exposed? (1) The debtor being in hona fide to pay to the cedent, the debt may thereby be discharged; (2) the debt may be carried off by a second assignation intimated to the debtor; or (3) by dili- gence at the instance of the cedent's creditors •,{x) (4) there being no concourse of debit and credit between the debtor and the as- signee before intimation, compensation is not pleadable by th6 latter, and therefore he may be compelled to pay a debt incurred by him to the debtor, and assigned to a third party, which would otherwise have been compensated.^ 299. An assignation of a bond was intimated to the debtor after the date of the cedent's sequestration, but before the confirmation of the appointment of the trustee on his sequestrated estate ; Was the intimation timeously made? No ; because the Bankrupt Act declares that the act and war- ' Jarman'a Conveyancing, 461 ; ^ Ersk., 3, 5, 2. Menzies Lect., 241 (249) ; Ersk., 3, stated in regard to the nature and extent of the right assigned). In witness whereof, &c. (insert testing clause in usual form.) " By section 3 it is provided that the forms of transmission and intimation then in use may still be employed. (v) This should rather be " any assignee making intimation subse- quently." (a-) Or by confirmation by them after his death. K Digitized by Microsoft® 146 TRANSMISSION OF PERSON Ai BIGHTS. rant of confirmation in favour of the trustee shall ipso jure vest the moveable estate in him as at the date of the sequestration, to the same effect as if intimation had been made at that date.^ 300. What is the x^rocedure in making notarial intimation of an assignation ? The assignee or his (y) procurator goes along with a notary and two witnesses to the debtor, exhibits to him the bond and as- signation, and delivers a copy of the latter, with a written state- ment signed by the assignee or procurator, called a schedule of intimation, in which the bond and assignation are recited, and by which the assignee or procurator intimates the assignation, and protests that the debtor should not pretend ignorance thereof, or of the intimation ; that he should not make payment to any other person than the assignee ; and that if he do in the contrary he should be liable in repetition of the sums in the bond, and also in damages and expenses ; the assignee or procurator at same time takes instruments in the hands of the notary ; and the res gestae are embodied in an instrument signed by the notary and wit- nesses.^(z) 1 19 and 20 Vict., c. 79, ? 102. ^ Jur. St., ii, 351. [y) Intimation found null, because the notary acted also as procurat<5r ; Scot, 3d July 1623, M., 846. (z) By the Transmission of Moveable Property Act, already referred to, it is declared that " An assignation shall be validly intimated (1) by a) no- tary-public delivering a copy thereof, certified as correct, to the person or persons to whom intimation may in any case be requisite ; or (2) by the holder of any assignation, or any person authorised by him, transmitting a copy thereof, certified as correct, by post to such person, and (in the first case) a certificate by such notary-public in, or as nearly as may be in the form set forth in Schedule (C), hereunto .annexed ; and (in the second case) a written acknowledgment by the person to whom such copy may have been transmitted by post as aforesaid of the receipt of the copy, shall be sufficient evidence of such intimation having been duly made. Provided always, that if the deed or instrument containing such assignation shall likewise contain other conveyances or declarations of trust purposes, it shall not be necessary to deliver or transmit a full copy thereof, but only a copy of such part there- of as respects the subject-matter of such assignation ;" 25 and 26 Vict., c. 85, ? 2. Though the Act speaks only of delivery to the debtor, the intimation may, if necessary, be made by leaving the copy at his dwelling-house. See Scliedule (C). Digitized by Microsoft® TRANSMISSION OF PEESONAL RIGHTS. 147 301. Is it necessary to produce both the bond and the assig- nation to the debtor in making notarial intimation ? It is not necessary to exhibit the bond ; but it is indispensable to produce the assignation. '(a) 302. To whom ought intimation to be made when the debtor is (1) domiciled abroad ; or (2) a pupil ; or (3) a cor- poration ; or (4) a joint-stock company ? (1) When the debtor is domiciled abroad, intimation ought to be made to him at the office of the keeper of the Eecord of Edictal Citations on letters of supplement passing under the Signet, the service being made by a messenger-at-arms, in presence of a notary and witnesses ; and notice should also be given to the debtor by letter, if his address is known. (2) When the debtor is a pupil, intimation should be made to the pupil personally, and also to his tutors, and if these are not known, or if the pupil has no tutors, intimation ought to be made to his "tutors and curators, if he any have," at the Edictal Cita- tion office on letters of supplement. ^(i) ' Watson, M., 3687. '^ 1 and 2 Vict., c. 118, and A. S., 24th Dec. 1838. When the intimation is made notarially, it must be in presence of two witnesses. The certificate sets forth the day and also the hour when (which is important, in case of competition), and the manner in which, the intima- tion was made, and is signed hy the notary and witnesses. A testing clause, " in usual form " is appointed to be inserted, so that the place and date of signing the certificate must be specified, as weU as the date of the intima- tion, which is stated at the commencement. The Act does not state whether or not the acknowledgment of the re- ceipt of the copy of the assignation must be holograph or attested ; but where not attested, it should be holograph, so as to secure for it the privilege, which otherwise it would not have, of proving its date. If the acknowledg- ment is sent by post without an envelope, the post mark would prove the date at least of its despatch. (a) Not now necessary. See supra, note (2), p. 146. (b) The letters of supplement here referred to, of which a form will be found in Juridical Styles, iii, 280, were originally executed at the market- cross of Edinburgh and pier and shore of Leith. The alteration in the mode of execution was introduced by 6 Geo. IV, c. 120, § 51, and Act of Sederunt, 11th July 1828 ; the Act 1 and 2 Vict., o. 118, only made a change regarding the ofliice where the execution is served. k2 Digitized by Microsoft® 148 TBANSMISSION OF PERSONAL RIGHTS. (8) When the debtor is a corporation, intimation to the trea- surer is sufficient ; hut entry of the assignation in the books of the corporation is of chief importance.' (4) When the debtor is a joint-stock company, intimation is made by leaving the schedule at the registered office of the com- pany; or by sending it through the post-office addressed to the company ; or by giving it to a director, or the secretary, or other principle officer.^(c) _ 303, What is the effect of the debtor's private knowledge of the assignation? ' Keir, M., 738. ' 19 and 20 Vict., c. 47, § 53. (c) The Act here referred to is repealed by " The Companies' Act, 1862 " (25 and 26 Vict., c. 89), which provides, § 72, that any notice " may be served on the company by leaving the same or sending it through the post in a prepaid letter, addressed to the company at their registered office." This applies only to companies registered nnder the Act, as they only have registered ofiSces. By the Companies Clauses (Scotland) Act, 8 Vict., <;. 17, 5 117, and the Railways Clauses (Scotland) Act, 8 and 9 Vict., c. 33, | 130, it is provided that any notice may be served on companies coming under those Acts " by the same being left at or transmitted through the post, directed to the prin- cipal office of the company, or one of their principal offices, where there shall be more than one, or being given personally to the secretary, or in case there be no secretary, then by being given to any one director of the company." Where companies are established under special Acts, provision is always made in regard to notices. There being no direction in the Transmission of Moveable Property Act, 1862, as to the mode of intimating to companies, the provisions of the Act above mentioned may be taken as regulating the persons, &c., to whom, in the several cases to which they are applicable, intimation should be made ; but the solemnities required by the Transmission Act must always be ob- served. In the case of private companies, intimation should be given to the com- pany at or addressed to its place of business, and, if required to be given to the partners as individuals, it should be done personally or at their dwell- ing-houses. The notarial certificate should set forth to which of the part- ners the copy was delivered for behoof of the company, where such is the case. In the case of joint-stock companies not registered, provision is generally made for this purpose in the contract or constitution of the company ; and where known, it should be followed ; but intimation to the manager, secre- tary, or other official at the place of business would be sufficient. See Wat- son, 19th Nov. 1765, M., 850. Digitized by Microsoft® TRANSMISSION OF PERSONAL RIGHTS. 149 (1) The debtor's private knowledge of the assignation cannot be pleaded by the assignee when there is a competition of creditors, as intimation is necessary to complete the transference. (2) But it is thought that private knowledge would put the debtor in mala fide, and interpel him from paying to the cedent.^(d) 304. What equipollents have been admitted to formal inti- mation, and for what reasons ? (1) Citation of the debtor in an action in which the assignation is founded on.^ (2) A charge of payment to the debtor on the registered bond and assignation at the instance of the assignee f and (3) Production of the assignation in a multiplepoinding in which the debtor and assignee are parties ;* because these are judicial acts, exposing the assignation to the knowledge of the judge as well as of the debtor.^ (4) A written promise by the debtor to pay the debt to the as- signee f and (5) Payment of interest by the debtor to the assignee ;' be- cause these imply not only the debtor's knowledge of the assigna- tion, but are in effect a corroboration of the debt. (6) The debtor's holograph acknowledgment of intimation ;* (7) His subscription as a consenter to the assignation f (8) Intimation by letter from the assignee, with an answer returned -^^ (9) Notice to the debtor's factor, with an entry by the factor in the books of the debtor of the transference of the debt;^'(e) and (10) The attendance of an assignee to shares in a public com- ' Stair, 3, 1, 7; Erak., 3, 5, 5 ; ' E. of Aberdeen, 9th AprU 1730, Bell's Prin., 1465. Cr. and St. Ap., 44. 2 White, M., 854. ' Newton, M., 850. ' Ersk., 3, 5, 4. » Turnbnll, M., 868. * Dougall, M., 851. " Wallace, 27th May 1853, 15 D., « Ersk., 3, 5, 4. 688. « Home, M., 863. " E, of Aberdeen, supra. {d) Private knowledge is not to be relied on. See Faculty of Advocates, M., 866. It cannot be proved by witnesses ; Dickson, M., 873. (c) It -was so held in the case referred to by the House of Lords, reversing the judgment of the Court of Session ; but it would not be prudent to rely on this circumstance alone as evidence of intimation. Digitized by Microsoft® 150 TRANSMISSION OF PERSONAL BIGHTS. pany, at a meeting of the partners, and acting and voting as in right of the cedent, by virtue of the assignation,X/) because in these oases the debtor is held to be duly certiorated of the assig- nation, which is all that the law requires. (11) Eegistration in the registers for publication of assigna- tions of heritable rights, and of personal rights relating to lands ; because these registers are established by statute to give notice to the lieges of transferences of such rights.^ 305. What assignations require no intimation ? (1) Legal assignation, by marriage.' (2) Judicial assignation, by sequestration, adjudication, ar- restment, and forthcoming, &c.*{h) (3) Transference of bills and notes of indorsation. ° (4) Transference of funds belonging to the drawer, in the hands of the drawee, on acceptance of a draff or protest for non-accept- ance.^ (5) Assignations in favour of the debtor.'(i') 1 Hill, 12th NoY. 1847, 10 D., 78. * Brsk., 3, 5, 6. « Ersk., 3, 5, 6 ; Edmund, 16tli '^ Ersk., ib. Nov. 1855, 18 D., 47. (^) " Bell's Prin., 1465. = Ersk., 3, 5, 7. ' Paul, 22d May 1835, 18 S., 818. (/) In Hill's case, referred to, the assignation was produced at the meeting. {g) AS. 26th Feb, 1858, 3 Maoq., 116. (A) It is to he kept in view, however, that intimation in some of these oases, though not necessary to complete the right of the assignee, may be so on other grounds. Thus, " a debtor to a woman by a moveable bond is in bona fide to pay to her, even after her marriage, until it be intimated to him. And in like manner a debtor to one by an heritable bond is in bona fide to make payment to the original creditor, notwithstanding its being adjudged by a third person, till he be properly certified of the decree of adjudication ;" Ersk., 3, 5, 7 ; and " If a debtor, in ignorance of the sequestration, have paid his debt bona fide to the bankrupt, he shall not be obliged to pay it a second time to the trustee ;" 19 and 20 Vict., c. 70, ^ 111. It may also be noticed, that though it is usual to describe some of the modes of transference here referred to as " assignations requiring no intimation," it is not quite accurate to do so. Either they are in themselves intimations, as arrestment and forthcoming, than which nothing can be more complete, or the intima- tion required is of a different nature, as in a decree of adjudication, which must be recorded in the appropriate register. (i) An assignation in favour of the debtor might in some cases operate a^j Digitized by Microsoft® TRANSMISSION OF PERSONAL RIGHTS. 151 (6) An assignation of a tack of teinds to tlie heritor. ^(A:) 306. In what respects are holograph acknowledgments of in- timation privileged as contrasted with other holograph writings ? Holograph acknowledgments of intimation prove their dates, although unattested by witnesses, being a privilege which is not allowed to other holograph writings.^ 307. Where there are several obUgants, does intimation to one of them complete the conveyance, or prevent an- other obligant, without notice, from paying the debt to the cedent ? Intimation to one of the debtors completes the conveyance ; ' Montgomery, M., 841. ^ Newton & Co., M., 850. an extinction by confusion rather than as a transference of the right. Such, however, was not the nature of the deed in the case of Paul, referred to ; it approached more nearly to an assignation hy the debtor, having been (on the ground stated in Ans. 319, where the case is again referred to) held, though not bearing, to be a conveyance of a jus crediti by a party who was also a trustee under the trust-deed which created it, so that he was, though in different characters, both debtor and creditor. It was held that the as- signation required no intimation to the granter in his character of trustee, and that the recorded infeftment following on the deed, which was in the form of a bond and disposition in security, was equivalent to intimation to his co-trustee ; but it is to be observed that this principle applied equally to both trustees, and was of itself sufficient to decide the case. (A) There was^ formerly a kind of assignation which was completed with- out intimation, viz., that of a patent, because there was no one to whom in- timation could be made ; but this was changed by " The Patent Law Amendment Act, 1852 " (15 and 16 Vict., c. 83), which provides, § 85, " That there shall be kept at the office appointed for filing specifications in Chancery a book or books, entitled ' The Register of Proprietors,' wherein shall be entered, in such manner as the commissioners shall direct, the as- signment of any letters patent, or of any share or interest therein," "with the name or names of any person having any share or interest in such letters patent, the date of his or their acquiring such letters patent share and in- terest, and any other matter or thing relating to or affecting the proprietor- ship in such letters patent." " Provided always, that until such entry shall have been made, the grantee or grantees of the letters patent shall be deemed and taken to be the sole and exclusive proprietor or proprietors of such letters patent." Duplicates of all entries made in the said Register of Proprietors are transmitted to the office of the Commissioners in Edinburgh. Digitized by Microsoft® 152 TEANSMISSION OF PEESONAL EIGHTS. but such intimation is not effectual for interpelling the other obli- gants who have not got notice from making payment to the cedent.^ 308. Where a creditor has arrested funds in Scotland belong- ing to his debtor, which had previously been assigned by him in trust for creditors by an unintimated English creditor-deed, such deeds operating as a com- plete transference by the law of England without in- timation ; Whether will the arrester or the assignee in trust be preferred ? State the reason. It has been found that the arrester is entitled to the preference ; because the question, whether an English creditor-deed excludes arrestments, relates to a competition of diligence for attaching a fund in Scotland, and falls to be determined by the law of Scot- land, which requires intimation.^ 309. A, under articles of roup, feued lands to B, who subse- quently sold them to C, and the latter executed over them a bond and disposition in security, which was recorded in the Eegister of Sasines. C having become bankrupt, and it having been discovered that his title to the lands was inept, his trustee sued A, the supe- rior, to grant a charter to him as trustee, but the holder of the bond appeared and claimed a preferable right ; Whether or not is his claim valid ? State the reason. The bond-holder's claim is valid ; because 0, the bankrupt, had a personal right to the lands under the articles of roup and charter which was carried by the assignation to writs in the bond ; and registration of the bond, being equivalent to intimation of that assignation of the personal title, the trustee therefore could obtain a charter only under burden of the bond-holder's preferable right.' 310. An assignee to a bond, " with all that has followed or may follow thereupon," sued the son of the debtor for payment, who did not represent his father, but had 1 Stair, 3, 1, 10 ; Ersk., 3, 5, 5. » Edmond, 26th NovU855, 18 D., ^ Donaldson, 5th July 1855, 17 47 ; aif. 26th Feh. 1858. D., 1053. Digitized by Microsoft® TRANSMISSION OF PERSONAL EIGHTS. 153 granted to the cedent a bond of corroboration ; Is the son in a position to plead that the assignee has no title to proceed against him, in respect that the bond of corroboration was not specially assigned ? State the reason. No ; because the bond of corroboration as well as every other accessory right, is transferred to the assignee by virtue of the as- signation to the debt itself. '(^ 311. Where diligence against the debtor has been begun by the cedent, before granting the assignation, in whose name ought it afterwards to proceed ? The diligence must be continued in name of the cedent ; be- cause the messenger-at-arms cannot judge of the effect of the as- signation, and his powers are limited to the terms of the wan-ant.^ But a new warrant may be obtained by the assignee for charging and arresting in his own name on production of the extract regis- tered bond and assignation in the Bill Chamber.^ Caption in the assignee's name may proceed on a charge at the instance of the cedent.* ' Cultie, 2 Br. Sup., 197. » 1 and 2 Vict., o. 114, - ' Ersk., 3, 5, 8 ; Stewart, U., 834. * Young, M., 8137. (l) In the case of Cultie, cited, it was held that an assignation, without even the usual clause, " with aU that hath followed or may foUow there- upon," " reached a bond of corroboration, as being delivered." See also "Wilson V. Birrel, 28th Feb., 1751, M., 40, where it was held that a convey- ance of an infeftment of annualrent, " with all that has followed," &c., car- ried right to a decree of adjudication that had been led on the personal obli- gation in the bond, though it was not mentioned; but in Geddes, Feb. 1751, Blchies, it was found that assignation of a bond and two decreets, with all other bonds, bills, decreets, &c., did not convey a decree of forthcoming, which the cedent had obtained ; and in Grahame, 15th Dec. 1814, F.C., it was held that an assignation (in an entail of certain lands and teiuds) of " all tacks, assedations," &o., " of and concerning the said lands and teinda thereof," did not convey a lease of the teinds that the entailer had obtained from the titular. It may therefore, and keeping in view the decision of the House of Lords in Home, 21st Feb. 1842, 1 Bell, 1, and subsequent cases as to the necessity for special assignations to vest singular successors with right to collateral obligations, be doubted how far the doctrine in this answer would now be recognised. Digitized by Microsoft® 154 TRANSMISSION OF PERSONAL RIGHTS. 312. Can an assignee do diligence in his own name if the cedent die before intimation ? Yes; It being provided by 1690, c. 26, that special assigna- tions lawfully made by a deceased person, though neither inti- mated nor made public in his lifetime, should be good and valid rights and titles to possess, pursue, or defend, although the sums of money therein contained be not confirmed ; — and it being also declared by 1693, c. 15, that special assignations, although unin- timated, might be registered after the death of the grantor at the instance of the assignee on production of the deed to the keeper of the register. 313. May exceptions competent to the debtor be proved by the oath of the cedent ? Exceptions competent to the debtor may be established by the cedent's oath before the assignation is intimated ; but not after- wards, unless the matter has been made litigious by the debtor prior to the intimation ; or unless he can prove by a reference to the assignee's oath that the assignation is gratuitous. '(ni) 314. A, ostensibly the proprietor of two shares in a public company but in reality holding them in trust for B, assigned one of them in security of money lent him individually by C, who was given to believe that he was the true owner, and G intimated his assignation. Several months afterwards the estates of A were se- questrated, and a competition arose between B, the real owner of the shares, on the one hand, and 0, the assignee in trust, and D, the trustee in the seques- tration, respectively, on the other ; What are the rights of the parties ? C is entitled to hold the share assigned to him in security of the advance made to A ; because latent equities cannot prevail against an intimated special assignation.^ But B, the real owner, will be successful in a competition with D, the trustee in A's se- 'Ei-st., 3, 5, 9; Ivory's Note, 278; ^ Redfearn, 26th May 1813; 1 Fao. of Advocates, M., 866. Dow App., 50. (m) Or in trust for the cedent. Digitized by Microsoft® TRANSMISSION OF PERSONAL RIGHTS. 155 q^uestration, for the other share, as D takes the share as it stood in A, and the trust may be proved by writ or oath.-'(w) 316. Is the confirmation of an executor-nominate or of an executor-creditor preferable to an unintimated assig- nation ? (1) The confirmation of an executor-nominate is not prefer- able ; because he represents the deceased.^ (2) But the confirmation of an executor-creditor excludes an unintimated assignation ; because such an executor is a third party, and the statute 1690, c. 26, which ordains special assigna- tions to be valid titles to sue and defend without confirmation, protects the rights of competing creditors.^ 316. What is the effect of an assignation of bank stock, not completed according to the regulations of the bank, in a question with the bank itself or with a competing arrester ? A bank may refuse to recognisCi an absolute transfer of stock inter vivos if it be not completed according to their regulations. But in a question with a competing arrester the security will be effectual if the essentials of a transfer and intimation had been observed, it being jus tertii for an arrester to plead the peculiar forms of the bank, for whose behoof alone they are prescribed.* 317. What is necessary to complete a security over an as- signable lease ? (1) When the lease is for a period under thirty-one years the assignee, in order to make the security effectual, must obtain pos- Bession.^(p) I Gordon, 5th Feb. 1824, 2 S., 675. * Menzies Lect., 256 (265) ; Thom- ^ Grant, 5th Feb. 1828, 6 S., 489. son, 23d Dec. 1842, 5 D., 379.(o) 8 Ersk., 3, 5, 3. = Brsk., 2, 6, 25. (n) This is under the proYisions of 1696, c. 25, which limits the mode of proof to writ or oath ; but see Middleton, 8th Feb. 1861, 23 D., 526, where, in the circumstances, the Act was held not to apply, and a, proof prout de Jure of latent trust was allowed. (o) This was a case of railway shares. See as to bank shares, Weatherly, 3d June 1824, 3 S., 92. {p) But the possession may be civil as well as natural. See Sime's Trs., Digitized by Microsoft® 156 TRANSMISSION OF PERSONAL RIGHTS. (2) An assignation in security of a lease, during the currency of a sub-lease, may be completed by intimation to the subtenant.^ (3) An assignation in security of a lease for thirty-one years or upwards, recorded in the Eegister of Sasines in terms of the Eegistration of Leases Act, may be completed by registration in the Eegister of Sasines without possession.^ 318. What is necessary to complete an assignation of rents by a personal deed, and what is the effect of such an assignation in a competition with real rights ? (1) The assignation must be completed by intimation to the tenants, or by decree in an action of maills and duties at the as- signee's instance against them.^ (2) A personal assignation of rents cannot compete with com- pleted real rights ; because such an assignation creates only a per- sonal claim against the tenants, while the cedent continues pro- prietor of the lands ; but when the heritable right is transferred to another, the assignation loses its force, on the principle that the rents are an accessory of the real right to the lands.* 319. A party, whose feudal title was subsequently found to be inept, but who was a trustee along with another, and had a jus crediti under a trust-deed executed by his father, granted an heritable bond, on which infeft- ment was expede and recorded, over property convey- ed by the trust-deed. "What is the effect of the bond ? The granter having no feudal title, the bond as an heritable security is null, but it will be effectual as a conveyance to the holder of the granter's jus crediti under the trust-deed ; on the principle that it contained an implied assignation to it which re- quired no intimation to him as trustee, being himself the granter ; and with regard to the other trustee, that registration of the in- feftment was equivalent to intimation.* ' Syme's Trs., 23d May 1806, F.C. * Ersk., 3, 5, 5 ; Bell's Com., ii, 904 2 20 and 21 Vict., o. 26, § 1. (i, 67 and 757). " Bell's Com., ii, 904 (i, 67 and ^ Panl, 22d May 1835, 13 S., 818. 757). See Edmond, 16th Nov. 1855, 18 D., 47 ; aff. 26t]i Feb. 1858.(r) infra, note 1. In Sime's case, referred to, the assignee, besides making in- timation, had levied the sub-rents. See also Bell's Com., i, 67, note 1. (r) 3 Macq^. App., 116. Digitized by Microsoft® TRANSMISSION OF PERSONAL EIGHTS. 157 320. May a eum of money lying in bank in a bankrupt's name, which never came into the hands of the trustee in his sequestration, be arrested by the subsequent creditors of the bankrupt after Ms discharge, in pre- ference to assignees of the trustee, whose assignation was not intimated to the bank? State the reason. The money so situated cannot be arrested by the bankrupt's subsequent creditors ; because he was divested by the sequestra- tion, and it is not necessary, in a question with them, that the as- signation should be intimated to the bank.^ 321. Where a party assigns a policy of assurance (1) by an assignation ex facie, absolute, but qualified by a back- bond declaring it to be in security of a special debt ; or (2) by an assignation bearing, in gretnio, to be granted in security of a certain special debt ; Is the assignation, in either case, available as a security to the grantee for subsequent advances ? (1) An ex facie absolute assignation, though qualified by a back-bond declaring it to be in security of a special debt, is avail- able to the grantee as a security for subsequent advances. ^ (2) But where the assignation bears, in gretnio, to be granted in security of a special debt, the right of the grantee is restricted to that debt, and does not extend to subsequent or extrinsic trans- actions.' 322. Is the indorsee of a deposit-receipt entitled to uplift the contents after the indorser's death ? State the reason. It is thought that the indorsee is not entitled to uplift the contents after the indorser's death ; because the indorsation of such a document does not operate as a transference of the fund, but is merely a mandate to draw the money, and a warrant to the bank to pay it, terminating, like other mandates, on the death of the mandant.*(s) 1 Adam, 17tli Jan. 1845, 7 D., 276. ' National Bank, M Dec. 1858, " Douglas's Ci-s., 11th June 1794; 21 D., 79. Bell's Fol. Ca., 41. * Barstow, 5th Dec. 1857, 20 D., 230. (s) It was so held by the Lord Ordinary in the case of Barstow, referred to ; but in the Inner House the judgment went on another ground ; two of Digitized by Microsoft® 158 DISCHARGES, AND DEEDS OPERATING DISCHARGE. VI. DISCHARGES, AND DEEDS OPERATING DISCHARGE. 323. What are the different modes by which obligations may be extinguished? (1) Speciiic performance ; as payment of the debt, or fulfil- ment of the engagement. (2) Acceptilation ; being a discharge by the creditor's bare consent or voluntary act, without payment or performance. (3) Compensation ; which occurs when the same persons he- come both debtor and creditor to one another, operating as an extinction of both debts, in so far as there is a concourse of debit and credit. (4) Novation ; being the substitution of a new obligation by the same debtor to the same creditor, to the effect of extinguish- ing the original obligation, and the cautioners in it. (5) Delegation ; being the substitution of one debtor for an- other, with consent of the creditor. (6) Confusion ; which occurs when there is concursus debiti et crediti in the same person, as when the debtor succeeds to the creditor by inheritance, or vice versa. (7) Implied discharge ; founded on a presumption of payment, arising from the conduct of the parties. It obtains when three consecutive discharges have been granted of periodical payments, as rents, feu-duties, &c., so as to extinguish all preceding ar- rears. (8) Prescription ; being a legal presumption, arising from the lapse of time, of abandonment, or of satisfaction. (9) Statutory limitation ; being a denial of action on a docu- ment of debt after a cei'tain time. (10) Conventional limitation ; by a stipulation in the obliga- tion that it should not be binding after a certain time. (11) Judicial discharge of the debtor under the Bankrupt Act ; the judges expressly reserved their opinion on this point, and reference was made to Steel, M., 1409, as leading to an opposite view. There a gratuitous bank draft was sustained, though not presented till after the drawer's death. Two cases which have since occurred may be referred to, viz., National Bank, 20th Jan. 1866, 4 M'P., 312 (as to a cheque), and British Linen Co., decided 15th June 1866 (as to a deposit-receipt). The rule in both cases seems to be that the documents are warrants to receive the money, but sub- ject to the inquiry quo animo they were given, the contents not being neces- sarily transferred. Digitized by Microsoft® DISCHARGES, AND DEEDS OPERATING DISCHARGE. 159 which operates as an extinction of all his obligations contracted before the sequestration. (12) Taciturnity ; which operates as an extinction on the presumption of payment arising, in the circumstances of the case, from the creditor's silence.^ 324. May a debtor safely rest satisiied on payment with the cancellation of the bond? State the reason. The debtor ought to take a formal discharge, and not rest satisfied with the cancellation of the instrument ; because although the bond is destroyed, its tenor may be proved at the creditor's instance, while the fact of payment cannot be instructed by parole evidence.^ 325. In what case is it necessary to have a discharge sepa- rate from the bond ; and what should be done to give such discharge full effect ? There must be a separate discharge when the bond is recorded ; because it is permanently deposited in the register. The dis- charge should be recorded, and a reference to it marked on the margin of the record of the bond.^ 326. When a debt is paid and a discharge granted by one who is not the proper creditor, and not entitled to receive the money; What is the effect of the dis- charge ? The general rule is, that the discharge is ineffectual. How- ever, it is not necessarily void, for if the debtor made the pay- ment in lona fide, and had sufficient probable grounds for believ- ing that the party receiving the money was the true creditor, the debt will be extinguished. But payment to one who is not en- titled by law to receive it is not accounted a bona fide payment, as payment to a messenger executing diligence.'' 327. Does possession by a factor of his constituent's grounds of debt imply power in the factor to discharge the principal sum and interest ? ' Ersk., 3, 4, 1, et seq.; Bell's Prin., " Menzies Lect., 260 (269). 555, et seq.{t) * Ersk., 3, 4, 3 ; Menzies Lect., ^ Menzies Lect., 260 (269). 262 (271). [t] Menzies Lect., 259 (268), et seq. Digitized by Microsoft® 160 DISCHARGES, AND DEEDS OPERATING DISCHARGE, Possession by a factor of the grounds of debt implies power to discliarge the interest, but not the principal sum, unless he has repeatedly received and discharged principal sums, with the knowledge and approval of his constituent. ' 328. When the debt is paid by the debtor's agent from his own funds. In what terms ought he to take the ac- knowledgment of the receipt of the money ; and for what reason ? The acknowledgment ought to bear that payment was made by the agent ; because, in the absence of such a statement, the legal presumption is, that payment had been made by the debtor himself.^(w) 329. The agent for a creditor in a bond having paid him, out of his own funds, the interest for a series of years on behalf of the debtor, also his client, and got receipts from him in favour of, but did not deliver them to, the debtor, the receipts bearing that the payments were made by the debtor, and that " all concerned are hereby discharged ; " Was the bond extinguished, in a question with the debtor, to the extent of the interest so paid ? State the reason. No ; because the receipts were never delivered to the debtor, nor were the payments which they vouched made out of the debtor's funds.^(v) ' Duncan, 24tli Jan. 1851, 13 D., ' Hallybnrton, M., 11528. 518. " Wood, 20th Dec. 1848, 11 D., 254. (m) The direction here given is judicious, but whether the statement as to the legal presumption is correct may be doubted. See Ans. 329 and note (t)) The statement in this answer requires explanation. In the circum- stances (as regards payment) stated, even if the receipts had been delivered to the debtor, the debt would not have been extinguished, though the creditor might have been changed ; but the question in the case referred to (Wood) was different. The debt was secured on an estate, of which the creditor brought a process of ranking and sale, after the institution of which the agent took an assignation to the security to the extent of the interest paid, and in virtue thereof claimed a preference in the ranking, which was objected to by creditors holding postponed securities, on the ground that the seairity had been discharged ; but the objection was repelled. It may be noticed that the agent for the lender, though he had at one time been, had prior to the date of the loan ceased to be agent for the borrower, though, had Digitized by Microsoft® DISCHARGES, AND DEEDS OPERATING DISCHARGE. 161 330. What is the effect of a general discharge added to a discharge of particular debts ; and does a general dis- charge of all claims include (1) a claim of relief from a cautionary obligation undertaken for the debtor, on which the cautioner has not been distressed ; or (2) a debt which the granter had previously assigned, but of which the assignation had not been intimated ; or (3) a bill of which the term of payment has not ar- rived ? A general discharge, added to a discharge of particular debts, will include only (1) debts ejusdem generis ; and (2) debts of the like or less importance than those particularised.^ A general dis- charge of all claims will not include (1) a claim of relief from a cautionary obligation undertaken for the debtor, because the granter cannot be supposed to have had it in view;^ nor (2) a debt previously assigned by the creditor, although not intimated ; because the presumption is against an intention to transact in relation to a subject already conveyed away ;^(2/) but (3) it in- cludes a bill of which the term of payment has not arrived ; be- cause the debt is ascertained and not contingent, although the period of credit be still current. *(k) 1 Stair, 1, 18, 2 ; Brsk., 3, 4, 9. 3 Logan, M., 5041. 2 M'Taggart, 24tli Nov. 1830, H. * Adam, 9th May 1831, 9 S., 570. of L., 4 W. and S., App., 361. (a:) he continued to be so, the decision would prohably have been the same. In an earlier case. Tod, 13th Dec. 1838, 1 D., 231, where a similar question arose, the result was different, the security for the interest paid being held to have been extinguished ; but there the receipts were very special, viz., " Keceived by us, factors for A " (the creditor), " by our own hands, by stat- ing the same to B's " (the debtor) " debit, in account-current with ourselves, the sum of , being a year's interest," &c., " of which year's in- terest all concerned are hereby discharged ;" but even in this case Lord Fullerton, who had been the Ordinary to it, stated (in the case of Wood) that he had "come to the conclusion," " not without hesitation," that the secu- rity was extinguished. In neither case was it alleged that the debt was discharged quoad the debtor. (a:) Eeversing 6 S., 641. (y) This case is very shortly reported, but one ground of the decision was, " the general discharge does not import payment of the bond, without which the aebtor must be liable to the assignee," so that something may have turned on the terms of the discharge. {z) The case of Adam, referred to, turned on the construction of tlie L Digitized by Microsoft® 162 DISCHARGES, AND DEEDS OPEBATING DISCHARGE. 331. Can a guardian appointed in England, by a deed in the English form, competently discharge a Scottish heri- table bond due to his ward ? If the deed of appointment contains powers co-extensive with those belonging to guardians in Scotland it will be a good title to discharge ; but it is thought that the guardian must first make up inventories under the Scottish Statute of 1672, c. 2.^(6) 332. Is it necessary, when an obligation is followed by inhi- bition or adjudication, to make special mention in the discharge of such diligence ? State the reason. It is not absolutely necessary to make mention of the inhibi- tion or adjudication in the discharge ; because payment extin- guishes even a real burden without express discharge, as being merely accessory to the debt, and also has the lesser effect of re- ' Toung & Co., 8th July 1831, E.G. (a) Duff on Deeds, 259. terms of the discharge, which was one granted hy creditors, under a settle- ment by composition of all debts contracted (not due) previous to 1st June 1822. The bill was dated 25th May preceding, and the Court " considered that, on a fair construction, the discharge included that biU ;" but the de- cision hardly warrants the rule here deduced from it ; but see the case of Harris, 2d March 1822, 1 S., 370, where a discharge on composition was held to include a debt due at the date, but on which no composition was paid. (a) 9. S., 920. (6) So far as the case of Young & Co., cited, goes, it is adverse to the doctrine here stated. The Lord Ordinary found that a discharge by the guardian (who was a liferenter under the bond) for herself, and as taking burden on her for her sous, and by one of them, who was beyond pupilarity, would be valid. Before judgment was given in the Inner House, the par- ties had arranged to have a factor loco tuioris appointed to the children ; but the Court recalled the Lord Ordinary's interlocutor, as they were of opinion that the discharge hy the English guardian would not he sufficient. It is to be observed that powers of guardians in this respect depend on law, and not on the deed of appointment. A debtor in an heritable bond, destined to a married woman in liferent, for her liferent use allenarly, and her lawful children equally, whom failing, her own nearest heirs in fee, wished to pay it off, but raised doubts as to the power of the liferentrix to grant a valid discharge. Judicial factor appointed to concur with her in discharging, uplifting, and re-investing it under the same destination; Gowans, 10th March 1849, 11 D., 1028; and Prentice, ihid. ; Montignani, 17th Feb. 1866, 4 M'P., 461. Digitized by Microsoft® DISCHARGES, AND DEEDS OPERATING DISCHARGE. 163 moving the nexus of real diligence. But as it is of importance to the debtor that the discharge should appear on the proper register, it is always advisable to refer specially to the diligence, for the purpose of registration.' 333. Can a cautioner or stranger, on payment of the debt, demand an assignation from the creditor ? (1) A cautioner paying the debt is entitled to an assignation, to the effect of operating his relief. (2) "When payment is made by a stranger, the debtor cannot prevent him demanding an assignation, if the creditor chooses to grant it ; but the creditor cannot be compelled to grant an assig- nation unless the debtor shall consent. ^(c) 1 Duff on Deeds, 262. 2 Bell's Prin., 557, 558. (c) This statement may require further explanation. As laid down by Erskine (3, 5, 11), while every one who, not heing the debtor, pays a debt is entitled to an assignation, yet no creditor can be compelled to assign a right to his own prejudice. The circumstances under which such questions arise are generally either (1) where a creditor calling up his debt from the debtor is offered payment on an assignation to a third party, or (2) where a creditor, proceeding (as by sale) to make his security effectual, is attempted to be stopped by the holder of a postponed security tendering payment and demanding an assignation ; and the principles that regulate the two classes of cases may be stated in the words of Lord Mackenzie, who said (1), in Smith, 19th June 1844, 6 D., 1164, where the demand was granted — " A third party is not entitled to say to a creditor, I want an investment, give mo yours ; here is payment of your debt. While a creditor is content to retain his debt, he may do so ; but where he seeks to enforce payment, it is a different case. In the case I refer to, an agent or friend of the debtor, not a cautioner, offered payment to save him from jail, and I held, and the Second Division concurred, that if the creditor insisted on putting the debtor in jail, he must assign his security to a third party paying the debt ;" and (2) in Cunningham's Tra., 18th Dec. 1847, 10 D., 307, where the demand was refused, his Lordship observed — " The question then is, whether, seeing Hutton can sell, the postponed heritable creditor is entitled on payment to demand an assignation? To entitle him to do so, some legitimate reason must be stated. It would be a reason that the assignation was necessary to enable him to recover his debt, not that he is entitled to acquire or keep up a good investment. But there is no such legitimate reason here." See also Eainnie, 7th March 1822, 1 S., 377; M'Gillivray, 10th June 1826, 4 S., 697; Austin, 24th May 1827, 5 S., 701. Where an assignation is demanded on reasonable grounds, the debtor's refusal to consent would not defeat the right. l2 Digitized by Microsoft® 164 DISCHARGES, AND DEEDS OPEEATING DISCHAKGE. 334. What is the effect of a discharge to the principal debtor, reserving recourse against the cautioner ? Such a discharge is valid, as between the debtor and the creditor; but being a discharge of a qualified and conditional nature, it does not extinguish the obligation in a question with the cautioner, so as to exclude his recourse upon the debtor, if the creditor should enforce the claim against the cautioner. '(e) 335. A widow grants a general discharge of all she can ask or claim in and through her husband's death ; Does that include a claim for mournings, or her aliment to the next term ? State the reason. The general discharge does not include the widow's mourn- ings, because they are part of the husband's funeral expenses ; nor her aliment to the next term, because it is part of the family expense.^ 336. Discharges were granted to two debtors, one under a private composition-contract, and the other under the Sequestration Act of 64 Geo. Ill, " upon payment " of a composition ; "What is the effect of a discharge in each case? (1) The discharge upon payment under the private composi- tion-contract is conditional, and does not operate until payment of the composition ;(/) (2) but the discharge under the old Se- 1 Smith, 22d Nov. 1821, F.O.;((i) 2 Eennie, 16th May 1800, F.C. aff. 1 "W. and S., 815. (d) 1 S., 159. (e) In the case of Smith, quoted, the discharge was granted to the principal, on payment of a composition, reserving recourse against the cautioner for the balance, but it contained a special declaration that it should not be effectual to the principal, in case the cautioner should thereby be liberated ; and on this ground the cautioner was held liable. Had the discharge been absolute (unless under a sequestration) the cau- tioner would have been relieved. See Munro, 18th May 1821, 1 S., 19, where a tenant having subset a farm to another, with a cautioner, the sub- tenant deserted the farm, and the principal having resumed possession and sub-set it to another, the cautioner was held to be dischai-ged. See Ans. 339. (/) This would of course depend on the terms of the composition-con- tract, which might be framed so as to discharge the whole debt except the composition. See Woods, 9th Feb. 1860, 22 D., 723, where it was held not so to operate. Digitized by Microsoft® DISCHAEGES, AND DEEDS OPERATING DISCHARGE. 165 questration Act is absolute of the original debt, and the words, "upon payment," are interpreted, " except as to payment" of the composition.'(5f) 337. A discharge is granted to a debtor under a private com- position-contract, which contains an acknowledgment of the creditor's receipt of bills in security of the com- position, and an absolute release of the debtor ; "Will the discharge be effectual to the debtor, if he admits that the creditor did not receive the bills ; or that they were dishonoured, and that the composition was not paid ? (1) The discharge will not be effectual if it be admitted that the creditor did not receive the bills ; because the consideration of the discharge must be implemented.^(A) (2) But it will be binding although the bUls were dishonoured, and the composition was not paid ; on the principle of satisfaction, which wholly ex- tinguishes the debt, the creditor having accepted vouchers for the composition in fuU satisfaction of his claim.^ 338. What is the effect of the discharge of one obligant as affecting another ? (1) An unqualified discharge to an obligant liable for the whole debt, proceeding not upon payment but upon satisfaction, (A;) extinguishes the obligation as to all the obligants, on the prin- 1 BeU's Com., 5th edit., ii, 473. 3 Graham, 9th Dec. 1828, P.O. (a)' 2 Glass, 12th May 1825, 4 S., 1. {g) This was not properly a question of construction. The statute re- ferred to expressly bears that the order to he pronounced by the Court, under § 59, " shall declare the bankrupt discharged, except as to the pay- ment of the composition." An erroneous practice, however, of declaring the bankrupt discharged upon payment of the composition, had arisen, and the question as to the effect of this having come before the Court, it was held that the discharge must be read as if the proper statutory words had been used, and that in future the style of the order should be altered accordingly. (A) The claim, however, in Glass (cited) was restricted to the amount of the composition. («•) 7 S., 152. (k) It would be more accurate to have said, "without consideration," as where there is satisfaction acoeptilation may not arise. Digitized by Microsoft® 166 DISCHAEGBS, AND DEEDS OPERATING DISCHAEGB. ciple of aoceptilation ; because the party discharged having paid nothing to the creditor, has no claim of relief against the others. (2) Where one of the co-ohligants, liable pro rata, pays only (Z) his proper share, and receives an absolute discharge, the creditor's claim against the others is not affected. (3) An unqualified discharge to an obligant upon full pay- ment does not extinguish the obligation, but it subsists for his re- lief against the other obligants for the excess beyond his own share.' (See Answer, No. 247.) 339. How may a cautioner's obligation be extinguished otherwise than by express discharge ? (1) By the direct discharge of the debtor without the caution- er's consent.^ (2) By the discharge of a co-cautioner.^ (3) By extinction of the principal obligation, by payment, compensation, prescription, or otherwise.* (4) By the septennial limitation.^ (5) By an essential alteration on the obligation without the consent of the cautioner.'^ (6) By the creditor discharging any security or neglecting to complete a security, to the cautioner's prejudice.'' (7) By the creditor's refusal to accept payment when offered.^ (8) By liberation of the debtor after incarceration.' (9) By the creditor giving time to the debtor by positive con- tract, without the cautioner's consent.'" (10) By misrepresentation or concealment on the part of the creditor." 1 Stair, ] , 18, 5 ; Ersk., 3, 3, 74 ; ^ Wallace, M., 3389 ; BeU'e Prin., Duff on Deeds, 264. 264. 2 WaUace, ISth Jan. 1825, 3 S., 8 Cooper, 27tli June 1834, 12 S., 4S8. 884. 3 See Ana. 268. 9 Meuzies Leot., 210 (216). ■' Forbes, 1735, Eloh., Cautioner, 4. lo Macartney, 23d Sept. 1831, 5 B 1695, c. 5. W. and S., 5d4.(»i) 6 Bell's Prin., 259. n Royal Bank, 20th July 1844, 6 D., 1418. (Z) This should rather be " liable only pro rata, pays," &c. (m) Reversing 8 S., 862. Digitized by Microsoft® BILLS AND NOTES. 167 VII. BILLS AND NOTES. 340. In what respect do bills, as written instruments, enjoy higher privileges than deeds ? (1) They are probative, though not holograph, nor granted m re mercatoria. (2) They prove' their date without witnesses. (3) The designation of the drawer and acceptor is not essen- tial. (4) They may be accepted by one notary for sums exceeding £100 Scots.(ji) (5) They may be drawn, accepted, or indorsed by mark. (6) They are valid though issued blank in the payee's name. (7) They are transmissible by indorsation without intimation, and if blank indorsed, by delivery. (8) They operate as a complete assignation of funds in drawee's hands on acceptance, or protest for non-acceptance. (9) Indorsees acquiring the bill during its currency are not liable to latent objections. (10) They warrant summary diligence, and that on a charge of six days, without a clause of registration. 341. In what respects are foreign bills subject to the muni- cipal law of this country ? Foreign bills are subject to the municipal law of this country when it applies to them by positive statute, as in the case of pre- scription and execution ; but these instruments, being intended for the negotiation and adjustment of mercantile transactions be- tween the subjects of different states, are in other respects regu- lated by the general principles of mercantile law.'^ 342. Enumerate the essentials of bills. (1 ) The engagement to pay, which must be unconditional. (2) The person to whom payment is to be made, called the payee.(o) 1 Menzies Lect., 317 (327). (») See Ana. 345. (o) But see supra, 340, (6). Digitized by Microsoft® 168 BILLS AND NOTES. (3) The sum engaged for, which must be money, not commo- dities. (4) The time of payment, which must be a determinate period. (5) The stamp.i 343. Is a bill valid drawn and accepted on Sunday? A bill drawn on Sunday is valid ; ^ {p) -but it is doubtful whether an acceptance dated on Sunday is effectual. In England such an acceptance is held to be invalid ; ' but the English act prohibiting Sunday trading is somewhat broader than the Scottish statute. 344. May a legacy be made by a bill ? A legacy may be made by indorsing a bill ; * but it is doubtful whether an acceptance granted as a legacy would be sustained. 345. What is the effect of bUls signed by initials or mark, or by a notary or notaries, with or without witnesses ? (1) A bill signed by initials or mark, either with or without witnesses, is binding, on proof that this is the party's usual mode of subscription, and that the subscription is genuine. But such a bill will not warrant summary diligence ; because its genuineness requires to be proved by extrinsic evidence. (2) A bill signed by two notaries and four witnesses, with a notarial docquet, is valid ; and as that mode of execution is proba- tive in formal deeds, such a bill warrants summary diligence. (3) A bill signed by one notary and two witnesses wUl be sustained in an ordinary action ; but it seems not recoverable by summary execution. (4) A bill signed by a notary or notaries without witnesses is not probative, but will be sustained on proof of authority ; be- cause a bill signed for the granter by another person, although not a notary, is binding on proof of authority.' 1 Bell's Prin., 309. * Barbour, M., 6097. ' Elliot, 20tli Jan. 1844, 6 D., 411. 5 Bell's Com., i, 307 ; Dickson 3 Broom's Legal Maxims, 21 ; Bvid., i, 412 (§ 794) ; Thomson on Menzies Lect., 323 (334). Bills, 534 (31). (p) The bill in Elliot's case was drawn in London, and it was observed that the date of acceptance is that on which the obligation is entered into. Digitized by Microsoft® BILLS AND NOTES. 169 346. What is the effect of a bill written on paper unstamped, or bearing a wrong stamp ? (1) A bill written on unstamped paper is null ; (2) when a Btamp of a higher value and of the proper denomination is used, the bill is good ; (3) when lihe stamp is of a wrong denomination, but of the proper value, it may be rectified on payment of a penalty ;(r) (4) when a bill, drawn in and payable out of the United Kingdom, purports to be one of a set, the whole must be delivered duly stamped, otherwise the amount is not recoverable.^ 347. Is it necessai-y that the. place and date of drawing be superscribed in bills ? (1) It is not necessary to superscribe the place ; unless per- haps (1) when required by the terms of the bill to ascertain the place of payment, as when the drawee is [ordered to "pay me here;" and (2) in bills drawn at usance, as the date of payment of such bills cannot be ascertained without knowing the place at which the bill is drawn.^ (2) The date is not indispensable, unless for summary dili- gence, it being provided by the Mercantile Law Amendment Act that "where any bill of exchange or promissory -note shall be issued without date, it shall be competent to prove by parole evi- dence the true date at which such bill or note was issued, pro- vided always that summary diligence shall not be competent on any bill or note issued without a date."^ 348. What is the presumption with regard to the date of an indorsation ; and what is the effect of that presump- tion in questions with arresters, and the heir chal- lenging on deathbed ? The indorsation is held to be of the same date as the bill ; and the effect of the presumption is, (1) in questions with arrest- ers, that it protects a bona fide onerous indorsee against diligence used to attach the fund in the acceptor's hands subsequent to the date of the acceptance, although before the actual date of indor- 1 See Stamps, Ans. 176 ; 17 and 2 Menzies Leot., 321 (332). 18 Vict., c. 83, §§ 5, 6. 3 19 and 20 Viot., 0. 60, g 10. r) Besides the duty. See note to Ans. 175, Digitized by Microsoft® 170 BILLS AND NOTES. sation ;'(s) and (2) in a question with the heir, it protects the in- dorsation from challenge on the head of deathbed, if the hill itself is not exposed to that challenge.^ But the Mercantile Law Amend- ment Act enacts that, when a bill shall be indorsed after the term of payment, the indorsee shall be deemed to have taken it subject to all objections or exceptions to which it was exposed in the hands of the indorser f and it further provides, that when bills or notes are issued without a date, the date may be proved by parole evidence ; * and accordingly it is thought that the true date of the indorsation may be proved by parole, in order to ascertain whether the indorsee is liable to the objections adverted to, 349. Enumerate the different modes of fixing the date of payment of bills. The term of payment may be (1) at a specified date; (2) so many days, weeks, or months after date ; (3) at sight, or at a cer- tain period after sight ; (4) on demand ; (5) in foreign bUls, at usance, double, treble, or half usance. 350. What is the effect of a bill written by the drawer, and having his name inserted in gremio, but not signed by him ? Such a bill requires to be binding ; but it will not warrant summary diligence, because the fact of its being holograph, which is the test of its validity, requires to be proved.^ 351. What is the effect of a bill drawn or accepted with a contingency or condition ? (1) A bill drawn with a condition or contingency is null as a bill ; but this rule does not strike at the usual condition in foreign bills drawn in sets, each payable if the others be not paid.^ 1 Smith, M., 1502. * 19 and 20 Vict., u. 60, ? 10. 2 Thomson on BiUs,' 60 (36); Ken- 6 M'Bean, 22d Nov. 1806; Hume, nedy, M., 1477. 57 ; Dickson Evid., i, 413 (§ 795). 3 19 and 20 Vict., c. 60, § 16. « Bell's Com., i, 896 (i, 309). («) It may be doubted whether the rule here stated rests on the presump- tion referred to, and does not rather follow from the quality which the draw- ing and acceptance of the bill attaches to the fund by operating as an assig- nation thereof in favour of the holder of the hill at maturity. Digitized by Microsoft® Bi;.LS AND NOTES. 171 (2) The acceptance may be conditional, and such an accept- ance will be effectual on the condition being fulfilled. But it must appear on the bill, or at least be in writing, and the payee must give immediate notice of the conditional acceptance to the drawer and the other parties interested. "■ 352. "What is the meaning of acceptance for honour ; and what is the extent of the liability of such an acceptor, and of his recourse on payment ? Acceptance for honour is when a person interposes for behoof of the drawer, or any of the indorsers, and accepts the bill supra protest, in order to prevent its return with a charge of interest, exchange, and costs ; and the effect of the acceptance is to render the acceptor liable to all the parties in the bill, except to him for whose honour he has accepted, and to preserve recourse on payment against that party and all who, on the bill, are respon- sible to that person.^ 353. A bill was drawn and accepted, payable to the drawer or order, " or failing me by decease, to my second son," and was indorsed by the drawer to the second son ; Was it a good bill to the indorsee ? State the reason. No ; because when the bill is drawn, both the obligation and the payee must be certain, and not conditional or alternative.^ 354. A bill addressed to "A B, factor of Islay," was drawn " for value in account with C D of Islay," and was accepted " A B ;" Did that import a personal obliga- tion on A B ? State the reason. Yes ; because the words " for value in account," &c., merely point out the party on whose account A B acknowledged himself to hold or to have received value, while the acceptance, and con- sequent obligation to pay, are absolute.*(i) ' Thomson on Bills, 349 (223). * Chiene, 20th July 1848, 10 D., » Bell's Com., i, 313 (i, 401). 1523. 3 Inglis, M., 1404. (*) The first question inyolved in Chiene's case was whether the accept- ance was that of Chiene himself, or of Islay, hinding himself by his factor, and turned rather on the address of the hill than on the wording of the in- Digitized by Microsoft® 172 BILLS AND NOTES. 355. What is the effect of an acceptance anterior to the writing of the bill ? The acceptor is liable for any sum afterwards inserted, to which the stamp is applicable ; on the principle of a mandate by the sub- scriber to the holder to fill up what sum he pleases, limited only by the operation of the Stamp Acts.' 356. A draws a foreign bill upon his debtor B, payable to C, who presents it for acceptance, and protests it for non-acceptance ; D, a creditor of A, afterwards serves an arrestment in the hands of B, to attach the fund due by him to A ; Is the arrestment preferable to the claim of C, the holder of the bill ? State the reason. No; because where a drawee has funds belonging to the drawer, presentment for acceptance, and protest for non-accept- ance, are equivalent to an intimated assignation of the sum drawn for f and therefore 0, the creditor in the bill, is preferred to D, a posterior arrester.^ 357. What is the effect of an indorsement, (1) to " A B only;" (2) " to A B, for my use ;" (3) " to A B, without re- course ;" (4) of an indorsement with a condition an- nexed ? (1) An indorsement " to A B only," prevents the indorsee from re-indorsing the bill. (2) An indorsement " to A B, for my use," is restrictive, making the indorsee the indorser's mandatory, whose mandate may be recalled at pleasure ; but the indorsee may discount the bill, the presumption being that he acts for his constituent.(t4) 1 Smith, 27tli Feb. 1824, 2 S., 2 BeU's Prin., 339. 755 ; Grassick, Sth July 1846, 8 D., 3 Gavin, M., 1495. 1073. strument. The words " factor of Islay " were held to be simply a designa- tion, and the acceptance to be that of the individual himself. The second question was as to the effect of the words " value in account," which it was argued made the obligation contingent on the factor being possessed of funds of his constituent ; but this was overruled. See on this point note (i) , to Ans. 365. (u) Professor G. J. Bell, in his Commentaries, does not make the dis- Digitized by Microsoft® BILLS AND NOTES. 173 (3) An indorsement " to A B, mthout recourse," prevents any demand from coming back on the indorser, who would otherwise be liable. ■ (4) A condition annexed to an indorsement will be binding on the acceptor, if the bill should he accepted with the condition in the indorsement, and the non-performance of the condition will re-invest the debt in the indorser.' 358. What is the drawer's obligation on signing the bill ? By signing the bill, the drawer engages conditionally to pay it in the event of the drawee's failure to accept or pay, provided due notice be given to the drawer of the dishonour.^ 359. In what circumstances may a bill be transferred by de- livery ? (1) When made payable to the hearer; or (2) to a payee nojrw'- natim, or the bearer ; or (3) when blank indorsed. 360. What is the effect of a party's indorsing a hill when there is no previous indorsation ? It has been held that such an indorsation has the effect of a collateral undertaking by the indorser, by which he renders him- self liable as an obligant along with the acceptor. ^(w) But this doctrine scarcely appears to he consistent with the Stamp Laws as applied in the case cited infra* where it was held that the addi- tion of a new obligant vitiated the bill, as it altered the obligation to which the stamp applied.^ 361. A bill was blank indorsed by A, B, C, D, and E, suc- cessively ; C having subsequently paid the contents to E, obtained delivery of the bill, and deleted the in- iBeU's Com., i, 316 (i, 402); * Homes, 7th June 1836, 14 S., Thomson, 274 (185). 898. 2 Bell's Prin., 311. 5 See Bell's Com., i, 313 (i, 404). 3 Watters, 7th March 1818, F.O. tinction here stated between the cases 1 and 2. He says (Com., i, 402, 5th ed.) — " 'Pay to A B only,' or ' Pay to A B for my use,' is restrictive, and gives no power to re-indorse." Mr Thomson states the rule as in this answer. It is not easy to discover any principle for the distinction. {x) The same found, Don, 26th May 1812, F.O. Digitized by Microsoft® 174 BILLS AND NOTES. dorsations of D and E ; C then, without re-indorsing the bill, delivered it for value to B, who filled up the previous indorsation by A; Was the bill validly re- transferred to C and B, respectively ; and has B a claim on the bill against G ? State the reasons. (1) The bill was validly re-transferred to C ; because an in- dorser is eifectually re-invested by delivery of the bill, and by de- leting the indorsations subsequent to his own. (2) It was like- wise validly re-transferred by C to B, in virtue of the former's original indorsation.^ (3) But B has no claim against C ; because, although he recovered from C, the latter would be entitled under the same document to recover back its amount from B as a prior indorser, and, therefore, the maxim is applicable, frustra petis quod mox es restiturus.^[y) 362. Whether ought the husband or the wife to indorse bills in which the latter is payee ? The husband is alone entitled to indorse such bills, the wife's indorsement being null ; because by marriage the husband acquires right to all his wife's personal claims.^(z) 1 Fairholms, M., 1474 ; Adam, 2 Dickie, 27th Feb. 1828 ; 6 S., 13th Dec. 1827, 6 S., 244. 637. 3 BeU'a Com., i, 309. (y) This (3) branch of the answer is correct, but the reason, taking the case of there being no re-indorsation, as it is put in the question, is wrong. The true reason is simply because B, as the prior indorser, was all along liable to C, and could never have a claim against him. There is probably some mistake in the way of stating the question, as in the ordinary mode of deal- ing with bills, " to deliver one for value to a prior indorser," is just to make effectual the recourse to which the indorsee is entitled, and in such circum- stances re-indorsation would be incorrect. In the circulation of bills before maturity, the same person might appear more than once as an indorser, but if called on to pay the bill, he, for the reason stated in the answer, could not claim recourse against any one whose indorsation was subsequent to his own first one. The question, however, in Dickie's case, supra, was not of this nature. The bill there had been re-indorsed, not in the way now referred to, but, as was alleged, as a guarantee for the acceptor. Nothing was de- cided, the action having been dismissed as irrelevantly laid. (z) The right acquired by the husband is undoubted, but an indorsation by a person who ex facie of the bill has no right to it, seems liable to objec- tion. An action on it would be in name of both, and probably the indorsa- Digitized by Microsoft® BILLS AND NOTES. 175 363. Is a holder of a bill, who has acquired right to it from the drawer by indorsation, or by assignation, subject to objections pleadable against the drawer? (1) The holder of a bill who has acquired right to it, during its currency, by indorsation, is not subject to such objections, un- less he has not paid value, or is aware of the bill having been dis- honoured by refusal to accept. - (2) An indorsee who has acquired right to the bill after the date of payment, is liable to all the objections to which the bill was subject in the hands of the indorser.^ (3) The holder of a bill who has acquired right by assignation, is subject to all the objections pleadable against the cedent.^ 364. When a bill has been lost or stolen, or fraudulently ob- tained, or is alleged to have been accepted for the drawer's accommodation ; By whom must value be proved, and what is the nature of the proof ? (1) When a bill has been lost or stolen, or fraudulently ob- tained, the holder must prove that value was given by him ; but such proof may be parole.* (2) When a bill is alleged to have been accepted for the drawer's accommodation, the acceptor must prove the averment, and that only by the writ or oath of the drawer,' unless there are circum- stances raising a strong suspicion of fraud, which, it has been held, let in circumstantial evidence to prove the want of bona fide con- sideration.''(a) 365. What is the meaning of the words "value received," or "value in account per invoice," in bills in which the payee is named ? 1 Bell's Com., i, 316 (i, 403). » Cargill, 12th. Feb. 1852, 14 D., 2 19 and 20 Vict., c. 60, § 16. 485. 3 Brown, 5th June 1793 ; Hume, 40. ^ Bannatyne, 13th Dee. 1855, 18 * 19 and 20 Vict., c. 60, § 15. D., 230. tion should he by both. See Smith, lOtli July 1829, 7 S., 885 ; but in Summers, 6 D., 286, Lord Mackenzie expressed doubt as to the judgment in Smith, as not having given sufficient effect to marriage as operating an assignation to husband. As to diligence on such bills, see infra, 878. (a) It will be kept in view that this defence cannot be pleaded against a bona fide onerous indorsee. Digitized by Microsoft® 176 BILLS AND NOTES. The words "value received," import that value has been re- ceived, not by the acceptor from the drawer but by the drawer from the payee ; because " it is more natural that the party who draws the bill should inform the drawee of a fact which he does not know, than of one of which he must be well aware." But " value in account per invoice," expresses value between drawer and aoceptor.''(J) 366. When a bill is found in the indorser's (c) repositories iByles, 61 (8th ed., 77) ; Menzies Lect., 343 (354); Scott, M., 1536; WOson, 1st Feb. 1848, 10 D., 560. (b) The object of the distinction here stated, which may perhaps not be very apparent, is to enable the acceptor, where the payee has not actually given value to the drawer, to plead objections against the payee, which otherwise he could state only against the drawer ; but it may be doubted whether in Scotland there is any foundation for such distinction, which seems to rest on the authority of an English case. In the case of Scott, quoted, the question was whether value was to be presumed where the bill did not bear that it had been received. In the case of Wilson, also quoted, the expression in the bill was " value in account as per advice from " the drawers, and it was held that these words referred to value as between the drawers and acceptors; but Lord Medwyn, in delivering his opinion, made the following observations : — " An English case was quoted to us (Da Costa), which it was said supported the view that " value received " referred to the payee, on the ground that the drawer informs the drawee that he draws on him in favour of the payee, because he has received value of such payee, as it was unnecessary to tell the drawee that he had the drawer's funds in his hands. This was a case in pleading, and this may have been an ingenious remark to support the declaration prior to proof as to the real value. But I suspect Judge Bailey gives the true account of the insertion of such words — to inform neither the drawee nor payee of the value between the drawer and the one or the other, but for the public to show that it is not an accommoda- tion bill, but for a valuable consideration, which applies of course to the ori- ginal constitution of the bill by the assertion of value in the drawee's hands, admitted by the acceptance, and undertaking to pay it." If there were but two parties to the bill, neither of the expressions in question could refer to any one but the drawer ; and the mere insertion of a payee seems to afford no ground for attaching a different meaning to them. 'The words " value in account," when used in an indorsation, may sometimes have a peculiar mean- ing, and may prevent the property in the bill from passing to the indorsee, except in so far as he has given value. See Forbes, M., 1472, where in a competition between the indorser and an executor-creditor of the indorsee the former was preferred. See also as to the subject of this answer, Chiene, supra, p. 121, note 2. (c) Should be " indorsee's.' Digitized by Microsoft® BILL8 AND NOTES. 177 with a general receipt of payment upon it, by whom is it presumed that payment was made, and what is the eifect of the presumption ? The legal presumption is, that payment has been made by the acceptor, and the debt will be extinguished, unless the contrary be proved by the acceptor's writ or oa.th.}(d) 367. Is immediate presentment for acceptance necessary in the case of a bill payable at a day certain when sent to the payee, or when forwarded to an agent for nego- tiation ? (1) "When a hill payable at a day certain is sent to the payee, without instructions, it is unnecessary to present it for acceptance until due, because the term of payment is fixed by the instrument itself.(e) (2) But when the payee is instructed to present the bill, or it has been sent to an agent for negotiation, it must be presented immediately, because acceptance adds greatly to the security of the hill.2 368. At what time must a bill or note be presented for pay- ment? 1 Martin, 8th Dec. 1854, 17 D., 2 Bell's Com., i, 322 (i, 408) ; 143. Menziea Lect., 352 (362). (rf) There is a most important element in the case of Martin, referred to, omitted in this statement, viz., that the acceptance had been cancelled by scoring the acceptor's name at least with the tacit consent of the parties who claimed on it; and the bill was not found in the indorsee's repositories. Had the holder simply deleted the receipt and all the indorsations suhse- qnent to his own, and allowed the acceptor's name to stand, the presumption might have been the other v/ay ; but it would be a safer practice, in such a case, either to allow no receipt to be written on the bill, or to have the real payer's name inserted in it. A bill found precisely as stated in the question might raise no such presumption, because it might simply be that the last indorsee had put a receipt on the bill, though it is better not to do so, in an- ticipation of payment which he had not got, (e) This rule holds betwixt the payee and the drawer ; but if the ques- tion were to arise between indorsers, and acceptance and payment were re- fused in consequence of an inters'ening arrestment against the drawer, re- course might possibly be lost. M Digitized by Microsoft® 178 BILLS AND NOTES. (1) If payable on demand, the presentment must be immedi- ate ; but if the bill has been put in circulation, it will be sufficient to present it on the day after its receipt by post. (2) If payable so many days after sight, it must be presented on the last day of grace after expiration of that time, reckoned from the date of acceptance. (3) If payable at sight, it must be presented on the third day after acceptance, if such bills have days of grace, which is doubtful ; but if they ha-^e not, the same rule applies to such bills as to bills payable on demand. (4) If payable at a day cer- tain, the bill must be presented on the last day of grace. ^ (5) The bill must be presented at a reasonable time before the day is out, (/) and, if payable at a banker's, within bank hours.^ (6) When the bill has been accepted for honour, it is unnecessary to present it to the acceptor until the day after it becomes due, or if he does not reside where it is payable, it is sufficient to dispatch it for pre- sentment by the post of that da,j.\g) 369. At what place must a bill be presented for paynjent? (1) If a place of payment is specified in the bill, presentment must be made at that place. (2) If a place of payment be speci- fied by the acceptor in the acceptance, that is held to be a general acceptance, and it is not indispensable that presentment be made at the place specified, but it may be made to the acceptor himself. (3) But if the acceptor specifies a place, and adds the words, " and not elsewhere," or "there only,'' that is a qualified acceptance, and presentment must be made at the place. (^) (4) Where no 1 Thomson, 430, 276, and 296 ; 2 Thomson, 437 (302). Bell's Prin., 337. 3 6 and 7 Will. IV, e. 58. (/) In reference to this point. Professor Bell says, " If hy the known custom of the place hills arc payahle only within limited hours, a present- ment beyond these hours will not be sufBcient" (1 Com., 411). The safe course is to present bills within bank hours ; and in case of bills payable on demand, any other course might he very hazardous. (g) " If the day following the day on which such hill of exchange shall become due shall happen to be a Sunday, Good Friday, or Christmas Day, or a day appointed by His Majesty's proclamation for solemn fast or of thanksgiving, then it shall not be necessary that such bill " shall be pre- sented or forwarded " until the day following ; " 6 and 7 Will. IV, o. 58, J 2. (A) The rules 2 and 3 are contained in the Act 1 and 2 Geo. IV, c. 78, which Professor Bell (Com., i, 413, note) says seems to be applicable to Scotland as well as to England. Digitized by Microsoft® BILLS AND NOTES. 179 place is mentioned, presentment must be made to the acceptor personally, or at his residence, or at his place of business, if held out by him as his office for all purposes ; and if a company, at their place of business. (fc) (5) If neither the acceptor nor his residence can be found, presentment should be made to some one authorised to act for him, and at the exchange and market-cross ; and if he is out of the kingdom, at the market-cross of Edinburgh, and pier and shore of Leith, and also at the party's last residence. (6) If he is dead, presentment should be made to his heirs. (7) If the acceptor has absconded, and has no house or place of trade, the bill is held to be dishonoured.' 370. Within what time must notice of dishonour be given in the case of inland and foreign bills, to preserve re- course against the drawer and indorsers ? Notice of dishonour of foreign bills, and now also of inland bills, must be given within such time as is required by the usage of merchants ; the rules apparently being, that notice must be given to persons residing in the same place before the expiration of the day after the dishonour ; and to persons resident elsewhere, by next post ; or if the proper day of notice be a day of public rest, it win be suflicient on the following day ; (Z) and notice by each successive indorsee to the indorser preceding, must be given on the day following the receipt of notice to himself.^ 371. Does the omission to give notice of dishonour of an ac- cepted bill in the hands of an indorsee operate relief to all concerned ? State the reasons. The omission to give notice operates relief to the drawer and indorsers, because they are entitled to such notice in order to en- 1 Thomson, 418 (286, et seq.) ; 2 Thomson, 451 (344) ; Bell's Bell's Com., i, 323 (i, 413) ; Men- Com., i, 331 (i, 417); 19 and 20 zies Lect., 355 (366). Vict., c. 60, ? 14. (k) Presentment at a place of business should be during business hours. What constitutes business hours is a jury question ; Neilson, 7th Feb. 1843, 5 ]>., 513. (l) Found in Mackenzie, 18th July 1861 , 23 D., 1310, that where a bill fell due on a Saturday, notice of dishonour was duly given if it reached the party on the Monday following. M 2 Digitized by Microsoft® 180 BILLS AND NOTES. able them to take measures for their own security. But (1) want of notice will not relieve the acceptor, because he is the proper debtor and has no recourse ; nor (2) the drawer or indorsers of ac- commodation bills, for the same reason ;'(to) (3) when notice has been waived, or the want of it occasioned by delay consented to by the drawer or indorsers, they will not be released, being barred personali exceptione from pleading want of notice ;' (4) nor where they are aware of the dishonour ; because notice is not a solemnity, but merely a requisite for enabling the parties to take steps for their security, and it is, consequently, unnecessary when they are in the knowledge of the dishonour.'(TO) (5) Where the acceptor has no funds, the holder is not bound to give notice to the drawer, because he suffers no damage by the want of it.*(o) 372. What particulars ought the notice of dishonour to specify ? The notice of dishonour should import (1) that the bill was not accepted or not paid; and (2) that the holder claims in re- course from the person to whom notice is given, payment of the sum in the bill, interest, costs, and re-exchange. The bill ought 1 Goldsmid, 26th May 1814, F.C. 3 Davidson, 25th Feh. 1791 ; 2 Watson, lOthMarch 1824, 2 S., Hume, 34. 782; Cairns' Trs., 23d June 1836, * Littlejohn, M., 1569; Men- 14 S., 999. zies Lect., 362 (373). (m) The cases here must be distinguished. It is only the party for whose accommodation the bill is drawn who is not entitled to notice. An indorser is entitled to notice where the bill is for the accommodation of the drawer ; Orr, 10th June 1792, Hume, 86 ; or of the acceptor ; Brown, 14th June 1809, Hume, 62. The drawer is entitled to notice where it is for ac- commodation of the acceptor ; Goldsmidt, 26th May 1814, F.C. ; Hume, 37 ; Bell's Com., i, 429, note 6 ; or of an indorsee, Henderson, 24th Nov. 1829, 8 S., 121. Knowledge that the bill is an accommodation one does not ob- viate the necessity for notice ; Orr and Brown, supra. («) In Davidson's case, mpra, note 3, the drawer had, during the cur- rency of the bill, written to the holder intimating the acceptor's bankruptcy ; desiring him to raise diligence on it when due ; ' and stating that he would pay it. The safe course is to give notice, in case of knowledge being denied and difficulty in proving it. (o) Unless it be a bill for the accommodation of the acceptor. See note (m), supra. Digitized by Microsoft® BILLS AND NOTES. i81 to be minutely described, so as to make it safe for the party to proceed against the drawer or prior indorsers for security.^ 373. In what oases and for what purposes is notarial protest necessary ? Notarial protest is indispensable for the following purposes : — (1) In foreign bills, to preserve recourse against the drawer and indorsers on non-acceptance or non-payment,^ but not in in- land bills.' (2) To enable an acceptor for honour to recover against the person for whose honour he has accepted.* (3) For summary diligence.'' (4) It may be doubted whether notarial protest be still the only competent evidence of the assignment to the payee of funds in the drawee's hands consequent on his refusal to accept,(p) the Mercantile Law Amendment Act dispensing with notarial protest only where that was necessary in the case of inland bills for pre- serving recourse against the drawer and indorsers.* 374. Against whom, and for what, is protest taken when a foreign bill is protested for non-acceptance ? Against the drawee for non-acceptance ; and against the drawer and indorsers, jointly and severally, for recourse ; and against all concerned for interest, exchange, re-exchange, damages, and ex- penses.' 375. What are the proofs of a claim by one who accepts and pays supra protest ? (1) The protest and act of honour; (2) the retired bill; and (3) evidence of notice.* 376. "When a bill is accepted supra protest, whether should » BeU'a Com., i, 330 (i, 415). « Bell's Prin., 338. " BeH'a Prin., 836. " 19 and 20 Vict., c. 60, § 13. ' 19 and 20 Vict., c. 60, g 13. ' Menzies Leot., 357 (368). * BeU'a Prin., 322. « Bell's Com., i, 314. (p) There seems to be no reason to suppose that the Act referred to has made any change in this respect, or that any evidence but that of notarial protest would be sufficient. Digitized by Microsoft® 182 BILLS AND NOTES. the jarotest be before or after acceptance ? State the reasons. The protest should be before acceptance; because (1) that is the sole check against officious or fraudulent interference ; and (2) without protest there can be no recourse against those responsible to him for whose honour the bill is accepted.' 377. What are the leading enactments of the Act 1681, c. 20, regarding execution on foreign bills; and what subsequent extension was made of the provisions of that statute ? (1) The Act 1681, c. 20, enacts that when a foreign bill is protested for non-acceptance or non-payment, the protest having the hill prefixed shall be registrable within six months after the date of the bill, in case of non-acceptance, and after the falling due thereof, in case of non-payment, in the books of any competent judicatoi-y ; at the instance of the payee, or his order, against, the drawer or indorser where for non-acceptance, and against the ac- ceptor where for non-payment ; to the effect that summary diligence on six day's charge may proceed thereon in the same manner as upon registered bonds or decrees of registration. But it is pro- vided that if the protest be not registered within six months, the amount shall be recoverable only by ordinary action, (r) It is further provided that interest shall run on the bill from its date, in case of non-acceptance, and from the date of its falling due in case of non-payment, and that the holder may pursue in an ordi- nary action for exchange, re-exchange, interest, damages, and ex- penses, although these are not contained in the bill. (2) By the Act 1696, c. 36, it is declared that the same exe- cution should be competent upon inland bills as is provided to pass upon foreign bills by the Act of 1681, which was extended to inland bills in all points. 1 Bell's Com., i, 313. (r) The holder of a dishonoured bill, after the expiry of the six months, applied to the Court for authority to the keeper of the register to record the protest and grant warrant for summary diligence, in respect that they had been prevented by an interdict at the instance of the drawers, afterwards recalled, from recording within the six months. Petition refused, and ob- served that the Court had no jiower to grant it ; North British Bank, 19th July 1848, 10 D., 1505. Digitized by Microsoft® BILLS AND NOTES. 183 (3) By the Act 12 Geo. Ill, o. 72, § 36, made perpetual by 23 Geo. Ill, 0. 18, § 55, it is provided that the same diligence should be competent upon promissory-notes as upon bills ; that they should bear interest as bills, and pass by indorsation ; and that indorsees of notes should have the same privileges as in- dorsees of bills. (4) By section 42 of the Act 12 Geo. Ill, c. 72, it is enacted that summary execution should pass upon bills whether foreign or inland, and whether accepted or protested for non-acceptance, and upon promissory -notes, not only against the acceptors of the bills or granters of the notes, but also against the drawers and indorsers, jointly and severally, excepting where the indorsation is qualified to be without recourse. (5) By section 43, it is provided that summary diligence should be competent to an indoTsee, although the protest is not in his name, and although the bill is not re-indorsed to him, provided he produces a receipt or missive letter from the protesting indorsee shewing that value has been paid to him.(s) 378. Is summary diligence on a bill payable to a woman, who is afterwards married, competent at the instance of her husband? State the reason. The husband is not entitled to protest the bill in his own name, and then to use summary diligence at his instance, unless the bill has been indorsed by the wife before marriage ; because that privilege is confined to the payee specified in the bill or note, or his order, and in this case there is nothing on the face of the document to shew that the husband had acquired right to it.^(i) 1 Smith V. Selby, 10th July 1829, 7 S., 885. (s) It was questioned whether, under the statutes, summary diligence was competent on a bill drawn and payable in England. Held that it was ; Don, 13th June 1850, 12 D., 1016 ; Mackenzie, 12tb Deo. 1854, 17 D., 164. It had also been so held in the previous case of Jowett, 8th July 1797, Hume, 403. Here two Englishmen who had granted a bill to another Englishman came transiently to Scotland, and after being a month there were arrested at the creditor's instance on a meditatione fugce warrant, and afterwards, while in jail, on horning and caption, raised on the bill and re- gistered protest. They presented a bill of suspension and liberation ; which was refused. {t) See supra, 362. If, as there stated, the husband could indorse the Digitized by Microsoft® 184 BILLS AND NOTES. But in the case cited it was suggested that diligence on a protest, taken in name of both the wife and the husband, would have been competent, evidence of the marriage being produced in the Bill Chamber. 379. When is a bill payable on demand exigible ; within what time must summary diligence be raised on such a bill ; and from what time does the sexennial pre- scription run on it ? (1) A bill payable on demand is exigible at its date ; (2) sum- mary diligence is competent within six months after a demand has been made, although more than six months after the date of the bill ; ^ (3) the sexennial prescription on a bill payable on de- mand runs from its date.^ 380. May an acceptance, blank in the name of the drawer, found in the repositories of the holder, be signed after his death by his executor to the effect of war- ranting summary diligence ? State the reason. It has been held that such an acceptance may be signed by the executor of the holder as drawer, and that diligence may pro- ceed in his name ; on the principle that the acceptance is an un- dertaking to pay the person who shall have right to the docu- 1 Bon, 21st Feb. 1846, 12 S., 2 Stephenson, 16tli June 1807, 13]0.(m) M., App., " Bill," No. 20. bill so as to transfer the right to it, there seems to be no reason why he should not raise diligence on it, as in both cases the validity depends on his being vested with right to the bill. In the ease of Summers, 16th Dec. 1843, 6 D., 286, Lord Mackenzie expressed some doubt of the decision in Smith, supra, on the ground that " marriage operates an assignation which is held to be intimated to all the world." The diflnoulty of the case arises from the necessity for the title of a person applying for summary diligence appearing ex facie of the bill and relative documents, while the fact that the husband is really such does not so appear. This evidence of title is as essential to a valid indorsation, because if he cannot himself raise diligence on the bill, he cannot by indorsation put any one else in a position to do so. In Smith, Lord Gillies suggested that " the protest should have been in name of both " husband and wife ; and perhaps if diligence is in such a case to be attempted, the best way might be to adopt that course, and then to raise horning proceeding on a bill. (u) Reported 20th July 1850, 12 D., 1310. Digitized by Microsoft® BILLS AND NOTES. 185 ment.'(a;) But Lord Ivory doubts this, and recommends an ordi- nary action ; because the executor's title does not appear ex facie of the instrument.^ 381. A protest was taken in name of the treasurer of a bank while the receipt to an indorser was granted by a branch agent ; Was summary diligence competent ? State the reason. Summary diligence was incompetent on such a protest and re- ceipt ; because they did not afford evidence ex facie that value had truly been paid to the bank, the protesting indorsees.''(?/) 382. Where an indorser pays upon a receipt by a protesting indorsee, after registration of the protest, can he proceed with diligence in his own name on the ex- tract registered protest ? State the reason. It has been held competent for an indorser who had paid the last indorsee to raise horning, at his own instance, on a protest > M'Donald, ISth June 1817, F.C. » Summers, 16th Dec. 1843, 6 D., ^ Ivory's Notes, 69 ; Ersk., p. 624. 286. (x) In the case of M'Donald, cited, the procedure was by ordinary action, not summary diligence. The same course had been previously adopted iu similar cases; Eobertson, M., 1676, where action was refused, and Fair, M., 1677, where it was sustained, and the report bears — " It was likewise said " (on the Bench) " that a blank acceptance found in the repositories of a de- funct may be filled up by his representative, and diligence may proceed in his name ;" but there seems to be no decision to this effect, and an ordinary action is certainly the safer course. It may be noticed, however, that bills accepted blank in the drawer's name, or bill stamps signed blank, may be filled up by a different person, as drawer, from him to whom they were given, and be made the ground of summary diligence ; Smith, 27th Feb. 1824, 2 S., 755, where it was observed, " that if a holder had truly given value for a skeleton bill, it was of no consequence whether he appeared on it in the character of drawer or indorsee ;" and Grassick, 8tli July 1846, 8 D., 1073. (y) The same principle was followed in Fraser, 21st June 1853, 15 D., 756. Here there were two indorsations in these terms : — " Pay to the Agent of the North of Scotland Banking Company, at Macduff, or order. Alex. Lillie ;" and " Pay to the Manager, North of Scotland Banking Company, Aberdeen, or order. Robert Adam, agent ;'' and it was held that, the agent not having been named, summary diligence could not proceed at his in- stance, or at the instance of any indorsee from liim. Digitized by Microsoft® 186 BILLS AND NOTES. recorded in name of the indorsee, the receipt operating as an im- plied assignation ; ^ (z) and according to the principle of that case, it is said by Professor Menzies, that " an indorser paying upon a receipt by a protesting indorsee would appear to acquire right to the extract, and to be entitled now to obtain a fiat for diligence in his own name, under the 7th section of the Act 1 and 2 Vict., c. 114 ; " but it is recommended as a safer course, by the same authority, to transfer the bill and protest by formal assignation.^(a) 383. What is the effect of alterations in bills ? (1) Alteration of a bill in a material part, after being issued, and without the consent of parties, renders it null, both at common law and under the Stamp Acts.^ (2) Alteration, even in a material part, before issuing, and with consent of the parties, does not vitiate the bill as a docu- ment of debt, but deprives it of the privilege of summary dili- gence.* (3) Immaterial alterations to correct evident mistakes will not affect the validity of the bill. '(5) (4) Where a bill has been issued in such a state as to admit of its being altered to a larger sum without giving the document a suspicious appearance, the acceptor and indorsers will be liable to a bona fide onerous holder for the increased sum on the obliga- 1 Scott, 11th June 1816 ; Hume, * BeU's Com., i, 319, Thomson, 75. 179 (110); M'Kostie, 18th Nov. 2 Menzies Lect., 366 (379). 1849, 12 D., 124 ; Dickson Evid., 1, ' Bell's Com., i, 317 (i, 391) ; 459 (?§ 889, 895, 897). Thomson, 179 (110). ' Bell's Com., i, 318 (i, 392). (z) By 12 Geo. Ill, c. 72, § 43, " summary execution by horning or other diligence shall be competent to the indorsee of a bill although the protest is not in the name of the indorsee craving the diligence, and although the bill is not reconveyed to him by indorsation, if he produces a receipt for the value by act of honour, or a missive-letter from the protesting indorsee men- tioning the dishonour." This, however, probably refers to unrecorded pro- tests, as to -which the same course had been sanctioned ; Harries, M., 1509. (a) It was held competent to raise summary diligence on a second pro- test, although a prior protest at the instance of a subsequent indorsee had been recorded; Freer, M., "Bill of Ex.," App., 19. (4) See Henderson, M., 17059, where the term of payment of a bill (dated 7th Oct. 1799) having been changed from Martinmas 1780 to Mar- tinmas 1800, the bill was sustained. Digitized by Microsoft® BILLS AND NOTES. 187 tion to indemnify for negligence ; but it will be otherwise if the alteration is capable of detection by ordinary vigilance.^ (5) Alteration to a smaller sum is not a ground of challenge to one profiting by the change. ^(o) 384. What is the effect, after the bill is issued, of (1) adding a second acceptor ; (2) deleting the name of an in- dorser ; (3) adding the words " conjunctly and seve- rally;" (4) erasing the word "cautioner'' from the name of one of the acceptors ; (5) of an alteration in the date ; the alterations being made without the consent of the parties ? (1) The addition of a second acceptor annuls the bill under the Stamp Acts, as it is an alteration of the obligation.' (2) The deletion of the name of an indorser (d) frees subse- quent indorsers, because it destroys their recourse.* (3) The addition of the words "conjunctly and severally" wiU not affect the bill ; because without these words the accept- ors are bound in solidum.^ (4) The erasure of the word "cautioner," it has been held, frees the party who subscribed as cautioner ; because although the drawer would not have been benefited by the alteration, it affects the cautioner's claim of relief against the other acceptors.^ (5) Alteration in the date is fatal ; because it changes the dates of payment and prescription, and in effect creates a new instrument, for which a new stamp is required. '(e) ' Menzies Lect., 350 (362) ; Dick- = Homes, 7tli June 1836, 14 S., son Evid., i, 460 (§ 893) ; Pagan, 898. M., 1660 ; Watsons, 27th June 1798, * Dickson Evid., 1, 460 (§ 890). Hume, 42 ; M'Lean, 20th May 1834, ^ Gordon, M., 14677. 12 S., 613. « Kobertson, 27th May 1825, 4 S., ^'Laidlaw, M., 16941. 40. ' Bell's Com., i, 317 (1, 391). (c) The fact here stated is incidentally mentioned in the judgment, but the true ground seems to have been that the alteration was admitted to have been made by the acceptor himself. The question arose in an ordinary action, not under summary diligence. (d) " Altering the name of one indorsee " is Mr Dickson's statement, but the doctrine in the answer is correct. (e) In Mitchell, 9th July 1819, Hume, 78, the alteration of the date from 22d, which was Sunday, to 23d, was held to nullify the bill, even as a ground of debt against the acceptor. Digitized by Microsoft® 188 BILLS AND NOTES, 385. What are the leading enactments of the statute 12 Geo. Ill, c. 72, regarding the prescription of bills? (1) That no bill or note shall be effectual to produce any dili- gence or action, unless such diligence shall be raised and executed, or action commenced, within six years from the time at which the sum in the bill becomes exigible. (2) That the Act shall not apply to bank notes. (3) That it shall be competent at any time after the expira- tion of the six years, to prove the debt contained^in the bill, and that the same is resting owing, by the oath or writ of the debtor. (4) That the years of minority of the creditor shall not be computed in the six years.(/) 386. How may a bill be preserved from prescription ? (1) By an action commenced specially (gr) on the bill within six years from the date of payment ; i.e., citation on, or at least call- ing of the summons, and the action must be proceeded with with- out delay.' (2) By diligence raised and executed on the bill, as by a charge on a registered protest.^ (3) By production of the bill, in a sequestration of the debt- or's estate.' (4) By production of the bill as a ground of claim in a judi- cial competition, as a ranking and sale, or a multiplepoiading.* ' Bell's Prin., 598. * Douglas, Heron, & Co., M., 2 BeU's Prin., ib. 11127 ; National Bank, 5th Dec. ' 19 and 20 Vict., c. 79, t 109. 1837, 16 S., 177. (/) But it should seem that minority will not interrupt prescription if the party has only the beneficial interest and is not the nominal creditor in the bill, because there is no proper non valentia; M'Neil, &c. (Hannay's Trs.), 31st Jan. 1823, 2 S., 174. (g) In Gordon, M., 7532, it was held by the Lord Ordinary that citation within the six years was sufficient tljpugh they had expired before the case was called ; and though the rest of the interlocutor was altered, no observa- tion seems to have been made on that part of it ; and it has been repeatedly found that citation within the forty years, though the day of compearance was beyond them, interrupted the long prescription. See Gilmour, M., 11133 ; Ainsley, M., 11232; M'Intosh, M., 11239. Digitized by Microsoft® BILLS AND NOTES. 189 (5) By pleading compensation judicially on the bill.' (6) By entering into a special submission with the debtor for deciding a claim on the bill.^ 387. "What is the creditor's remedy under the statute after the six years have run ? Ordinary action at his instance against the debtor, founded not on the bill but on the debt, in which he must prove by the debtor's writ or oath, (1) the constitution of the debt, and (2) that it is resting owing. 388. Is the prescription applicable to a claim by the accept- or against the drawer, for whose behoof the former had accepted and paid the bill ? No ; because such a claim is a separate debt arising from an advance of money by which the bill was extinguished.^ 389. Is the production of a bill, in an action at the instance of the debtor's tutors, for obtaining authority to sell his estate to pay off debt, sufficient to save the bill from prescription ? State the reason. No ; ^because the object of such a process is not to pay the debtor's obligations, but to satisfy the Court as to the necessity of a sale.*(Ji) 390. What is the effect as to prescription of markings on the bill of the payment of interest before or after the ex- piry of the six years ? (1) Markings of the payment of interest, whether by the debtor or creditor, before the expiry of the six years, have no effect in interrupting the prescription. ' Eoss, 20th July 1855, 17 D., ' Ralston, M., 1533. 1144. * Ferrier, 9th July 1811, F.O. " Vans, 14th June 1816, F.O. (h) The case of Ferrier, cited, referred to the triennial prescription, but the principle is equally applicable to the sexennial, the ground being, that to elide prescription the claim must be made in an action in which decree can be got for, or effect given to, the debt. Digitized by Microsoft® 190 BILLS AND NOTES. (2) Such markings, if made by the debtor after the six years, are suificient.(i) (3) But if in the handwriting of the creditor, they are of no avail. ^ 391. Is the prescription elided by pleading compensation on a bill in defence against another debt ; or by produc- ing a bill in a suspension of a threatened charge on it ? State the reasons. (1) Pleading compensation on a bill in defence against an- other debt elides the prescription, as that is equivalent to raising an action on it.^Qc) But the mere concourse of debit and credit is not enough ; compensation must be pleaded judicially.* (2) The production of the bill in a suspension of a threatened charge does not bar the prescription ; because to produce that effect the action or diligence must be at the instance of the hold- er of the bill.*(0 1 Dickson Evid., i, 259 (? 450). = Galloway, M., 11122. 2Kos3, 20tli July 1855, 17 D., * Dickson Evid., i^ 253 (H37). 1144. (i) So are writings ty persons authorised by the debtor, as -entries of payment of interest in his books by his clerk ; Black, 16th Jan. 1823, 2 S., 118. Such markings preserve the bill only for six years after their date ; Horsburgh, 13th Feb. 1811, F.C. ; Ferguson, Vth March 1811, F.C. (k) So held, Sloan, Isl June 1827, 5 S., 742. See Eddie, 5th July 1855, 17 D., 1041, for circumstances in which the triennial prescription was held not to have been elided by judicial proceedings. (Z) It is hardly accurate to say that " the action or diligence must be at the instance of the holder of the bill ;" because in pleading compensation, which, as above stated, is effectual, this is not the case. What is essential is that the claim be made judicially, either directly or in defence to another claim. Professor Bell (Com., i, 393) takes the same view as is stated in the answer as to the inefScacy of producing a bill in a suspension of a threat- ened charge, basing his opinion on the analogous case of a holograph bond where prescription was held not to have been so interrupted ; "Wright, M., 11268 ; but there seems to be ground for doubting the principle of that de- cision, because it might lead to this anomalous result, that in a suspension raised for the very pilrpose of preventing a charge being given, the letters might be found orderly proceeded, and yet the creditor's claim be thereafter defeated by a plea of prescription. There seems no real distinction between producing the bill in such a suspension and producing it in defence in an ordinary action. The observations of the Lord President (M'Neill) in Ross, Digitized by Microsoft® BILLS AND NOTES. 191 392. Where an acceptor, on a reference to oath by ,tiie draw- er or an onerous indorsee, depones that he signed the hill, but got no value ; Is that sufficient to prove the constitution ? In a reference by the drawer, such an admission is not suffi- cient, because the oath disproves the alleged debt ;' but in a re- ference by an onerous indorsee, who had acquired right to the bill during its currency, the qualification of the acceptor's admission that he got no value will not avail him ; because the money was advanced on the faith of the acceptance, and it was therefore as much the acceptor's debt as if he had at first received the amount and then handed it to his friend the drawer.^ But it is doubtful whether this rule would now hold where the indorsee acquired right to the bill after the term of payment, as such indorsees are deemed to have taken the bill subject to all objections or excep- tions to which it was exposed in the hands of the indorser.^ 393. The years of prescription expired on 15th May, but the acceptor gave the holder of the bill, on 13th May, a holograph letter acknowledging the subsistence of the debt ; Was the bill saved from prescription ? No ; because the debt may have been discharged, and the statute presumes that it was discharged, before the full period of prescription had elapsed.* 394. When the acceptor himself, or his heir upon a reference, ' Agnew, M., 13219; Drummond, " 19 and 20 Vict., c. 60, § 16. 12th Jan. 1848, 10 D., 340. * Buchanan, M., 11128; Eussell, 2 Dickson Evid., i, 256 (§444) ; M., 11130; Ferguson, 7th March Philip, M., App. " Bills," 9 ; Laid- 1811, F.C. law, 31st May 1826. 4 S., 636. supra, note 2, appear to he as applicable to this point as to the one there raised. He said — " "We are still in the process in which the bill was pro- duced before prescription had run, and in that view of the matter parties having joined issue on the question whether the debt was compensated or not, and the bill being produced, perhaps only a few days old at the time it was produced, it would be a strange result if, the case going on, and not coming to a conclusion till after the lapse of the years of prescription, the parties should be met with the plea of prescription in the very investigation in which the bill was produced." Digitized by Microsoft® 192 BILLS AND NOTES. admits the constitution of the debt, "Will it be sufficient to negative the resting owing for the acceptor to de- pone generally that the debt has been paid, or for the heir to depone that he could not state whether it had been paid or not ? (1) Where the acceptor admits the constitution, it is not suf&- cient, in order to negative the resting owing, that he depone generally that the debt has been paid ; he must depone specially as to the circumstances of payment, or at least state relevant grounds for his averment.^ (2) But where the heir of the accept- or is sued, and, while admitting the acceptance, depones that he could not state whether the debt had been paid or not, prescrip- tion will operate ; because the oath affords no proof of the resting owing, in terms of the statute.^ 395. What is the effect of diligence against one of the ac- ce^jtors within the six years, and proof by writ or oath of one of them after the six years ? (1) Action or diligence against one of the acceptors within the six years perpetuates the debt against all the acceptors for forty years ; because the prescription is thereby interrupted, and the document protected against the limitation. ^(m) (2) But proof by writ or oath of one of them establishes the debt only against himself, and not against the co-obligants ; because after the six years the document is gone, and it is the deht that must be proved, which can only be done by the writ or oath of each as against himself.* ' Christio, 19tli June 1833, 11 S., » Gordon, M , 7582. 744. 'M'Neil, 81st Jan. 1823, 2 S., i! Stirling, 11th March 1817, F.C. 174; M'Indoe, 18th Nov. 1824, 8 S., 295. (m) So, where an annualrent was secured on two separate tenements, diligence against the one interrupts prescription as to the other ; Balmerino, M., 11254 ; and where a right is held pro indiviso by several creditors, in- terruption by one benefits all ; Napier, 697 ; but where a debt has been divided by assignation, interruption as to one part does not apply to the rest ; Erak., 3, 7, 47 ; and so as to apprising conveyed to different parties ; Clerk. M., 11275. Digitized by Microsoft® EXECUTION AGAINST THE PERSON. 193 VIII. PERSONAL DILIGENCE. (1.) Execution against the Person. 396. "What were the legal fictions resorted to for obtaining execution against the person for civil debt in Scotland and England respectively ? The ancient common law of both countries, upon feudal principles, denied personal execution at the instance of one subject against another for a debt merely civil ; the imprisonment of a debtor having been regarded as unjust to his superior, who had a higher interest than creditors in the person of the vassal. But, on the other hand, the superior's claim yielded to the com- mands of the sovereign, the paramount feudal superior of the whole country. Accordingly, in Scotland, when the debtor had been ordained, at the suit of the creditor, by the king's judges, and charged in the sovereign's name to pay the debt, his dis- obedience was held to be an act of rebellion ; and that is the fiction upon which imprisonment for debt in Scotland is founded. In England, the creditor commenced the process of attachment against his debtor by making a fictitious complaint against him of forcible trespass ; and this being an offence punishable by im- prisonment, the creditor obtained a writ against the debtor called capias ad respondendum, which forced him to appear and find bail ; and, after the action had been commenced on this fiction, the creditor proceeded, in the same suit, to prosecute for the debt for which, if he was ultimately successful, he obtained against the debtor a writ of execution called capias ad satisfaciendum.^ 397. What was the earliest kind of diligence against the person in Scotland ? With the exception of the caption issued by ecclesiastics against persons excommunicated,^ the earliest execution for pay- ment of debt in Scotland is the Act of Warding by the magis- trates of royal burghs, introduced by Eobert I, for the encourage- ment of merchants. It is a direct warrant for the imprisonment ' Ross Lect., i, 245, et seq.; Men- - See Ans. 201. zies Lect.. 276 (284). N Digitized by Microsoft® 194 EXECUTION AGAINST THE PERSON. of a debtor on failure to pay the debt after a charge upon the magistrates prsGept.i Beyond the burgh the earliest writ of per- sonal execution, with the exception previously adverted to, was Letters of Four Forms, issued originally upon obligations ad facta prcestanda, and afterwards on liquid debts. The writ proceeded in the sovereign's name, and contained a warrant for giving the debtor four successive charges, the injunction of the last being " to perform his obligation, or to surrender his person to ward, under the penalty that otherwise he should be denounced rebel." ^ 398. What are letters of horning? " Letters of horning mean a letter from the king ordering or commanding the debtor to make payment under the pain of being proclaimed a rebel. The service of this letter upon the debtor is a charge of horning. If the debtor disobey the charge he is de- nounced or proclaimed a rebel ; and, because of old a horn served the same purpose in proclamations that trumpets do at present, therefore the said letter has by custom, though improperly, ob- tained the name of letters of horning, and the service of the letter has obtained the name of a charge of horning." — Lord Karnes.^ 399. Explain the passage in signet letters, " delivering them by you, duly executed and indorsed, again to the bearer. " The letters are addressed to messengers-at-arms, conjunctly and severally, who are enjoined, after executing them, to deliver them back duly indorsed, i.e., having the execution written on the back, to the bearer, i.e., the creditor-raiser of the letters.* 400. In what cases do hornings conclude with the words, " Per decretum dominorum concilii," and with the words "Ex deliheratione dominorum concilii?" Ex- plain the reason. Homings on decrees of the Court of Session, at the pursuer's instance, pass de piano, without a bill ;(«.) and, therefore, the letters ' Karnes' Law Tracts, 357. ° Kames' Law Tracts, 362. " Kames' Law Tracts, 358 ; Men- ' Eoss Lect., i, 297. zies' Lect., 291 (300). (n) Where a warrant to charge as furth of Scotland is required, a. bill is Digitized by Microsoft® EXECUTION AGAINST THE PERSON. 19ij conclude with the words "Per decretum dominoram concilii." But homings at the instance of an assignee, or upon decrees of inferior judges, and other hornings which pass upon a bill, bear " Ex deliberatione dominorum concilii," alluding to the considera- tion which the Court is supposed to take of the bill when pre- sented before granting the desire of it by the fiat ut petitar. ^ 401. What was the method formerly in use for procuring personal execution upon decrees of inferior courts ? Personal execution, being an extraordinary remedy, required the special interposition of sovereign authority, which was obtained by an order directed to the keeper of the King's Signet, issuing from His Majesty's Supreme Courts. Bat as Inferior Judges could not give warrant for letters passing the signet, it was neces- sary to exhibit the decrees of such judges judicially before the Court of Session, and obtain a decree-conform, which, being a de- cree of a sovereign court, was a proper foundation for letters of horning. The necessity for a decree-conform was obviated in the case of decrees of magistrates within burgh, by the Act 1593, c. 184 ; and the provisions of that statute were subsequently ex- tended to the decrees of other inferior judicatories.^ 402. What steps were necessary to obtain personal execution upon a decree of the Court of Session before the Per- sonal Diligence Act ? (1) Letters of horning were expede on the decree at the cre- ditor's instance. (2) The debtor was charged on the horning to pay the debt within the days of charge, usually fifteen, under the pain of re- bellion and being put to the horn. (3) Within a year and a day of the date of the charge, the debtor was denounced rebel, and put to the horn at the market- cross of the head burgh of the shire of his residence. (4) The horning and execution were registered within fifteen days in the Eegister of Homings. ' Roas Lect., i, 298. ' Kames' Law Tracts, 368, et seq. in all cases necessary, and also where tliere is a mandatory whose name does not appear in the decree, and generally where the horning proceeds on more than one writ. n2 Digitized by Microsoft® 196 EXECUTION AGAINST THE PERSON. (5) The registered horning and executions were produced in the Bill Chamber, with a hill for letters of caption, which was passed " because the Lords have seen the registered horning." (6) The fiat on the bill was the authority for expeding letters of caption, which, when signeted, was the warrant of imprisonment of the debtor.' 403. What is now the procedure for obtaining a warrant for the imprisonment of the debtor on a Court of Session decree ? (1) The debtor is charged to pay the debt, the decree contain- ing a warrant for that purpose. (2) "Within a year and day after the charge has expired, the extract and execution of charge are presented to the keeper of the General Eegister of Hornings, who records the execution, and writes a certificate of registration upon the extract, and also upon the execution, if it be written upon paper apart. (3) A minute for warrant of imprisonment is then indorsed on the extract, and signed by a Writer to the Signet. (4) The extract, with the execution and certificate of registra- tion, and indorsed minute, are presented in the Bill Chamber, and the clerk writes on the extract, and subscribes this deliverance " Fiat ut petitur," which is the warrant of imprisonment.^ 404. What were the effects of denunciation before the Act abolishing heritable jurisdictions ? (1) The denounced debtor's moveable estate fell to the Crown, as single escheat, but under burden of payment of the debt con- tained in the creditor's diligence. (2) The liferent escheat was incurred, being a forfeiture to the superior of the rents and produce of the debtor's heritable estate, if he remained unrelaxed from the horn for a year and day. (3) The debt and interest for which the debtor was charged were accumulated so as to bear interest. (o) ^ Ross Lect., i, 301, et seq. ' 1 and 2 Vict, c. Hi, J§ 1, 5, 6. (o) In order to produce this effect, denunciation required to be made, not at Edinburgh, as the commune forum, which for other purposes was sufficient, but at the market-cross of the head burgh of the jurisdiction within which Digitized by Microsoft® EXECUTION AGAINST THE PERSON. 197 (4) The denounced debtor became subject to imprisonment.' 405. What is the statutory effect of a registered charge on an extract-decree, and of the incarceration of the debtor? (1) The registration in the Eegister of Homings of a charge on an extract-decree has the same effect as if the debtor had been denounced rebel in virtue of letters of horning ; and the letters, with the execution of charge and denunciation, had been recorded according to the forms formerly in use, and the debt and interest are thereby accumulated into a capital sum, on which interest will thereafter become due.^ (2) The incarceration of the debtor under diligence has the effect of rendering the debtor notour bankrupt under the Act 1696, c. 5.3 406. Where a creditor, instead of proceeding against his debtor by charging him on the extract-decree, and following out the other procedure introduced by the Personal Diligence Act, adopts the former method of letters of horning ; Is the expense of the diligence exigible from the debtor ? No part of the expenses of the diligence is recoverable from the debtor, except the expenses of the extract, unless it be shown that it is incompetent to proceed in the way provided by the Per- sonal Diligence Act.* 407. What are the different modes of executing a charge against an individual debtor of full age ? (1) By delivering a copy of the charge to the debtor personally apprehended. (2) By leaving the copy charge for the debtor within his dwelling-house, with his servant, to be given to him, if the mes- senger could not find him personally. 1 Ersk., 2, 5, 58, et seq. » 1696, c. 5 ; Ersk., 4, 1, 41. ^ 1 and 2 Vict., c. 114, §5; * 1 and 2 Vict., o. 114, § 8. the debtor resided ; 1592, c. 128 ; 1597, c. 268 ; 1621, u. 20 ; Cochrane, Kames' Rem. Dec, ii, p. 70. The recording of the execution has now the same effect, 1 and 2 Vict., c. 114, J 5. Digitized by Microsoft® 198 EXECUTION AGAINST THE PEKSON. (3) By affixing and leaving copy for the debtor, upon the most patent gate or door of his dwelling-house, after six audible knocks by the messenger upon the gate or door, if he could neither get access to the house, nor find the debtor personally.^ (4) By delivering the copy at the office of the keeper of the Eecord of Ediotal Citations, if the debtor is furth of Scotland. ^ 408. What are the induciw of a charge upon, (1) a registered bond ; (2) a registered protest ; (3) a decree of the Court of Session ; (4) a decree of the Teind Court ; (5) Exchequer-warrants in favour of the Crown ; (6) a horning against superiors ; the person charged being resident in Scotland ? (1) On a registered bond, six days, if containing a consent to that effect ;(^) without a consent, fifteen days ; on a bond and dis- position in security, six days, although not containing a consent. (2) On a registered protest, six days. (3) On a decree of the Court of Session, fifteen days. (4) On a decree of the Teind Court, ten days. (6) On Exchequer-warrants in favour of the Crown, six days. (6) On a horning against a superior nominatim, fourteen days ; against superiors generally, twenty-one days. 409. Is a charge valid at the instance of a foreigner without a mandatory ? Such a charge is valid ; it being sufficient to sist a mandatory, if it be suspended.^ But it may be essential to conjoin a manda- tory with a foreign creditor in the warrant where the diligence » Koss Lect., i, 303. ' Eoss, 8th March 1849, 11 D., ' 13 and 14 Vict., ^. 36, § 22. 984. (p) A formal consent is not now necessary. See note («), p. 94. By 19 and 20 Vict., c. 56, § 38, it is declared that " all bonds or obligations granted, or that may he granted, to Her Majesty, albeit not containing any clause of registration, shall be capable of registration in the Books of Council and Session, or other judges' books competent, and to have a decree interponed thereto, and to be extracted, with a view to execution in the like manner as if a formal clause of registration had been contained therein ; and all dili- gence and execution shall be competent thereon in the like manner and to all effects as upon any bond containing such formal clause of registration." Digitized by Microsoft® EXECUTION AGAINST THE PERSON. 199 proceeds on a bill ; because that is of the nature of a petition to the Court. ^ 410. What is the effect of a charge at the instance of a com- pany, where none of the partners are named in the warrant ? (1) Where the company has a proper company firm the charge is valid. ^ (2) Where the company has a descriptive firm the charge is null.3 (3) Unless it be a corporation, in which case the charge is valid.* 411. What is the effect of a charge at the instance of the whole partners, without naming the firm, on a war- rant in favour of a company, and the partners nomi- natim? The charge is invalid ; as it is an unauthorised deviation from the warrant.^ 412. May a partner be validly charged on diligence against the company in which he is not named ? Yes ; it being the duty of the messenger to discover who are the partners of the company.^ 413. Was a debtor, imprisoned on letters of caption, formerly entitled to liberation with the creditor's consent ? State the reason. The creditor's consent was not sufficient to liberate an impri- soned debtor, because he was incarcerated on the caption, not as a debtor, but as a rebel ; and, accordingly, it was necessary for him, in order to his liberation, to obtain letters of relaxation. But by modem practice the debtor is entitled to his freedom on payment 1 Cook, 26th Nov. 1850, 13 D., •* Bell's Prin., 2169. 169, p. Lord Wood. ^ Craig, 23d Nov. 1841, 4 D., 54. 2 Forsyth, 18th Nov. 1834, 13 S., " Knox, 12th Nov. 1847, 10 D., 42. 50. ' Forsyth, ib. Digitized by Microsoft® 200 EXECUTION AGAINST THE PEBSON. of the debt, or u^on consigning the amount in the hands of a magistrate.'(r) 414. "What circumstances bring into effect the Act of Grace ; and what is its eifect ? When a prisoner for a civil debt or cause is unable to maintain himself, he is entitled, under the Act of Grace, to apply to the magistrates for an order upon the creditor to give him aliment, and if the latter refuse or delay for the space of ten days after in- timation of the application to provide aliment, the debtor is en- titled to liberation ; ^ after which he cannot be again apprehended on the same warrant, unless there be a change of circumstances,^ or unless the debtor has been liberated through error imputable to himself.'' 415. "What is the object of the bond of presentation ; and what is the nature of its obligatory clauses ? The object of the bond of presentation is to allow a debtor who has been apprehended at the suit of a creditor time for mak- ing an arrangement, instead of going directly to prison. It is granted by a friend of the debtor, and he binds himself that the debtor shall, at a specified time and place, appear in the same condition, without any suspension, sist, or protection(s) which might prevent the execution of the creditor's diligence ; and, in case of failure, the obligant binds himself to pay the debt, with interest and expenses.' 416. What circumstances will excuse an obligant in a bond of presentation from presenting the debtor ? (1) The bond is satisfied and the cautioner freed by the debtor's death. (2) Serious illness is a sufiicient excuse, provided the debtor is presented when he has recovered. (3) It has been 1 Kames' Law Tracts, 373 ; Men- * Pender, 28th Jan. 1846, 8 D., zies Lect., 291 (300). (?) 408 ; White, 24th Nov. 1858, 21 D., 2 1696, c. 32. 28. ' Mackenzie, 14th Jan. 1880, 8 S., = Boss Lect., i, 358 ; Menzies Lect., 306. 292 (301) ; Jur., St., ii, 109. (g) Forbes, 31st Jan. 1823, 2 S., 169. {r) Or by consent of the incarcerating creditor or creditors. (s) See, as to this, Cheyne, 20th June 1863, 1 M'P., 960. Digitized by Microsoft® EXECUTION AGAINST THE PERSON. 201 held that imprisonment on another caption will not excuse the obligant, because the impediment to presentation is imputable to the debtor himself/ but this is doubted by Professor G. J. Bell, on the ground, that " the creditor has all the benefit that he could have had by himself imprisoning the debtor, there being no pre- ference by priority of personal execution;"^ and he holds that the obligant will be released if he give notice of the place of con- finement.' (4) The obligant will not be released by the debtor's enlistment,* nor by his betaking himself to the sanctuary.^ (2) Poinding. 417. "What are the warrants of poinding ? (1) Letters of horning and poinding ; (2) extract decrees, re- gistered bonds, or registered protests ; (3) Sheriffs' precepts ; (4) Exchequer-warrants.* 418. Where a year has elapsed from the date of the charge, is it necessary to give a new charge in order to obtain a warrant for the imprisonment of the debtor or to poind his effects ? (1) The execution of charge, in order to obtain a warrant of imprisonment, must be registered within a year and day after the charge has expired, and therefore a new charge is necessary if re- gistration has not been made within the year ; '' (2) but poinding may proceed even at a distance of years after the charge.^ 419. Before the Personal Diligence Act, when access was not obtained for the purpose of poinding, what was necessary to be done ? When access to the goods was not obtained, the messenger re- turned an execution to that effect, and upon the production of the diligence and execution in the Bill Chamber, warrant was obtained for letters of open doors, which passed the Signet, of new charg- J Polstead, M., 1807. " Ersk., 3, 6, 20 ; Bell's Prin., 2 Bell's Com., i, 297 (i, 386). 2286. " Bell's Prin., 277. ' 1 and 2 Vict., c. 114, § 5. * Henderson, M., 1809. « Kerr, SOth May 1837, 15 S., <• Douglas, 17tli Dec. 1842, 5 D., 1041. Digitized by Microsoft® 202 POINDING. ing messengers to poind, and, if needful, to make shut and lock- fast places open and patent.' 420. What subjects cannot be poinded ? (1) Ships, it is said, cannot be poinded ;(i) but this is doubted by Professor G. J. Bell ; ''■ (2) effects in the Palace of Holyrood House ; ^ (3) wheat merely brairded, and clover grass ; * (4) plough goods — ^being horses, oxen, implements of husbandry, and other goods pertaining to the plough — are not poindable during the season of labour, if the debtor has other effects ; ^ (w) (5) goods of which the debtor is only joint proprietor ; ^ (6) goods in which he has only a qualified or temporary interest ; ' (7) debts ; * (8) it is a matter of doubt whether bills and bank-notes are poind- able f(v) under the Court of Exchequer Act it is lawful to poind for Crown debts every description of the debtor's moveable effects, including bank-notes, bills, implements of husbandry, &c.'° 421. Can a sale be stopped by an arrestment used in the hands of the owner of the poinded effects, by the cre- ditors of the poinding creditor, after warrant of sale is obtained? State the reason. No ; because the proceeds being consigned with the clerk of court, the claims of the arresting creditors would be in no degree affected.^' ' Menzies Leot., 296 (305). ° Fleming, 2d Dec. 1828, 7 S., 92. "^ Bell's Com., i, 612 (ii, 62). ' Scott, 13th May 1837, 15 S., 916. » Earl of Strathmore, 18th Feb. ' Bell's Prin., 2288. 1823, 2 S., 223, rev. 22d Feb. 1826, » BeU's Prin., ib. 2 W. and S., 1. '" 19 and 20 Vict., c. 56, I 32. * Elder, 5th July 1833, 11 S., 902. " Anstruther, 22d Feb. 1851, 13 ' 1503, c. 98 ; Ersk., 3, 6, 22. D., 778. {t) The usual mode of attaching ships is by arrestment and process of sale. («) The Act prohibits the poinding of those goods " quhair ony uther gudes or landes are to be apprised or poynded." See Wemyss, M., 10520. [v) This question was raised in Hamilton, 12th June 1741, Br. Sup., 5, 708 ; and in Alexander, 14th Feb. 1826, 4 S., 439, the report of which case bears — " Although the question of the competency of poinding bank-notes was fully argued by the parties, yet their Lordships did not deliver any opinion on that point, nor did they intend to decide it." Digitized by Microsoft® POINDING. 203 422. What is the procedure, in executing poindings ? (1) The messenger goes along with two valuators to the debt- or's dwelling-house, he cries three oyesses, reads the warrant, makes a schedule of the goods poinded, and of the value as fixed by the valuators on oath, and administered by him, offers three times the goods back to the debtor at the appraised value, and, on the debtor's refusal, adjudges, decerns, and declares the poind- ing to be completed, and the goods to belong to the creditor ; the goods being left in the hands of the debtor, with a signed note of the value. (2) The messenger, within eight days, reports the poinding to the Sheriff, who then grants warrant for a sale, be- twixt eight and twenty days after publication of the notice of sale, six days' notice of the sale being given to the debtor, or other possessor. The goods cannot be sold for less than the appraised value, at which they are delivered to the creditor, if the appraised value be not offered at the sale. The sale, or delivery, is reported to the Sheriff within eight days ; and if a sale has taken place, the roup roll, and accounts of the proceeds, must at same time be lodged. The Sheriff then orders the proceeds to be consigned with the clerk, and the amount paid to the creditor to the extent of his debt, interest, and expenses.^ 423. If the debtor were to allege that the goods are not his property ; or a third party appeared and claimed the goods ; or a third party, in circumstances indicating collusion, produced a written conveyance to them in . his favour; Ought the messenger, in any of these cases, to stop the poinding ? (1) Where the debtor alleges that the goods are not his pro- perty, that will not stop the poinding. (2) Where the goods are claimed by a third party, the mes- senger may take his oath, and interrogate him in order to discover to whom the property belongs ; and if it shall appear that the claim is collusive, he may proceed with the poinding. (3) Where a third party produces a written conveyance, and suppoi-ts it with his oath, although there are indications of collu- ' Ersk., 3, 6, 24; Menzies Leot., 298 (307) ; 1 and 2 Vict., c. 114. Digitized by Microsoft® 204 POINDING. sion, the messenger must stop the poinding ; because lie cannot judge of the effect of the deed.' (a;) 424. Must the poinded effects, in all cases, be left where poinded ? State the reason. The Personal Diligence Act provides that the poinded effects are to be left with the person in whose possession they were when poinded ; ^ but in poindings of Crown debtor's effects, it is by the Court of Exchequer Act declared to be lawful for the officer, where it is deemed expedient, to take possession of the poinded effects, and to put them in a place of security, instead of leaving them with the person in whose possession they were poinded.^ 425. Does the appraisement require to be stamped ? _ Not unless licensed appraisers are employed, which is not ne- cessary. ''(y) 426. The sale was advertised on the 10th, and appointed for the 18th of November ; Is that a sufficient compliance with the requirements of the Act ? 1 Erst., 3, 6, 26; Breadaltane, M., ' 19 and 20 Vict., t. 56, § 36. 10522. * Drummond, 25th Nov. 1824, ^i 1 and 2 Viot., c. 114, § 24. S., 311. (x) The case of Breadalbane, cited, was an action of spuilzie, on the al- legation that the messenger had refused to accept the party's oath, having required him also to depone whether the disposition " was for onerous causes or simulate," which the party refused to do, and which the Lords found to be a spuilzie. The reporter adds — " But it were fit that the Lords, for clearing the lieges, would determine the point how far a messenger's power may reach in trying the simulation of all such dispositions produced before them, else all poindings on the production thereof may be stopped." (y) This point was not decided in the case cited (Drummond) . There was no separate appraisement, but there were two executions, the first of which was objected to as not being signed by the appraisers, and the second as being unstamped. It was held that the execution did not require a stamp. In the course of the process the opinion of the Solicitor of Stamps was taken, and he stated " that he did not consider that the instrument of execution of poinding itself required a stamp, but that appraisements incidental to or oc- curring in the legal diligence of poinding did so." The question would probably turn on there being a separate appraisement rather than on the persons employed to make it. Digitized by Microsoft® POINDING. 205 Y-es ; the Act does not require eight free days to intervene, as was the case under the old practice.^ 427. When a creditor, after taking steps to recover his claim hy poinding, finds that another creditor will be ahle to complete his diligence before him, What steps ought he to take in order to obtain a share of the effects ? (1) If he is in possession of a warrant of poinding, he may be conjoined in the poinding at the instance of the other creditor be- fore it is completed, on exhibiting and delivering the warrant to the officer f or (2) he may use such personal diligence against the debtor as will render him notour bankrupt under the Act 1696, o. 5, or the Act 54 Geo. Ill, c. 137 ; by the latter of which (§ 5)(2) it is enacted, that no poinding within sixty days before, or four months after the bankniptcy, shall give a preference, but every creditor of the bankrupt having liquid grounds of debt, and sum- moning the poinder, or claiming in a judicial process or competi- tion before the four months have elapsed, shall be entitled to a proportional share corresponding to his debt ; or (3) he may obtain a sequestration of the debtor's estates under the Bankrupt Act, which renders ineffectual any poinding executed on or after the sixtieth day before the sequestration. 428. In a competition betwixt the Crown on a writ of extent and a poinding creditor, What is the rule of pre- ference ? The Crown writ of extent is preferable to the diligence of the subject, unless the latter be completed before issuing the ex- tent.^(a) » M'Neill, ISth Feb. 1841, 3D., U and 2 Vict., u. 114, § 23. 554. = Menzies Lect., 302 (311). (z) This Act repealed by 19 and 20 Vict., c. 79, and the provision re- enacted by 19 and 20 Vict., c. 79, ? 12. [a) See Borthwick, 5th Deo. 1862, 1 D., 94. Here a bankrupt was sequestrated, the first deliverance on the petition being dated 12th May. On 15th May a charge was given against the bankrupt at the instance of the Crown (which, under 19 and 20 Vict., c. 56, § 42, is equivalent to the teste of a writ of extent). Held that the diligence was effectual against the trustee, the provisions of the Bankrupt Statute having no application against the Crown. Digitized by Microsoft® 206 POINDING. 429. Where goods have been sold but not delivered, Can the seller retain or attach the goods for the price, or for a separate debt due to him by the purchaser, as against a party who has purchased the goods from the latter ? The seller is entitled to retain the goods for the original price, but not for a separate debt due to him by the first purchaser.'(6) But the original seller may attach the goods while in his own pos- session, by arrestment or poinding, at any time prior to the date when the sale of the goods to a subsequent purchaser was inti- mated to such original seller ; and the arrestment or poinding has the same effect in a competition as an arrestment or poinding by a third party.^ 430. In a competition betwixt an arrester and a poinder. Who will be preferred ? The poinder will be preferred ; because poinding is a perfect diligence operating at once as a transference, while an arrestment merely creates a nexus on the property, leaving the right still in the debtor. But if the arrester has obtained decree of furthcom- ing before the execution of poinding, he will be preferred.^ ' 19 and 20 Vict., c. 60, § 2. ' Bell's Com., i, 635 (ii, 64 and 72). " lb., I 3. (b) It is to be observed, bowever, tbat tbe Act contains & proviso that no- thing therein " contained shall prejudice or affect the right of retention of the seller " " for performance of the obligatiportunity. (/) This point was not raised, though it was referred to in the case of Digitized by Microsoft® AEKESTMENT. 209 (2) Where a foreigner is the pursuer in an action hefore the Court of Session, the defender may raise a counter action against him without arresting ad fundandam ; the foreigner in that case being subject to tlie jurisdiction of the Court, on the principle of reconvention .' (^) (3) "Where a foreigner is possessed of heritable property in Scotland, he may be sued with reference to it without a previous arrestment ad fundandam ; on the principle that the locus rei sites is the only place where rights regarding heritage can be tried, and the proprietor is presumed to have employed some one there to look after it in his absence. ^(/i) 436. What is the effect of an arrestment in the hands of (1) a clerk for a debt due by his employer ; (2) trustees for creditors for a debt due by the truster ; and (3) a testamentary trustee and executor for a debt due by the deceased ? (1) Arrestment in the hands of a clerk is null ; because he is in law identified with his employer, and can have no claim of re- tention against him.^ » Ashton, M., 4835. ■'' Bell's Com., i, 599 (ii, 73). ^Ersk., ], 2, 18. Crookart, cited ; but it had been so held in Miller, 23d June 1838, 16 S., 1204. Appearance of a foreigner as claimant in a multiplepoinding does not create jurisdiction against him or render arrestment ad fundandam against him unnecessary ; Bell, 4th June 1852, 14 D., 837. [g) This rule is not universal. One Englishman obtained a judgment of the Court of Queen's Bench against another, who thereafter came to reside in Scotland. The plaintiff in that suit then raised an action in the Court of Session concluding for decree conform. During the dependence of this action, the defender raised an action of damages in Court of Session against the pursuer for assault and slander, pleading reconvention. Held that the Court of Session had no jurisdiction ; Thompson, 25th Jan. 1862, 24 D., 381. See also M'Ewan's Trs., 9th March 1852 (reported 17th Dec. 1852), 15 D., 265, where the plea of reconvention was not, and Baillie, 17th Dec. 1852, 15 D., 267, where it was, sustained. (A) The jurisdiction in such cases is not limited to actions with reference to the property, but extends to ordinary personal actions, and where the party is a trustee, to such actions against him qua trustee ; Ferrie and Fair- ley, 30th June 1831, 9 S., 854 ; Kirkpatrick, 23d June 1838, 16 S., 1200 ; but interest in heritable property, as a beneficiary under a trust-deed, does not found jurisdiction ; Bell, 4th June 1852, 14 D., 837. O Digitized by Microsoft® 210 ARRESTMENT. (2) An arrestment in the hands of a trustee for creditors is null; because the trustee does not represent the granter of the trust, but holds for the creditors themselves, on each of whom a vested interest in a share of the funds proportioned to his debt is conferred by the trust-deed.^ (3) An arrestment in the hand of a testamentary trustee and executor is valid ; because he holds not as a trustee for creditors, but as representing the deceased, and so all action and diligence is as competent against him as they would have been against the truster himself. ^(A) 437. What is the method of executing an arrestment in the hands of a party furth of Scotland ; and what is the effect of such an arrestment ? Arrestment in the hands of a party furth of Scotland is exe- cuted by delivery of a schedule at the Eecord Office of Citations of the Court of Session f and notice of the arrestment ought to be given to the agent of the arrestee. The arrestee is not interpelled ' Globe Ins. Co., 16tli Feb. 1849, ' Globe Ins. Co., mpra.{i) 11 D., 618, aff. 15th Aug. 1850 ; 7 » 1 and 2 Vict., c. 114, § 18. Bell's App., 296. (i) See also Swayne, 8th June 1822, 1 S., 479. (k) The statement in the second and third branches of this question and answer is inaccurate, and does not bring out the rule which is intended to be explained. The funds in the cases put are supposed to be arrested in the hands, not of the trustees, where they could not be arrested, but of third parties, debtors to those trustees as such. The question should be, " What is the effect of an arrestment used (1) against a trustee for creditors for a debt due by the truster, and (2) against a testamentary trustee and executor for a debt due by the deceased ?" and the answers should be altered in the same way. "With this explanation, the rule, as stated, is correct ; but on the last point the provisions of the Act of Sederunt, 28th Feb. 1662, to prevent the acquiring of preferences during the six months after the death of the deceased, must be kept in view. It is also to be observed that an ar- restment against an executor prior to confirmation is inept ; Henderson, 20th May 1831, 9 S., 618; and that a trust originally testamentary may cliange its character and be converted into one for creditors, by the acts of the trustees and creditors, dealing with the estate as an insolvent one, to be administered for the general behoof, and that creditors may so bar them- selves from claiming a preference, even without direct consent. See opi- nions of judges in Globe Insurance Co., supra, note 1, and Macdougall, 16th Nov. 1834, 13 S., 55. Digitized by Microsoft® ARBESTMENT. 211 from paying to the original creditor, unless it be proved that he was in the knowledge of the arrestment.^(Z) 438. May the sum (1) in an heritable bond, and (2) in a policy of life assurance, be arrested ? (1) The Bum in an heritable bond, if registered, or followed by a recorded infeftment, cannot be arrested ; because arrestment is a diligence for attaching moveables. It has been held that the sum in an heritable bond, followed by an unregistered sasine, is arrest- able.^(m) (2) The sum in a policy of assurance is arrestable during the life of the party insured, and the arrestment will be effectual if he die before another premium becomes payable.' It is doubtful whether the arrestment would subsist after the payment of another premium. 439. May a sum which is the subject of litigation be arrested in the hands of the defender, pending the suit ? State the reason. Such a sum may be arrested ; because it is not a future debt, for the decree subjecting the arrestee in payment, when it is pro- nounced, draws back to the period when the debt first became due.* 440. A creditor arrests before the death of the common debtor, and another confirms executor-creditor after his 6, 8; Wardrop, M., 1 54 Geo. Ill, c. 137, § 3.(Z) "Ersk, 3, ' Stewart, M., 705. 4860. = Strachan, 19tli June 1835, 13 S., 954. {I) See on this point Leslie, 29tli Nov. 1827, 6 S., 165. The 54 Geo. III. is repealed, and the provision referred to is now contained in 19 and 20 Vict., c. 91, i 1. (m) By the Act 1661, c. 51, it is declared that " all sums due by honds, &c., whereupon no infeftment has followed, are and shall be arrestable," as well as comprisable ; and the competition in Stewart's case, cited, note 2, was between an arrester and an adjudger, infeftment having been taken on the bond before the date of arrestment, but not recorded within sixty days, in terms of the Act 1617. Such bonds, though not followed by infeftment, are always heritable as to succession ; Menzies, 3d Dec. 1738, M., 5519, where the creditor in the bond died before the term of payment, and witb- out taking infeftment ; and Hadaway, 25th May 1830, 8 S., 800. O 2 Digitized by Microsoft® , 212 ARRESTMENT. death ; in a competition between the arrester and the executor-creditor, Who will be preferred ? State the reason. The executor-creditor will be preferred ; not because the nexus of the arrestment is dissolved by death, but because confirmation is a more complete diligence than arrestment.^ But arrestment for a Crown debt would be preferable to a subsequent confirma- tion ; because such arrestment, it is declared, " shall operate to transfer to the Crown, preferably to all other creditors of the Crown debtor, all right to and interest in the arrested fund com- petent to the Crown debtor."^ 441. What is the efi^ect of an arrestment in the hands of a tenant on the term-day ? The arrestment attaches the rent which is then due, and not the rent to become due on the following term, the term-day being the last day of the half-yearly term.^(n) 442. What is the effect of the arrestment of the sum in a personal bond due to a wife for a debt due by the husband ? (1) If the term of payment of the bond had elapsed before the marriage, the arrestment carries only the past and current inter- est ; because it is only the interest which falls under the jus mariti. (2) But if the marriage took place before the term of payment, the arrestment carries the principal sum, as well as the interest ; because in this case the bond itself is transferred to the husband by the marriage.* 443. May the sum in the bond, before the term of payment, or the interest thereof for a term not yet current, be arrested ? 1 Wilson, 26tli June 1823, 2 S., ' Wright, M., 15919. 430; Menzies Lect., 311 (321). • Ersk., 2, 2, 9 and 10; Ersk., 3, 2 19 and 20 Viot., c. 56, § 30. 6, 9. (n) The same result would follow from an arrestment at any time during the currency of the term ; Wright, M., 15919 ; Ersk., 3, 6, 9 ; Pindar, 27th May 1824, 3 S., 69.. Where the conventional term is postponed heyond the legal term of payment, the arrestment of rents is regulated by the latter ; Handyside, 15th Jan. 1813, F.C. ; Bell's Com., ii, 76. Digitized by Microsoft® AEHESTMENT. 213 (1) The sum in a bond may be arrested before the term of payment ; because it is due although not yet payable. But (2) "the interest for a term not yet current cannot be arrested ; because it is neither payable nor due, it is a future debt.^ 444. "What subjects are not arrestable ? (1) Funds heritably secured ; because arrestment is a diligence for attaching moveables only. (2) Funds specially destined to a particular purpose, including alimentary provisions, unless for alimentary debts, pensions, sa- laries of public officers, servants' wages, and wages of labourers, so far as necessary for subsistence. (3) Bills in the hands of an indorsee ; because they pass from hand to hand like bags of money. (4) Future debts ; i.e., debts not due by the arrestee till after the execution of the arrestment.^(o) 445. "Within what time does an arrestment prescribe ? Arrestments prescribe in three years from their date, and when used upon a future or contingent debt they prescribe in three years from the time when the debt becomes due, or the contin- gency is purified.^ 446. "When a creditor intending to attach funds due to his debtor, is anticipated by arrestment at the instance of another creditor ; "What is the remedy competent to the former ? (1) To execute a poinding, if it can be carried through before decree of furthcoming at the instance of the arrester ; (2) to render the principal debtor notour-bankrupt by personal diligence, which will cut down the arrestment, if within sixty days of the bankruptcy; (3) To take out a sequestration of the debtor's ' Ersk., 3, 6, 9; Menzies Leet., ^ Ersk., 3, 6, 6, et seq.; Bell's 310 (320). Prin., 2276. ^ 1 and 2 Vict., c. 114, § 22. (o) This rule, as expressed, may seem not quite consistent with Ans. 443. It may be more correctly stated—" Debts, the obligation for which has not been incurred by the arrestee at the date of the execution of arrestment." Digitized by Microsoft® 214 AREESTMENT. estates within sixty days of the arrestment, which will have the same effect. 447. What are the objects of an action of furthcoming ? (1) To ascertain the amount of the debt due by the arrestee to the arrester's debtor ; or, where goods have been arrested, to ascertain the precise extent of the subject.(j9) (2) To have the arrestee decerned to pay the fund to the ar- rester, or so much of it as may pay his debt ; or where the subject is corporeal, to authorise a sale and payment out of the proceeds.' 448. In a furthcoming. Is it necessary to call the common debtor ? State the reason. It is necessary to call the common debtor ; because the cre- ditor must establish his right to the fund by proving that he is the creditor of the common debtor who is entitled to resist the conclusions of the action upon grounds relating to the validity of the debt.^ 449. What objections are competent to the common debtor, and the arrestee respectively, in an action of furth- coming ? (1) To the common debtor, that he is not debtor to the ar- rester. (2) To the arrestee, that he is not debtor to the common debtor ; or that he has a lien over the property ; or that the ar- restment is informal : or that he is under double distress.^ IX. INDBNTUKE. 450. What is the effect of an indenture entered into by a minor without his father's consent ? It is null ; ■* but in one case an indenture was sustained which ' Ersk., 3, 6, 16. » Bell's Com., i, 609 (ii, 66). 2 Ersk., ib. * Low, 14tli Nov. 1797 ; Hume, 422. [p) The pursuer must also establish the debt due to himself in order to prove the extent of his right to the subject arrested ; Ersk., 3, 6, 16. Digitized by Microsoft® INDENTDKE. 215 had been entered into by a minor apprentice, with his father's knowledge and acquiescence, although the latter had not sub- scribed the deed as consenter.'(r) 451. May indentures be after-stamped? (1) All kinds of indentures may be after-stamped within three months, when executed within fifty miles from the limits of the weekly bills of mortality, and within six months when at a greater distance.^ (2) Indentures of law apprentices may be stamped at any time on payment of a penalty.^ But it is to be observed that Queen Anne's Act imposes a nullity, which it declares cannot be removed, and that the nullity is not expressly abrogated by the Act of Victoria.(s) 452. Where an apprentice-fee has been paid, may repetition of any part of it be demanded on the death of the apprentice or master ? (1) On the apprentice's death, repetition cannot be demanded of any part of the fee ; because the contract, being necessarily personal, is dissolved by his death.* (2) On the master's death, a proportion of the apprentice-fee is claimable for the period of the apprenticeship unexpired ; as the obligation on his part is not merely upon himself, but also upon his heirs, executors, and successors." But no portion of the 1 Harvie, 7th March 1829, 7 S., ^ 19 and 20 Vict., e. 81, § 3. 561. * Shephard, M., 589. ' 8 Anne, c. 9, §§ 37, 38. « Ogilyy, 2 Br. Sup., 34. (r) In the case (Harvie) referred to the circumstances were not exactly as here stated. The minor's father was dead ; the indenture was entered into with consent of the minor's elder brother, who was held out as curator ; and with the knowledge of his uncle, who was his curator-nominate, but did not interfere. (s) The regulations of the 8 Anne, c. 9, referred to, as to payment of the duties, and the declaration, that failing such payment the instrument shall be void, were long ago out of force ; Tilsley, p. 93 ; and accordingly the 19 and 20 Vict., c. 81, J 3, refers, not to the Act of Anne, but to the 7 Geo. IV, u. 44, as having made it incompetent to stamp indentures after the expiration of six months from their date, and provided the remedy stated in the answer. Digitized by Microsoft® 216 INDENTUEE. fee can be demanded if the master's representatives are ready to perform his part of the contract, by transferring the apprentice to another master properly qualified.^ 453. "Where the master, by the misconduct of the apprentice, has sustained loss and damage exceeding the penalty in the indenture ; May he recover the amount of his loss from the cautioner or the apprentice ? Without a substantive obligation by the cautioner for general loss and damage, the master cannot demand from him more than the amount of the penalty ; but he may recover from the appren- tice whatever loss he has sustained by breach of the indenture.^ 454. What circumstances must concur to entitle a master to reclaim his apprentice after enlistment ? (1) The master must, within one month after the apprentice has left his service, emit the oath prescribed by the Mutiny Act before a Justice of the peace. (2) The apprentice must be bound by a regular indenture for four years. (3) The indenture must be certified by a justice of the peace,- within three months from the commencement of the apprentice- ship, and before the enlistment. (4) The apprentice must be under twenty-one years of age. (5) If the apprentice has been previously bred to the sea, he cannot be reclaimed from the Navy.^ X. SUBMISSION. 455. What is the nature of a contract of submission ? It is a contract between two or more parties, whereby they agree to refer disputed rights or claims to the determination of ' Cutler, m;, 583. « 19 Vict., c. 10.(0 2 Duff on Deeds, 294; Gunn, 21st July 1835, F.C., 13 S., 1142. («) This is tlie Mutiny Act, which is passed every year, but is not printed ad langum in the statutes at large. Digitized by Microsoft® SUBMISSION. 217 one or more arbiters, as private judges, and bind tliemselves to abide by and implement the decision. ^ 456. May a submission be verbal ? A verbal submission is ineifeotual, except where the interest is of a very trifling amount. The " Articles of Eegulation con- cerning the Session " 1695, protecting decrees-arbitral against challenge, refer only to subscribed submissions.^ 457. In entering into a submission with a minor or a com- pany, what ought to be done to make the submission effectual ? (1) In submissions with minors, the guardians must concur ; and they should be taken bound personally to implement the de- cree-arbitral, as it is exposed to the risk of being set aside, as re- gards the minor, on his attaining majority, on the ground of minority and lesion. (2) A submission with a private company ought to be sub- scribed, not only by the company firm, but by the whole partners, as submission is not an ordinary act of administration.^ 458. May a factor loco tutoris, or executors, or trustees, enter into a reference without special powers ? (1) A factor loco tutoris appears to have power to enter into a reference regarding moveables, but not regarding heritage.*(tt) (2) It is doubtful whether executors or voluntary trustees can refer, without special authority in the deed of their appointment, as they act for the sole purposes of collection and distribution.* (3) A trustee for creditors, with the consent of the commis- sioners, has this power under the Bankrupt Act.^ 459. May a married woman enter into a submission ? ^ Ersk., 4, 3, 29. * Falconer, 16380. " Menzies Lect., 383 (395) ; Eraser, " Duff on Deeds, 304 ; Bell's Prin., M., 8476 ; Eerrie, 5th June 1824, 3 1998. S., 113. " 19 and 20 Vict., c. 79, § 176. » Lumsden, M., 14567. (m) It wag observed, however, in Falconer's case that " the pupil might be restored ex capite Icesionis.''' Digitized by Microsoft® 218 SUBMISSION. The general rule is, that a married woman cannot enter into a submission ; because she is incapable of binding herself to im- plement the decree. But it is thought that a submission by a married woman would be sustained, (1) where she carries on a separate trade, and her husband is abroad relative to the afPairs of such trade ; or (2) in a question with her husband as to the amount of a separate aliment ;(a;) or (3) in regard to her separate estate, from which her husband's y«s mariti and right of adminis- tration is excluded.^ 460. Where an agent enters into a submission, binding him- self as taking burden for the principal to abide by, implement and fulfil the decree-arbitral ; Will the agent, on proving that he had been authorised by his principal, be personally bound ? State the reason. The agent will be personally liable to implement the decree- arbitral ; because the obligaj^ion is not merely an undertaking that the principal shall recognise and adopt the arbitration, but an en- gagement on the agent personally to fulfil whatever the arbiter shall award, whether his constituent shall acknowledge it or not.^ 461. Must the arbiter, in all cases, be named in the deed of submission ? In a submission of existing or anticipated disputes, it is es- sential that the arbiter be named, on the principle of delectus per- > Duff on Deeds, 305; M'Gregor's " Woodside, 4th Feb. 1848, 10 D., Trastee, 22d Jan. 1820, F.C. -.{x) 604. Ersk., 1, 6, 25. [x) Snch a, submission is very different from ordinary contracts of that description, because the husband could at any time annul the award by putting an end to the separation, and it might not in all circumstances be binding on the wife ; but the case of M'Gregor's Tr., cited, involved no question of this kind. There had been a contract of separation, in which the parties agreed to submit to arbitration the annuity to be paid to the wife. It was fixed at JESO, restrictable to £50, if husband gave heritable or personal security ; he gave security over a house, and afterwards failed. The trustee for his creditors challenged the security as a postnuptial pro- vision ; but it was sustained, as being effectual during the separation, the husband's right of putting an end to which could not be attached by his creditors, and no fraud being suspected. Digitized by Microsoft® SUBMISSION. 219 sonce, and that to sanction submissions which did not name the arbiters -would be equivalent to creating a new court. ^ But an ex- ception to the rule is admitted (1) in arbitrations under the Friendly Societies Acts f and (2) although a prospective engage- ment to refer future or anticipated disputes to arbiters not named, is not obligatory, yet the engagement is binding, although the ar- biters be not named, where the reference forms an essential part of another contract, and is of the nature of an agreement for the settle- ment of disputes which may arise out of it during its currency.^(2/) " The difference lies not in the reference being or not being con- tained in the body of a contract ; but in its being a part of a con- tract in this sense, that the parties having agreed that a particular thing shall be ascertained or done, further agree that it shall be ascertained or done in a particular manner, namely, by arbitra- tion."* 462. What is the effect of a submission to A and B, whom failing, to any person to be named by the sheriff? The submission will be effectual during the life of A and B, but it will fall by their death. ° 463. Does interest or relationship in the arbiter disqualify him from acting ? (1) Interest (a) in the arbiter will not disqualify him if it be 1 Buclianan, M., 14593. * Orrell, 22d Feb. 1859, 21 D., ^Manson, 5th June 1840, 2 D., 554,^. Lord Deas.(2) 1015. " Hendry's Trustees, 28th May " MenziesLect.,388 (400) ; Smith, 1851, 13 D., 1001. 28th Feb. 1843, 5 D., 749 ; Hendry's Trustees, 28th May 1851, 13 D., 1001. (y) Such a clause of reference in a mineral lease, " to persons of skill, to be chosen mutually by the parties," means the nomination of one man of skiU on each side, and does not imply the nomination of an umpire ; Coch- rane, 20th March 1861, 23 D., 865 ; Merry, &c., 21 D., 1337, 22 D., 1148 ; aff. 26th March 1863, 1 M'P., 14. (z) See also the cases of Selkirk, M., 627; Pearson, 4th Feb. 1859, 21 D., 419 ; BirreU, 9th March 1859, 21 D., 640; and M'Cord, 20th Nov. 1861, 24 D., 75. (a) It is not a disqualification that the arbiter is the engineer for a rail- way company on the works to which the contract in which he is appointed Digitized by Microsoft® 220 SUIJMISSION. known to the parties at the date of the submission ;' hut it will be a disqualification if it subsequently emerge.^ (2) Eelationship within the degrees disqualifying a judge is no objection, if known.' 464. Does a submission fall by the marriage of a female sub- mitter ? It is thought that the submission will not fall if intimated to the husband ;(6) on the principle, that as one of the parties who has assigned his claim to a stranger continues bound to implement the decree-arbitral to the other, so, on the other hand, the latter is excluded from the plea that by the assignation the submission has fallen.* 465. What is the effect on the submission of the bankruptcy of one of the parties ? A submission does not lapse by the bankruptcy of either party ; but it must be intimated to the trustee in the sequestration, other- wise the decree-arbitral will not be binding on the creditors.' 466. Within what time does a submission expire ? (1) The submission expires on the expiry of the period speci- fied in the submission, where the deed contains such a specifica- tion."^ (2) Where the endurance is left blank, whether with or with- out the words "next to come'' after the blank, the submission ex- > Johnston, 8th July 1817, 5 Dow, ' Henry, 29th Jan. 1835, F.C. ; App., 247. . . Duff on Deeds, 324. 2 Mackenzie, 19th Dec. 1828, 7 « Barhour, 21st Nov. 1811, F.C; S., 215 ; Tenuant, 16th June 1836, Grant, 23d June 1820, F.C. 14 S., 976. ' Donaldson, 26th Jan. 1770, M., ' Duff on Deeds, 310. App., " Arbitration," No. 1. relates ; Trowsdale, 12th July 1864, 2 M'P., 1334 ; 15th Dec. 1865, 4 M'P., 31 ; nor that an oversman appointed by the Lord Ordinary under the Lands Clauses Act had previously valued the subjects under a remit from the Sheriff; Mackenzie, 21st Dec. 1861, 24 D., 251. See as to construction of clauses of reference in contracts, Pearson, 4tli Feb. 1859, 21 D., 419 ; M'Cord, 22d Nov. 1861, 24 D., 75. (6) Question whether a submission as to moveable claims by a married woman, to which her husband consents as her administrator and for his own interest, falls by his death ; Robertson, 6th Feb. 1847, 9 D., 599. Digitized by Microsoft® SUBMISSION. 221 pires on the lapse of a year and day after the last date of the sub- mission.^ (3) Where the submission contains no blank, nor a power to prorogate (which implies a limitation),^(c) but refers indefinitely to the decision of arbiters, questions, which evidently may not arise until years have elapsed, the submission will not expire by the lapse of a year.^ (4) A submission also expires by the death of either party,(rf) unless in the case of a judicial reference, or by the death of the arbiter.* (5) After the submission is expired the proceedings may be validated by homologation, as by appearing and pleading before the arbiter. ^(e) 467. What classes of submissions do not fall by the death of either party, and how may the risk of expiration by death be obviated in ordinary cases ? (1) A submission does not fall by death, where it forms part of another contract for the settlement of disputes which may arise out of it during its currency, but it endures as long as the contract to which it relates.^ ' Wallace, M., 639 ; Stark, 23d * Macanqual, M., 686 ; Robertson, Dec. 1820, F.C. App. 6th Feb. 1847, 9 D., 599. 2 Menzies, 2 Br. Sup., 137. (c) ' Fleming, 7tli July 1827, 5 S., »Ersk., 4, 3, 29; Halket, 16th 906. Dec. 1826, 5 S., 154 ; Fleming, 7th » Montgomerie, 23d June 1848, July 1827, 5 S., 906. '* 10 D., 1387. (c) In the case of Menzies, here referred to, there was no time specified, and the submission was held to expire at the end of year and day. (d) See infra, 467. A submission falls by the death of one of the parties, though a third party who has the substantial interest in it, and is a consenter to it, may be willing to go on with it as if he were the principal ; Eobertson, 6th Feb. 1847, 9 D., 599. (c) There was a good deal of difference of opinion among the judges in the case of Fleming, and the judgment seems to have gone rather on the ground that the submission had not expired, though even on that point they were not unanimous. See also Orrell, 22d Feb. 1859, 21 D., 554 ; Dundee & Aberdeen Railway Co., 31st Jan. 1851, 13 D., 552. Digitized by Microsoft® 222 SUBMISSION. (2) A judicial reference subsists until the termination of the process, and does not fall by the death of either party.' (3) Submissions under the Lands Glauses Consolidation Act.^(/) (4) Where a reference had been made to a professional person, for the purpose of winding up the affairs of a company, and divid- ing the assets amongst the partners and their heirs, it has been held that the purpose of the reference and the qualifications of the re- feree showed that it was not an ordinary submission, but a con- tract to have the balance ascertained by a referee of skill, which did not fall by the death of one of the parties.' (5) A submission may be perpetuated by a special provision in the deed that it shall not fall by the death of either party.* It is said that the submission will subsist where the parties bind them- selves, their heirft, executors, and succe^ors,((f) to implement the de- cree-arbitral f but this is doubted by Professor Menzies.^ 468. May an arbiter or an oversman prorogate without autho- rity in the submission ? An arbiter cannot prorogate without express authority;' but an oversman appears to have power to prorogate, although not ex- pressly authorised by the submission, where it has been conferred on the arbiters themselves.* ' ■Watmore, 17th May 1839, F.O., » Duff on Deeds, 323 ; Orrell, 22d 1 D., 743. Feb. 1859, 21 D., 554. ■' 8 Vict., 0. 19 ; Cal. Eail. Co., « Menzies Lect., 892 (404). 12th Deo. 1849, 12 D., 338. ' B. of Linlithgow, M., 636. ' Orrell, 22d Feb. 1869, 21 D., « Glover, 11th Feb. 1805, H. of 554. ^ L., not reported ; see Parker on Ar- * Ewing & Co., 19th Dec. 1820, bitration, 159. F.C. {/) The provision referred to (J 24) is quite express, but the parties in the case quoted, note 2, instead of following out the course prescribed by the statute (§ 35), where an award is not issued within a certain time, signed a minute prorogating the reference to the day of ; and it was contended, though not successfully, that this took it out of the statute, and converted it into a commbn law submission. (g) The observation (per Lord Deas) in OrreU's case was — " Of the com- petency of binding their heirs, even in an ordinary submission, there can be no doubt whatever ;" but whether that quite comes up to the statement in the answer may perhaps be doubted. The usual style of a submission binds tlie heirs, &c., of the parties, and contains also the special provision here referred to. Digitized by Microsoft® SUBMISSION. 223 469. Within what time may a submission be prorogated ? A submission may be prorogated by the parties themselves at pleasure. (/i) But prorogation by the arbiter must be within the term of endurance of the submission specified in the deed ; ^ or, if the endurance is blank, within a year and day of the last date of the submission.^ 470. May a party to a submission, during its dependence, assign his claim under it, so as to substitute the as- signee in his place ? Yes ; but the cedent remains bound to implement the decree- arbitral to the other party, notwithstanding the assignation.''(4) 471. Is an arbiter bound to decide? A sole arbiter after acceptance is bound to decide ; ^(Jc) but one of two arbiters can neither be compelled to pronounce an award nor choose an oversman ; because it may be impossible for him to agree with the other, either in the award to be pronounced, or in the selection of an umpire.^ 472. At what stage of the proceedings ought the nomination of an oversman by the arbiters to take place ? The arbiters ought to nominate an oversman before they pro- ceed to consider the matters in dispute ; " because they are more likely to agree upon a proper choice of one before they them- selves begin to quarrel."^ > E. of Linlithgow, M., 636. ^ White, M., 633. 2 Wallace, M., 639. • • Per Lord Elleiiborough;(Z) Men- ' Henry, 29th Jan. 1835, 13 S., zies Lect., 389 (402) ; Crawford, 4th 361.(0 ^eb. 1858, 20 D., 488. * Marshall, 26th March 1853, 15 D., 603. (A) This is properly a renewal, rather than a prorogation. («■) The only point decided or raised in Henry's case was the assignee's right to get decree in his own name ; but Lord President Hope expressed the opinion here stated on the other point. ih) This is the general rule, but " The arbiter may have good reasons for declining to proceed, such as ill-health, an intention of going abroad for a long time, or an emerging interest of his own ;" per Lord President M'Neill in Marshall, cited. (I) Jarman and Bythewood's Conveyancing, i, 665. Digitized by Microsoft® 224 SUBMISSION. 473. Where the arbiters cannot agree as to their award, may they be compelled to choose an oversman where they have power to do so ? No ; because they may be equally unable to agree in the se- lection of an oversman as in the decision of the dispute.^ 474. Where there are a plurality of arbiters, may a majority decide ? An award by a majority of the arbiters is not effectual, unless the deed confers power on the majority to decide. ^(m) But where the submission contains such a power, a decree-arbitral signed by a majority is valid, although not subscribed by the dissentient minority.^ 475. What is necessary to warrant the oversman to proceed with the reference ? (1) Devolution on difference in opinion of the arbiters ; * or (2) the refusal of one of two arbiters to act.^(o) ' White, M., 633. « Bryson, 10th June 1823, 2 S., '' More, M., 14720. 382 ; Gordon, M., 655. " Macallum, 3d June 1825, 4 S., ^ Middleton, 9th June 1721, Eob. 66, aff.(») App., 391. (m) From the report of More, cited, it seems doubtful whether it was a, question about a submission. It bears, " The Lords found, since one of the four friends nominated to divide the 1500 marks among the children was dead, that the division made by the three surviving could not subsist, but that it ought to fall to them as it would by course of law and succession ab intes- tato." In Kiddel, M., 14720, an opposite decision was given, a decree by two out of three arbiters being sustained, though the deed gave no power to a majority to decide. See also Watson, ibid. (n) 23d May 1826, 2 W. and S., 344. See also Love, 1st June 1825, 4 S., 53. (o) It seems doubtful whether the case of Middleton, here cited, is to be relied on as an authority for what is here stated. In that case the arbiters had appointed a day for pronouncing decree ; they met, and one of them gave his • opinion, the other declined to pronounce any decree, whereupon the appellant took a protest, and the oversman being present, appointed the next day, and then gave judgment. In a recent case, however (Frederick, 7th July 1865, 3 M'P., 1069), an opposite view seems to have been taken. Here an award signed by one arbiter and an oversman, in whose favour there was no devolution, was held to be invalid ; and it was observed per Digitized by Microsoft® SUBMISSION. 225 476. Does prorogation by an oversman, to whom only some of the points in dispute have been devolved, keep the whole submission in force ? The effect of the prorogation is to continue the submission only in regard to the matters in dependence before the oversman, but not the whole matters in the submission. ^(p) 477. How is the attendance of witnesses enforced ; and may they be compelled to attend in a different county ? A compulsory order may be obtained from the Judge Ordinary or the Court of Session, upon an application, not in the Bill Chamber,(?-) but by petition to the Court, authorised by the ar- biter.^ A witness cannot be compelled to attend in a different county, ^(s) unless it be absolutely necessary, as in a dispute about marches. 478. May interim decrees be pronounced without express authority in the submission ; and is such a decree effectual if the submission has been allowed to expire without a final award ? Interim decrees, it is thought, may be pronounced without express authority ; especially where the reference is articulate, > Langs, 23d Nov. 1852, 15 D., « Ersk., 4, 3, 31 ; Harvey, 7th 38, rev. 8th May 1855 ; 2 M'Queen, July 1826, 4 S., 809. App., 93. 8 Gordon, M., 634. Lord Cowan, that " to give the oversman jurisdiction to act, even when re- gularly appointed, the arbiters must have differed in opinion." It was also held that under a formal submission the nomination of oversman must be made in writing. (p) Devolution does not import prorogation ; Thomson, 28th Jan. 1818, F.C. {r) In vacation the application is made in the Bill Chamber ; Caird, Ist June 1865, 3 M'P., 851. The Court interponed their authority to appointment of commissioner to take depositions of havers in England, and granted warrant for diligence to cite them ; Blackies, 8th July 1851, 13 D., 1307. (s) The course in such a case is to take the evidence on commission ; but in Caird, 1st June 1865, 3 M'P., 851, an application for warrant to cite witnesses and havers resident in different counties to appear before the ar- biter was granted. P Digitized by Microsoft® 226 SUBMISSION. consisting of detached heads, which may be taken up separately, and where no particular reason requires that they should all be kept up till every one of them is decided. '(<) It is said by Erskine, that if the arbiters " should presume to pronounce judg- ment upon all the articles claimed on the one side, and leave all those on the other undetermined, the decree is null."^ But where a valid interim decree has been pronounced, it is effectual, although the submission be allowed to expire before a final de- 479. May an arbiter claim remuneration or award expenses, where no provision is made in the submission for the arbiter's remuneration, or the expenses of the parties ? (1) The general rule is, that an arbiter is not entitled to re- muneration, unless he stipulates for it before acceptance of the submission, the office being gratuitous. \u) (2) But it has been held, although with much difference of opinion, that an arbiter was entitled to a fee where the labour required of him in perform- ing his duty was so peculiarly professional that he must have been selected from that circumstance alone ; and where, from the ar- biter's humble rank of life, it could not be presumed that he in- tended to give, or the submitters expected to obtain, his services ' Lyle, 2d Deo. 1842, 5 D., 236 ; » Taylor, 19th Jan. 1822, 1 S., Lovat, M., 625. 253 ; M'Kessook, 14th Nov. 1822, 2 ' Ersk., 4, 3, 33. S., 13. * Kennedy, 20th Jan. 1819, F.C. {/) In Lyle, cited, note 1, there waa a clause in the deed which was held to warrant interim decrees ; hut on the general question here stated the judges were not quite agreed ; and in Frederick, supra, note (o) to Ans. 475, it was observed per Lord Cowan — " It is clear that when arbiters, hav- ing differed in opinion, are about to devolve a submission on an oversman, they must devolve on him the whole matter submitted, unless they have special power by the deed of submission to pronounce interim decree, and to devolve on him those particular points on which they diifer." (m) Since the judgment in Kennedy, cited, the question has been re- peatedly raised whether an arbiter is entitled to stipulate for remuneration. See Baillie, 19th May 1829, 1 S., 619 ; Fraser, 5th July 1834, 12 S., 887 ; Fraser, 26th May 1838, 16 S., 1049. In the last case the stipulation was made after the acceptance, but at an early stage of the proceedings, and was sustained on the verdict of a jury finding that it did not imply corruption. Digitized by Microsoft® SUBMISSION. 227 gratuitouBly.^(a;) (3) Where tlie arbiters are the ordinary law agents of the parties, they are entitled to charge for their trouble in the suhmission.^(2/) (4) A judicial referee is entitled to a fee.' (5) An arbiter may award expenses to either party, although the submission contains no authority to that eifect.* 480. "What is peculiar in the clause of registration of the submission ? By this clause the parties consent not only to registration of the submission, but also of the prorogations and interim or final decrees to follow upon it for the purpose of summary execution, which cannot proceed on the decree-arbitral, unless the submis- sion contain a consent that both be registered for that purpose. ° 481. Does an award, in all cases, require to be holograph or tested ? (1) A decree-arbitral must be a formal attested deed." (2) The judgment of a judicial referee requires neither to be holograph nor tested ; because it is an act to which the parties are held to have consented that the authority of the judge should be interponed.^ (3) The opinion of counsel upon a mutual memorial is binding as a decree-arbitral, although authenticated merely by the coun- 1 Macallum, 26th June 1810, F.C. * Ferrier, 28tli Jan. 1843, 5 D., ' Lyle, 2d Dec. 1842, 5 D., 236. 456, aff. 18th April 1845 ; 4 Bell's ' Baxter, 1st June 1838, 16 S., App., 161.(0) 1085 ; Tates, 7th June 1848, 10 D., ' Wood, M., 624 ; Knox, M., 625. 1233. ' Robertson, M., 653. ' Menzies Lect., 404 (417), note. (x) Professor More (Notes on Stair, p. 55), says Macallum, cited, " can scarcely be relied on as authority," and that "after having been carried by appeal to the House of Lords, it was compromised before the hearing." (y) Lyle, cited, was a special case, and can hardly be held as warranting this rule. In that case the objector's own agent and arbiter had made pro- fessional charges, but it did not appear that the other had done so ; and Lord Jeffrey remarked — " One would not be inclined to sanction a, mixture of the character of arbiter and agent." (2) The same judgment had been given, Robertson, 16 Dec. 1886, 15 S., 199. p2 Digitized by Microsoft® 228 SUBMISSION. sel's signature ; because the parties are held to have in view the invariable form in which such opinions are embodied.* (4) A decree-arbitral pronounced on a Scotch submission to an arbiter in England, and authentic by the law of that country, does not require to be probative by the law of Scotland.^ 482. May the construction of a decree-arbitral be aided by extraneous evidence ? The construction of the decree-arbitral cannot be aided by ex- traneous evidence ; (a) the decree-arbitral being the only legal evidence of the meaning of the arbiters ; nor is it competent to prove by parole the grounds on which the award proceeded, or that there was any agreement between the parties ajpart from the award.^ But if a judicial award contains a reference to the arbi- ter's notes, these may be read as part of the award ; ' and, even without such a reference, it is said that where the award is ambi- guous, the Court would call upon the referee to explain or rectify it ; because until the judgment of the referee he confirmed by the Court, the proceedings are still open, and a judge is entitled to withhold his sanction from an ambiguous award.* 483. An arbiter executed and posted for the parties, a de- cree-arbitral on the last day of the subsistence of the submission, but it was not delivered to the parties un- til the submission had expired ; Was it effectual ? Yes; a decree-arbitral being effectual if signed and, within the » Fraser, 29th July 1850, 1 Bell's * Mackenzie, 9tli March 1843, H. App., 111. of L., 2 Bell's App., 43. ■' E. of Hopetoun, 6th March 1856, ' Duff on Deeds, 348. See Ander- 18 D., 739. son, 22d June 1833, 11 S., 778. = Guthrie, 18th March 1858, 20 D., 826. (a) In King, 20th May 1828, 6 S., 1006, an opinion was expressed (per Lord Justice-Clerk Boyle) that " where on the face of the deed itself there appears an excess of power, reference may perhaps competently be made to notes to remove all doubts ;" and in the case of Guthrie, cited, infra, note 3, the arbiter's notes were looked at with the view of ascertaining whether, in calculating the sum allowed as the value of ground taken for a railway, he had proceeded on the basis of an alleged agreement by the company. Digitized by Microsoft® SUBMISSION. 2'2a period prescribed by the submission for issuing it, put by the ar- biter in the course of transmission, for the purpose of being deli- vered.' 484. On what grounds are decrees-arbitral reducible under the " Articles of Eegulations concerning the Session," dated 29th April 1695? By the "Articles of Eegulations" it is declared, that decrees- arbitral shall not be reducible, " at the instance of either of the parties submitters, upon any cause or reason whatsoever, unless that of corruption, bribery, or falsehood to be alleged against the judges-arbitrators who pronounced the same." 485. Is refusal to receive evidence, or to hear the parties, on the part of the arbiter a relevant ground of reduction of the decree ? The refusal to receive evidence (6) or to hear the parties is, in the general case, a competent ground of reduction ; and it may be laid down as an absolute rule, that no decree-arbitral can stand where the arbiter has received the evidence of one of the parties, and has refused to hear the other.^ But the parties to a submis- sion are not entitled to be re-heard, and it does not vitiate the ar- bitration that the oversman had taken part in the proceedings throughout, and had at length pronounced decreet-arbitral on in- ' M'Quaker, 19th March 1859, 21 ' Sharpe, 24th Feb. 1815, H. of D., 794. L., 3 Dow'p App., 102 ; E. of Dun- more, 28th Jan! 1835, 13 S., 356. (6) The rule in regard to receiTing evidence should rather be stated in the opposite way ; a refusal to receive it is in general not a valid ground of reduction. A submission having been devolved on an oversman, one of the parties craved a proof; which was refused. In a reduction of the award, it was held " that the arbiter was sole judge of the propriety of allowing a proof ;" and observed, per Lord Justice-Clerk Inglis, that " a refusal of proof not only affords no presumption of any evil intention on the part of the arbiter, but is in many cases a perfectly correct course, and it may be imperatively forced on the arbiter by the highest considerations of justice;" Ledingham, 16th Dec. 1869, 22 D., 245. The same principle had been re- cognised {per Lord Fullerton) in Mitchell, 17th June 1848, 10 D., 1297, though there the award was set aside on the ground that the arbiter had received evidence on the one side, and refused to do so on the other. See also Miller, 10th March 1855, 17 D., 689. Digitized by Microsoft® 230 SUBMISSION. formation obtained by him as oversman elect ;^ and wbere the ar- biter is selected as a person of skill, and the reference relates to matters of opinion, he is entitled to exercise his own judgment, and is not obliged to listen to the opinions of other skilled persons.^ 486. What is the effect of an award ultra vires compromissi ? Such an award generally is sustained only in so far as it is within the submission, and reduced quoad excessum.^ But where the decision of one point, which is ultra vires, cannot be set aside without affecting another which is within the submission, the award will be wholly reduced.^ 487. What is the effect of a submission with regard to pre- scription ? A special submission interrupts prescription ; because it is equivalent to a demand by the creditor of his claim, and to joining issue with the debtor in an action at law. But a general submis- sion does not interrupt, unless followed by proceedings pointing out the particular claims. "(c) XI. CONTBACT OF COPARTNERY. 488. Define partnership. Partnership may be defined as " a mutual contract and volun- tary association of two or more persons for the acquisition of gain or profit, with a contribution, for that end, of stipulated shares of goods, money, skill, and industry."^ 1 Crawford, 4tli Feb. 1858, 20 D., = Crawford, M., 6835 ; Kidd, 19th 488. June 1810, F.C. 2 Johnston, 8th July 1817, 5Dow's * Reid, 15th Dec. 1826, 5 S., 140. App., 247 ; Macdonald, 8th Dec. « Duff on Deeds, 307. 1843, 6 D., 186 ; Mitchell, 17th June 6 Bell's Prin., 351. 1848, 10 D., 1297 ; M'Nair's Trus- tees, 16th Feb. 1855, 17 D., 445. (c) Several of the matters referred to in this title should he, and gene- rally are, provided for in the deed of submission ; such as those in Ans. 465, 466, (4) (including agreement that in the event of the arbiter's death any evidence, &o., previously taken shall be available in any after proceedings between the parties), 468, 472, and 478. Digitized by Microsoft® CONTRACT OF COPARTNERY. 231 489. Can any one of several partners bind the company by signing the firm to a bill, if the contract prohibits his doing so ? State the reasons. (1) If the bill is granted in relation to a matter which might reasonably be supposed to fall within the line of the company's business, the company will be bound by it, if the receiver was ignorant of the prohibition ; because the public have no notice of the provisions of the contract, being a private deed, and are en- titled to rely on the law of partnership, which establishes a general institorial power in each partner to bind the company. (2) If the party receiving the bill was aware of the limitation, he cannot claim upon it against the company, although granted in relation to the company's business ; as he is barred by personal exception from pleading the general law of partnership. (c?) (3) If the bill is not in the line of the company's business, the firm will not be bound to the original receiver of the bill ; be- cause the institorial power of binding the company at common law applies only to matters connected with the business. (4) If the company have recognised or adopted the bill by the prohibited partner, it will be binding on them, whether in the line of the business or not, the objections otherwise competent to them being excluded personali exceptione. (5) If the bill, during its currency, has found its way into the hands of a bona fide onerous indorsee, it will, in all circumstances, be binding on the company ; because onerous indorsees, without notice, and acquiring right before the term of payment, are not liable to latent objections pleadable against the drawer and in- dorser. But if the bill has been acquired by the indorsee after it is due, he is liable to all such objections.^ 490. Does a partner, who fraudulently uses the company firm, bind the other partners ? (1) The whole partners will be bound if the obligation is in 1 Bell's Com., i, 218 (ii, 615); Canal, 23d June 1791 ; Hume, 751 ; Dewar, M., 14569; Clark, SOtli Nov. 19 and 20 Vict., c. 60, g 16. 1821, 1 S., 179 ; Props, of Bo'ness (d) It is not clear, however, that the company, though not liable on the bill, might not be so on other grounds for the debt, if the partner was en- titled to make transactions, though not to sign bills in relation to them. Digitized by Microsoft® 232 CONTRACT OF COPARTNERY. the line of the partnership.^ (2) But if the fraudulent transaction is manifestly different from the company's trade,(e) the company's signature gives no recourse against partners ignorant of the fraud. ^ 491. Can a partner assign his interest in the company? Unless authorised by the contract, or with consent of the others, a partner cannot assign his interest in the company, to the effect of substituting the assignee as a partner, on account of the delectus personce implied in partnership ; but he may assign his interest in the stock and profits due to him at the dissolution of the com- pany.3(/) 492. Where a single individual trades under a company firm. Have the creditors dealing with that firm a preference over the stock ? State the reason. No ; because one person cannot make a partnership ; for the reason, that an individual, by a fictitious partnership, might have a dangerous power of acting unfairly towards his creditors.*(g') 493. Is a company liable for obligations granted by a partner in his own name in the line of the company's busi- ness, and in rem versum of the company ? State the reason. ■ Bell's Prin., 354. ' Neilson, M., 14564. » M'Nair, 19th Jan. 1803 ; Hume, * Nairn, 5th Feb. 1798 ; 1 BeU's 753. lUus., 252. (e) This expression is perhaps not the best for conveying the meaning. Professor Bell's (Com., ii, 618) expression is " the usual course of trade," which probably implies something more than a deviation from the Mnd of trade, though in some cases this might be suflBcient. The view now sug- gested seems to derive support from Professor Bell's illustration, which is — " Thus a reference to arbitration will not bind the company if signed or agreed to by one of the partners," &o. {/) The question in Neilson's case (cited) was not as to an assignation, but as to the competency of attaching a partner's share by arrestment or confirmation as executor-creditor. See as to the point in this answer, note ir) , to Ans. 293. The assignation to the profits may take effect before the dissolution. (g) But a company may be constituted in name of an individual, and summary diligence may proceed against any partner on a decree against the company under that name ; Drew, 14th Jan. 1865, 3 M'P., 384. Digitized by Microsoft® CONTEACT OF COPARTNERY. 233 The company is not liable if the partner is the proper debtor in the obligation, and it is undertaken in his own name ; because the creditor had no grounds for relying on the credit of the com- pany.X^J 494. Where the contract contains a reserved power to a majority of the partners to alter the contract ; Does that give the majority a power to increase the capital ? State the reasoa. No ; because the amount of capital, when iixed by the con- tract, is a fundamental article of the partnership, and cannot be increased without the consent of all the partners. ^(t) »MenziesLect.,412(424); White, "Monro, 5th Feb. 1851, 13 D., 12th Jan. 1841, 3 D., 334 ; Oram, 595. 5th March 1858, 20 D., 751. (A) As a general rule, the statement in this answer is correct ; hut it is not easy to conceive a case purely and precisely meeting the conditions of the question, and the cases cited do not so meet them. In one sense an obligation may be said to be in rem verswm of any and every one who, how- ever indirectly or remotely, derives benefit from it. Of this. White (cited) is an illustration. He had entered into a joint adventure with Heid, a builder, for the erection and letting of houses. Reid was to erect and finish them, and White was to pay him a certain sum by instalments " as the sti- pulated price of erecting and finishing the said buildings.'' Reid employed M'Intyre to execute the briclcwork, and before completion of the buildings failed, having, however, received more from White than was due ; and M'Intyre sued White for payment of his account, who pleaded, successfully, that the contract was not, as alleged, with or for the benefit of the joint ad- venture, but with Reid alone. Here, if White was benefited, it was only through Reid being thereby enabled to make his stipulated contribution to the joint adventure. The contract was entered into by Reid on his own ac- count, and, in the words of Professor Bell (Com., ii, 652), "the transfer to the concern is by the commutative operation of partnership, not by sale and mandate.'' If, however, a company were to be put in possession, and to ac- cept of goods which they knew had been bought by a partner to whom they had given no consideration for them, which would be a direct case of in rem vermm, it seems not quite certain that they would not be liable to the seller. (i) In this answer there is introduced a condition which is not in the question, viz., " the amount of capital, when fixed by the contract," and the rule is laid down too broadly. The judgment in Monro proceeded on the opinions of a majority of the judges, that one of the articles of the contract (which was of a joint-stock company) fixed a limit to the capital in terms which over-rode and controlled the article containing the general power to Digitized by Microsoft® 234 CONTRACT OF COPAETNEEY. 495. "When the contract contains no provision relative to the partners' shares of the profits ; How will these be fixed? (1) Where the shares of the profits are not expressed, they are presumed to be proportionate to the amount of capital contri- buted by each partner. (2) Where neither stock nor profits are specified, the pre- sumption Qi) is for equality, in the absence of proof to the con- trary.^ 496. Where a company holds heritable property, Does a partner's share of it, on his death, fall to his heir or his executor ? It falls to his executor; because the whole property being divisible among the partners at the dissolution of the company, the whole, whether heritable or moveable, is personal as to suc- cession.^(Z) 497. (m) May money owing to a company by one of the > Ersk., 3, 3, 19 ; Menzies Leot., ' Minto, 23d May 1883, 11 S., 415 (427). 632 ; Irvine, ISth July 1851, 13 D., 1367. alter, and excluded its operation in ttat respect. The case was decided on a construction of the contract, and not on the general principle assumed in the question. Had the contract not contained that special clause, the gene- ral power to alter would prohably have been held to extend to and include an increase of capital ; and at all events there is nothing to prevent such a power being given in the contract, the judgment in Monro going only this length, that where the capital is limited, it cannot be increased " without the consent of all the partners, unless the contract contained a clause conferring that power on a majority." (h) It is a presumption of fact, not of law ; Campbell's Trs., H. of L., 5 "W. and S., 16 ; Aberdeen Town and County Bank, 20th Nov. 1859, 22 D., 44. There was no contract, but the principle is the same. (I) The reason is rather because the whole property must be converted into money ; Bell's Com., ii, 645. In Irvine, cited, there does not seem to have been any heritable property belonging to the company. The question was as to the effect of a clause in the contract which declared that a part- ner's share should belong to his heir in rendering that share heritable as to succession. In Minto, the question was whether certain heritable property belonged to the company or to one of the partners individually. (m) This question should be — May money owing to a company by one of the partners be arrested in his hands by a creditor of the company ? Digitized by Microsoft® CONTRACT OF COPARTNERY. 235 partners, be arrested in the hands of a creditor of the company ? State the reason. Yes ; because a company has a separate persona, and is capable of maintaining independently the relations of debtor and credi- tor.' 498. What is the effect of a partner stipulating to be free from losses, in a question with his partners and with the public ? (1) Such a stipulation is effectual among the partners, as they can regulate their individual interests and liabilities inter se, as they please ; but (2) as regards the public it has no effect, as all the partners of a company are held universally responsible for company debts, to " their last acre and their last shilling." 499. How may a person incur responsibility to third parties as a partner of a company, although there is no pro- per constitution of partnership as between the part- ners themselves ? (1) By receiving as a partner (n) a share of the profits, or by entering into an agreement under which he is entitled to a share.(o) 1 Hill, lath Nov. 1849, 12 D., 46. («) The words " as a partner " shonld be delete. (o) TMs rule is now altered. By the 28 and 29 Vict., u. 86, it is en- acted (1) that (§ 1) " The advance of money by way of loan to a person engaged or about to engage in any trade or undertaking, upon a contract in writing with such person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profit arising from carrying on such trade or undertaking, shall not of itself constitute the lender a partner," " or render him responsible as such ;" but (§ 5) in case of the bankruptcy or insolvency of such trader, " the lender of any such loan as. aforesaid shall not be entitled to receive any portion of his principal, or of the profits or interest payable in respect of such loan," " until the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied." And (2) that (§ 2) " No contract for the remuneration of a servant or agent of any person engaged in any trade or undertaking, by a share of the profits of such trade or undertaking, shall of itself render such servant or agent responsible as a partner therein, nor give him the rights of a partner." Digitized by Microsoft® 236 CONTHACT OF COPARTNERY. (2) By permitting his name to be used, or his credit relied on as a partner, whether he participates in the profits or not.' 500. What circumstances, eis ipsis, operate as a dissolution of a company, and what form only a ground for dissolu- tion? (1) The death of one of the partners operates as a dissolu- tion ; because, from the delectus persorwe impKed in partnership), heirs are excluded. But it will subsist after the death of a partner where a provision to that efi'ect is contained in the con- tract ;(p) or, if it be necessarily implied that heirs are to be admit- ted, as in a contract exceeding the term of human life.(r) (2) It is held in England that the marriage of a female part- ner operates as a dissolution ; (s) as otherwise her husband would be introduced into the partnership without the consent of the other partners. (3) The insanity (i) of a partner is a ground of dissolution, but it does not eo ipso dissolve the partnership. (4) Insolvency or bankruptcy under the Act 1696, c. 5, is a ground of dissolution, but it does not alone dissolve a partnership ; because it does not operate as a transfer, nor impose any disability on the partner. (5) Sequestration, or a trust-conveyance to creditors,(M) ope- rates as a dissolution ; because by these means the bankrupt partner is divested of his property. (6) Partnership may be dissolved by mutual consent before the expiration of the term fixed by the contract ; or by a majority ' Bell's Prin., 363 ; Geddes, 24tli July 1820 ; 2 Bligh's App., 270. {p) A contract provided that " in the event of the death of either of the partners during the currency of this contract," " the surviving partner shall continue to carry on the business along with the representatives of the de- ceasing partner." Held that the partnership was not dissolved hy the death of one of the partners, and observed, that the representatives of the deceased partner were neither bound nor entitled to make any election ; HiU, 22d Feb. 1865, 3 M'P., 541. (r) So held, Warner, M., 14603, where the contract was for 124 years. («) Professor Bell expresses an opinion to the same eifect ; Com., ii, 634. (t) Or other disease producing incapacity ; Bell's Com., ii, 634. (u) See Bell's Com., ii, 634. Digitized by Microsoft® CONTRACT OF COPARTNERY. 237 of the partners, provided the dissolution be made on justifiable grounds. (7) It may be dissolved by renunciation, where no term is fixed ; but the renunciation must not be fraudulent, nor at such a time as would occasion injury to the other partners ; or where a term has been fixed for the endurance of the partnership, it may be dissolved by renunciation, on just cause shewn, as impossibi- lity of the accomplishment of the objects of the company. (8) The expiration of the term does not ipso facto dissolve the company, and it may be continued by tacit consent ; but on ex- piration of the term the partners are entitled to separate.' 501. What is necessary to relieve a retiring partner from the future liabilities of the company ? Due notice of his retirement ; (x) because after a credit has been raised on the faith of the partnership, the public is entitled to rely on the liability of all the partners until the separation of any one is notified, or the identity of the firm destroyed. And (1) for the purpose of preventing subsisting credit, (?/) notice must be given to those who have dealt with the company, by letter ; or by personal communication ; or by a change of the 1 Ersk., 3, 3, 25 ; Bell'a Com., i, 219 (ii, 631, et seg.) ■ Bell's Prin., 373-378. (x) Professor Bell says (Com., ii, 648) that " in anonymous partnership, if known to any one person, publication " of retirement " is necessary," and refers to Kay v. Pollock (reported in F.C. as Hay v. Mair), 27th Jan. 1809, where it was so held. The rule in England is understood to be different, and the question may perhaps deserve reconsideration. The rule that a latent partner shall be liable for all obligations of the company incurred while he is a partner, and that even after retiring he shall, until notice, re- main liable for obligations incurred to parties who had been aware that he was a partner, rests on obvious principle ; but it is not so clear that, after re- tiring, he should be liable to parties who, never having known that he had been a partner, cannot allege that they relied on his security. In Aitken, 4th Feb. 1830, 8 S., 446, it was observed per Lord Justice-Clerk Boyle — " I apprehend that in the case of the discovery of a latent partner the onus lies on the party attempting to establish the responsibility to shew that he really was a partner at the time of the transaction." (y) That is to say, to prevent incurring liability for future obligations to former customers ; no notice will relieve a retiring partner of liabilities al- ready contracted. Digitized by Microsoft® 238 CONTRACT OF COPARTNERY. firm ; or by a change on the cheques or invoices ; or by news- paper advertisement, with proof of its having been actually read.' (2) For the purpose of preventing possible {z) credit, notice must be given to the public at large, by gazette and news- paper advertisements, accompanied with all reasonable means to publish the dissolution.^ Private knowledge is equivalent to intimation ; as that is not a matter of solemnity, but for informa- tion only.' 502. On what principle rests the preference of a company creditor over a creditor of a partner on the stock of , the company? The preference of the creditors of the company on the stock is founded on the principle that the partners hold the stock as trustees for payment, in the first place, of the company's debts ; and none of the partners, nor any one in their right as individual creditors, are entitled to more than the reversion after the pur- poses of the trust are fulfilled.* 503. Can an action be maintained, in the first instance, against a partner for a debt of the company ? State the reason. The debt must first be constituted against the company ; be- cause the partnership is held, as in law, a separate person, capable independently of maintaining the relations of debtor and creditor. When the debt has been constituted against the company, the creditor may proceed against the partners without discussing or calling the company ; because each partner is liable in solidum for the company's debts.'' 504. May a creditor of a firm proceed against another and ' Bell's Prin., 384 ; Bell's Com., i, * BeU's Com., i, 215 (ii, 613 and 224 (ii, 640, et seq.) 660); Corrie, 24tli Jan. 1761, F.C. ^ Bell's Prin., 885 ; BeU'a Com., i, <■ Bell's Com., i, 218 (ii, 618) ; 225 (ii, 641). Geddes, 2d June 1827, 5 S., 747; » Aytoun, 19th July 1844, 6 D., M'Tavish, 3d Feb. 1821, F.C. 1409. (a) That is to say, future obligations to strangers or parties who have not previously traded with the company. Digitized by Microsoft® CONTRACT OF COPARTNERY. 239 different firm, composed of the same partners as the firm which are his debtors ? (1) He may, where, although the firms are different, the trade is the same, and they are the same in object and in inter- est.' (2) He may not, where the companies differ in name, in trade, and in capital. ^(6) 505. To what effect does a partnership subsist after its dis- solution ? The partnership is dissolved in so far as the power of con- tracting new debts is concerned ; but it subsists for the winding up of the concern,(c) and terminating all the engagements and re- sponsibilities of the company f and action for realising the com- pany's claims may competently be sued at the instance of the firm.'' 506. Are the representatives of a deceased partner liable for debts contracted by the company before or after his death, where they have paid to the company the de- ceased partner's share of the existing liabilities, and received a full discharge from them ? (1) The representatives continue liable for the company's debts contracted before the death of the partner; as no release by a I Bertram, Gardner & Co., 25th => Bell's Prin., 387 ; and cases Feb. 1795,(a) F.C. ; Royal Bank, cited; Bell's Com. (ii, 637 and 643). 20th Jan. 1813, F.C. * Malleable Iron Co., 21st Feb. ' Forrester's Crsi, 5th Feb. 1798, (a) 1855, 17 D., 4(31. F.C. (a) These cases are not reported in F.C. of the dates given, but they are referred to, Bell's Com., ii, 625, note 2, and 626, note 1. (J) See as to the distinction here stated, Bell's Com., ii, 625, et seq. In all the three cases there quoted the companies as to which the question arose were held to be the same, and the funds and debts were massed to- gether ; but it is to be kept in view that the cases occurred in bankruptcy, and the point to be adjusted was the ranking of the different sets of credi- tors, and so far as that goes the rule is as stated ; but whether in ordinary circumstances a creditor could, at least in the first instance, proceed in the way supposed, Ans. (1), is very doubtful. (c) The Court will, if necessary, appoint a neutral person to wind up ; Bell's Com., ii, 634, 638, and 645. Digitized by Microsoft® 240 CONTRACT OF COPARTNEKY. company to any one of their number, or to his representatives, can discharge the responsibility to third parties for debts already in- curred ; although the representatives may be entitled to relief against the co-partners.' (2) The representatives are not liable for future debts ; as the death of a partner operates as a dissolution of the company,(ciQ and requires no notice. ^ 507. Are the representatives of a deceased partner liable for a debt constituted by bill, and contracted by the com- pany before his death, if the creditor has cancelled and delivered up the bill, and accepted the company's renewal, the creditor being ignorant of the death of the partner ? It is thought that the representatives of the deceased partner will not be liable ; because (1) the death of a partner operates as a dissolution of the company ; and, being a public fact, requires no notice f and (2) the old bill having been cancelled and de- livered up, and the renewal being the bill of a new company, the original obligation is discharged by novation or delegation. ''(e) I Bell's Com,, i, 224 (ii, 639) ; tie, 17th May 1839, 1 D., 745 ; Ramsay's Exrs., ISth Jan. 1814, Aytoun, 19th July 1844, 6 D., 1409. F.C. * Kerr, 22d Feb. 1845, 7 D., 494. '' Authorities in Ans. 507. See Balfour, 5th March 1831, 9 S., ' Ersk., 3, 6, 26, note 128 ; Ohris- 558. [d) Subject to the exception stated in Ans. 500. It is provided by 28 and 29 Viet., c. 86, § 3, that " No person, being the widow or child of the deceased partner of a trader, and receiving by way of annuity a portion of the profits made by such trader in his business, shall by reason only of such receipt be deemed to be a partner of, or to be subject to, any liabilities incurred by such trader." (e) In reference to this question the case of Pollock, 8th Nov. 1868, 2 M'P., 14, may be mentioned, where an opposite judgment was given. There a firm bought goods, and, before payment, advertised that they had transferred the business to A, who would receive payment of all debts due to, and discharge all obligations of, the firm. The sellers received from A a partial payment, and took his bill for the balance of an account, consisting of those goods and others sold to himself. A having failed, the sellers sued the original purchasers for the price. Held that delegation had not taken l^laoe, and that they were still liable. The case, however, was very special. Digitized by Microsoft® CONTRACT OF COPARTNERY. 241 508. Where a partner retires with a share of the profits or an annuity, Will he be liable for the future debts of the company ? (1) A retiring partner will be liable for future debts if he con- tinue to draw a share of the profits. (2) Where he sells his interest in the partnership for an annuity, he will not be liable for future debts ; because this is merely a purchase by the company of his share of the stock. (3) If, in addition to the price of his interest in the company, he receive an annuity in lieu of profits for a certain time, he will continue liable for future debts. (4) If he receive an annuity corresponding to the profits, that is equivalent to profits, and his responsibility for the obligations of the company remains undischarged.' (/) 509. When a partnership is dissolved by death. What are the general rules for fixing the time at which the profits shall be held divisible, in the absence of stipulation ? The rules are, (1) in general the date of dissolution of the partnership is the date of the division of the profits, where that is practicable ; and (2) the representatives of a deceased partner are entitled to participate in the subsequent profits only where such profits are the necessary result of transactions undertaken or com- menced before the dissolution.'' 510. What are the rules as to a company creditor voting and ranking on the sequestrated estate of a company and the partners ? 1 Bell's Com., i, 212 (ii, 644). 2 Bell's Com., i, 230 (ii, 647). (/) A change has been introduced on the points referred to in this an- swer by the 28 and 29 Vict., o. 88, which provides (§ 4) that " No person receiving, by way of annuity or otherwise, a portion of the profits of any business, in consideration of the sale by him of the goodwill of such busi- ness, shall by reason only of such receipt be deemed to be a partner of or be subject to the liabilities of the person carrying on such business ;" but (§ 5) in the event of bankruptcy or insolvency, " such vendor of a goodwill as aforesaid " shall not " be entitled to receive any such profits as aforesaid until the claims of the other creditors of the said trader for valuable con- sideration in money or money's worth have been satisfied." Q Digitized by Microsoft® 242 CONTRACT 01" COPARTNERY. (1) A creditor on the estate of a company is not bound, for the purpose of voting on the company's estate, to deduct from his claim the value which he may be entitled to draw from the es- tates of the partners ; but if he claim on the estate of a partner, he must, before voting, put a value on his claim against the estate of the company, and also against the other partners, and deduct such value from his debt.' (2) When a creditor claims on the estate of a partner in re- spect of a debt due by the company, the trustee on the estate of the partner must, before ranking the creditor, put a valuation on the estate of the company, and deduct from the creditor's claim such estimated value, and rank and pay to him a dividend only on the balance.^ 511. Is there any peculiarity as to the power of sale in a bond and disposition in security, granted by a regis- tered joint stock company ? [g) The power of sale under such a bond implies authority to sell by private contract, as well as by public roup.^(A) 512. What particulars are specified in the memorandum for registering a joint stock company ? (i) 1 19 and 20 Viot., c. 79, ? 61. 3 19 and 20 Vict., c. 47, § 45. 2 lb., i 66. {g) The Acts referred to in this and following questions are repealed, and the subject is now regulated by 25 and 26 Vict., c. 89, " The Companies Act, 1862." (A) This provision is not contained in the Act of 1862. («) I. Company Limited bt Shakes. 1. The name of the proposed company, with the addition of the word " limited " as the last word in such name. 2. The part of the United Kingdom, whether England, Scotland, or Ireland, in which the registered ofSce of the company is proposed to be situate. 3. The objects for which the proposed company is to be established. 4. A declaration that the liability of the members is limited. 5. The amount of capital with which the company proposes to be registered divided into shares of a certain fixed amount; 25 and 26 Vict., c. 89, ? 8. II. Company Limited by Gdaeahtee. (1, 2, and 3 the same as in No. I.) 4. A declaration that each member undertakes to contribute to the assets of the company in the event of the same being wound up during the time Digitized by Microsoft® CONTBACT OF COPARTNERY. A^6 (1) The name of the company. (2) The part of the United Kingdom in which the registered oifice is to be established. (3) The objects of the company. (4) The liability of the shareholders ; whether it is to be limited or unlimited. (5) The amount of the nominal capital, or, in the case of ex- isting companies, a statement of the amount of , stock. (6) The number of the shares into which the capital is to be divided, and the amount of each share.- 513. When the directors of a joint stock company declare or pay a dividend when the company is known by them to be insolvent, What is the extent of their liabili- ty?W They are liable jointly and severally for all the debts of the company then existing, and for all that shall be thereafter con- tracted, so long as they shall respectively continue in office ; pro- vided that the amount for which they shall be liable shall not ex- ceed the amount of the dividend ; and that if any of the directors shall be absent at the time of making the dividend so declared or paid, or shall object thereto, and shall file their objection in writing with the clerk of the company, they will be exempted from the said liability. ^ 1 19 and 20 Vict., c. 47, ? 5 ; and 2 19 and 20 Vict., c. 47, i 14. 20 and 21 Vict., c. 14, § 30. that he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceased to be a member, and of the costs, charges, and expenses of winding up the company, and for the adjustment of the rights of the contributaiies amongst themselves, such amount as may be required not exceeding a specified amount ; 25 and 26 Vict., c. 89, § 9. III. An IThlimitbd Company. 1. The name of the proposed company. (2 and 3 the same as in No. I.) ; lb., § 10. (A) The provision here referred to is not contained in the Act of 1862 ; but if any company carries on business when the number of its members is less than seven for a period of six months after the number has been so re- duced, every member who is cognisant of the fact shaU be severally liable for the whole debts of the company contracted during such time ; lb., § 48. q2 Digitized by Microsoft® 244 CONTRACT OF COPABTNERY. 514. What is the effect of the registration of a company under the Joint Stock Act ? The company becomes a body corporate by the name pre- scribed in the memorandum,(r) having perpetual succession, and a common seal, with power to hold lands.' (m) 515. May a registered joint stock company hold land to an unlimited extent ? No registered company can hold more than two acres of land, but the Board of Trade may emjjower the company to hold lands in such quantity and subject to such conditions as they think iit.2(™) 516. "What is the liability of former shareholders in a regis- tered joint stock company with respect to debts, on the company being wound up ? (o) (1) Where the company is not limited, any person who has 1 19 and 20 Vict., c. 47, ? 13. 2 lb., § 38. (Z) Capable forthwitli of exeroisiDg all the functions of an incorporated company. (m) Act of 1862, § 18. (m) This restriction is now limited to companies " formed for the pur- pose of promoting arts, science, religion, charity, or any other like object, not involving the acquisition of gain by the company or by the individual members thereof ;" and in regard to such companies the Board of Trade pos- sesses the power mentioned in the Answer ; lb., § 21. (o) In the event of a company being wound up, every present and past member is liable to contribute to an amount sufficient for payment of the debts and liabilities of the company, and the costs, chai'ges and expenses of winding up, and for payment of such sums as may be required for the ad- justment of the rights of the contributories amongst themselves ; but — 1. No past member is liable to contribute (1) if he has ceased to be a mem- ber for a period of one year or upwards prior to the commencement of the winding up ; nor (2) in respect of any debt or liability of the company contracted after he ceased to be a member; nor (3) unless it appears to the Court that the existing members are unable to satisfy the contributions required to be made by them. 2. Where the company is limited, if by shares, no member is liable beyond the amount, if any, unpaid on the share which had been held by him ; and if by guarantee, no member is liable beyond the amount of the undertaking entered into on his behalf by the memorandum ; lb., J 38. Digitized by Microsoft® CONTEACT OF COPAETNERY. 245 ceased to be a shareholder within three years prior to the com- mencement of the winding up is subject to the same liabilities to the creditors as if he had not ceased to be a shareholder (being the whole debts of the company and expenses of winding up);"- with the exception, that he is not liable in respect of any debt contracted after he ceased to be a shareholder.^ (2) Where the company is limited, any person who has ceased to be a shareholder within one year prior to the commencement of the winding up is subject to the same liabilities to creditors as if he had not ceased to be a shareholder,' being the amount un- paid on the shares held by him.* 517. In what circumstances may a registered joint stock company be wound up ? [p) (1) When the company, at a general meeting, has passed a 1 19 and 20 Vict., o. 47, 2 61. 3 19 and 20 Vict., c. 47, I 63. 2 lb., I 62. * lb., I 61. (p) A company may be wound up : — I. By the Couet. 1. Whenever the company has passed a special resolution requiring the company to he so wound up. See J 51 of Act. 2. Whenever it does not commence its husiness within a year from its in- corporation, or suspends its business for a whole year. 3. Whenever the members are reduced in number to less than seven. 4. Whenever the company is unable to pay its debts. 6. Whenever the Court is of opinion that it is just and equitable that the company should be wound up ; 25 and 26 Vict., c. 89, § 79, For which purpose an application may be made by the company, or by one or more creditors or contributories of the company ; lb., § 82. II. VOLDNTAKIIY. 1. Whenever the period, if any, fixed for the duration of the company by the articles of association expires, or when the event, if any, occurs, upon the occurrence of which it is provided by the articles that the company is to be dissolved, and the company, in general meeting, has passed a resolution requiring the company to be so wound up. 2. Whenever the company has passed a special resolution requiring the company to be so wound up. 3. Whenever the company has passed an extraordinary resolution to the effect that it has been proved to their satisfaction that the company cannot, by reason of its liabilities, continue its business, and that it is advisable to wind up the same ; lb., § 129. Digitized by Microsoft® 246 CONTRACT OF COPARTNERY. resolution to that effect, oi- when the period fixed by the contract has expired."^ (2) When the company does not commence business within a year from its incorporation, or suspends business for a year. (3) When the shareholders are reduced in number to less than seven. (4) When the company is unable to pay its debts. (5) When three-fourths of the capital has been lost or become unavailable.^ 518. In what circumstances is a registered joint stock com- pany deemed unable to pay. its debts ?(r) (1) When the company delays to pay, or secure, or compound, for a debt exceeding £50, for three weeks after demand. (2) When the inducice of a charge for payment on an extract- decree or extract-registered bond or protest have expired without payment being made.^ > 19 and 20 Vict., u. 47, ? 67. 2 /j. 3 75., j 68. (r) 1. Whenever a creditor in a sum exceeding £50, then due, has served on the company, hy leaving the same at their registered oifice, a de- mand under his hand requiring the company to pay the sum so due, and the company has in the space of three weeks succeeding the service of such demand neglected to pay or to secure or compound for such sum to the reasonable satisfaction of the creditor. 2. The same as in the answer. 3. Whenever it is proved to the satisfaction of the Court that the company is unable to pay its debts ; 25 and 26 Viet., 0. 89, § 80. In the winding up of a limited liability bank in England, a member, who was creditor of the company for a much larger sum than the amount of un- paid capital due on his shares, applied to have part of his claim set-off against the call on his shares ; but it was held " that the amount of an un- paid call cannot be satisfied by a set-off of an equivalent portion of a debt due to the member of a company upon whom it is made," and " that the amount of such call must be paid before there can be any right to receive a dividend with the other creditors. The amount of the call being paid, the member of the company stands exactly on the footing of the other creditors with respect to a dividend upon the debt due to him from the company ;" per Lord Chancellor Chelmsford in re Overend, Gurney, & Co. ; Grissell's case, 10th Aug. 1866 ; Weekly Notes, p. 313. It was observed that the case of a member of an unlimited company would, under J 101 of the Com- panies Act, be different. Digitized by Microsoft® CONTRACT OF COPARTNERY. 247 519. By whom may deeds by a registered joint stock com- pany be granted ?(s) Deeds may be granted in name of the company by any person acting under the express or implied authority of the company.^ 520. In whose name do judicial proceedings at the instance of a company proceed ? (1) Incorporations sue in the manner pointed out in the Eoyal Charter, or Act of Parliament, or Letters Patent, incorporating the body ; and where this is omitted, the proper method is to use the corporate name.^ Joint stock companies, duly registered, are bodies corporate, and accordingly may sue by the name prescribed by the memorandum of association.'(f) (2) Unincorporated joint stock companies may sue in name of their cashier, or other principal officer authorised by the contract of copartnery.^ (3) Mercantile companies, aarrying on business under a proper personal firm may sue in the name of the company, without the name of any of the partners being conjoined.^ (4) Mercantile companies with descriptive firms sue in name of the partners for behoof of the company, or under the descriptive firm along with at least three individual partners named, ^(u) 1 19 and 20 Vict., c. 47, ? 41. * Bell's Com., i, 240 (ii, 629). 2 Ersk., 1, 7, 64 ; Fisher, 7tli Dec. 5 Forsyth, 18th Nov. 1834, 13 S., 1827, 6 S., 216 ; Whitehaven Rail- 42. way Co., 2d June 1848, 10 D., 1127. 6 London Shipping Co., 19th June 3 19 and 20 Vict., c. 47, § 13. 1841, 3 D., 1045. («) There is no express provision in this respect in the Act of 1862, but it is believed that deeds may be executed in the name of the company, as such, simply under its common seal, the affixing thereof being attested on the deed by two officials (such as chairman and secretary, or directors) of the company ; see §§ 55 and 72 of Act. Promissory-notes or bills of exchange are " deemed to have been made, accepted, or indorsed on behalf of" the company, " if made, accepted, or in- dorsed in the name of the company by any person acting under the autho- rity of the company, or if made, accepted, or indorsed by or on behalf or on account of the company by any person acting under the authority of the company ;" 25 and 26 Vict., c. 89, § 47. {t) Act of 1862 ; § 18. (m) See observations of the Lord Chancellor in Commercial Bank, 28th July 1828, 3 W. and S., 365, where a company was called as defender. Digitized by Microsoft® 248 MOVEABLE REAL RIGHTS. XII. MOVEABLE REAL RIGHTS, AND DEEDS RELATING TO SHIPS. 521. Where goods sold, but not delivered, are fraudulently- sold a second time by the original owner to a subse- quent purchaser who obtains delivery ; Can the first purchaser insist for the delivery of the goods from the second ? State the reason. The original purchaser cannot insist for delivery of the goods from the second purchaser, if he has acquired them in lona fide, and is not a participant in the fraud ; the second purchaser, who has obtained delivery, being preferred to the property according to the rule, traditionibus non nudis pactis, dominia rerum transfer- untur} The modification of this doctrine, introduced by the Mercantile Law Amendment Act, applies only to questions arising between the purchaser, and the seller's creditors, or between the seller and sub-purchaser, where the goods have been sold, but have been allowed to remain in the custody of the original seU- er.^(aj) 522. A person granted a trust-disposition for behoof of his creditors, by which he assigned his furniture, with an inventory, and was allowed to continue in possession, but an instrument of possession was expede in favour of the trustee ; Was the furniture poindable at the in- stance of a non-acceding creditor ? State the reason. Yes ; because a conveyance by the owner, although followed by an instrument of possession, but without actual delivery cannot compete with a poinding at the instance of a creditor.^ 523. Where a house and furniture are conveyed by A to trustees, with a right of liferent of the furniture in favour of B while residing in the house ; Is the furni- ture attachable by B's creditors? State the reason. 1 Erak., 2, 1, 18. 3 Bortliwick, 17th Feb. 1829, 7 2 19 and 20 Vict., o. 60, §§ 1, 2. S., 420.('y) (x) See as to this Act, note (b), under Ans. 429. (y) See also Fraser, 26th June 1830, 8 S., 982 ; and Gibson, 29th May 1841, 3 D., 974. Digitized by Microsoft® MOVEABLE KEAL EIGHTS. 249 It has been held that such a conveyance excludes B's credi- tors ; on the ground that the fee is in the trustees, and B's pos- session is in virtue of the liferent."^ 524. Can an effectual security he constituted over corporeal moveables which remain in the owner's possession, or are in the hands of a third party ; and if so, what steps are necessary ? (1) A conveyance of moveables in security, followed by an instrument of possession, will be effectual against the disponer and his heirs without delivery ; but, as against third parties, no effectual security can be constituted over moveables without deli- very, either actual or at least the best which the circumstances will allow.^ The Mercantile Law Amendment Act provides that goods sold but not delivered shall not be attachable by the credi- tors of the seller ; and it is understood that securities over move- ables, retenta possessione, made in reliance on that enactment, are sometimes to be met with in practice, but it is thought that the provisions of the Act do not reach the case of securities. (2) An effectual security may be constituted over moveables in the hands of a third party by bond and disposition in security, executed with reference to an inventory, and followed by intima- tion to the custodier.^ 525. What is the object of the certificate of registry of a ship ; and what particulars must it contain ? The object of the certificate is to shew the nationality, and to provide for the identification of the ship. It must set forth, — (1 ) The name of the vessel, and her port. (2) The details as to the tonnage and buUd. (3) The master's name. (4) The particulars as to the origin of the ship. (5) The name and designation of the registered owner ; and if more than one, the proportions in which they are interested must be indorsed on the certificate.* 1 Scott, 13th May 1837, 15 S., 2 Bell's Com., i, 520 (i, 252). 916. See also Young, 26th June 3 Eadie, 7th Feb. 1815, F.C. 1855, 17 D., 998. ^ IT and 18 Vict., c. 104, I 44. Digitized by Microsoft® 250 MOVEABLE EEAL RIGHTS. 526. Into how many shares may the property of a ship he divided, and how many individuals may be registered as owners ? Under the Merchant Shipping Act, (1) the property of a ship is divided into sixty-four shares; and (2) not more than thirty- two individuals can be registered as owners ; (3) any number of persons not exceeding five may be registered as joint owners of a ship or of a share, but no person can be registered as owner of a fractional part of a share ; (4) a body corporate may be registered as owner by its corporate name.^ 527. How is the property of a ship or share transferred ? The property of a ship or of shares therein, is transferred by a bill of sale by the registered owner in the form prescribed by the Act, containing a description of the vessel as set forth in the certificate of the surveyor, or such other description as. may be sufficient for the identification of the ship ; the bill of sale being executed in presence of and attested by one or more witnesses. After it has been duly executed, it must be produced to the regis- trar of the port at which the ship is registered, with a declaration in terms of the Act ; and he thereupon enters in the register book the name of the transferee as owner, and indorses on the bill of sale the fact of such entry having been made, with the date and hour thereof. The criterion of preference of bills of sale is the date of their record in the register book.^ An entire ship may also be transferred by an agent for the registered owner in a foreign port, in virtue of a certificate of sale obtained by the latter from the registrar of the port where the ship is registered, but the power must be exercised in conformity with the directions con- tained in the certificate, and the conditions and provisions specified in the Act.' 528. How are voluntary securities over ships constituted ; and what is the criterion of preference in a competi- tion? Securities over ships are constituted by — (1) Mortgage of the ship by the owners. It must be in the form prescribed by the Act, and registered in the register book of 1 17 and 18 Vict., u. 104, ? 37. =* 17 and 18 Vict., o. 104, g§ 2 lb., i 55, et seq. 70-81. Digitized by Microsoft® MOVEABLE EEAL BIGHTS. 251 the port at which the ship is registered, a memorandum heing made by the registrar on the mortgage of the date and hour of the entry. Mortgages have priority according to the date of their record in the register book.^ (2) Mortgage of the ship when in a foreign port by an agent of the owners. To entitle an agent to grant such securities, the registered owner must first have obtained from the registrar a certificate for that purpose, called a certificate of mortgage, and before such a certificate is granted, the owner must make a state- ment (1) of the name of the person by whom the jDower is to be exercised; (2) the amount of charge to be created, if that is intended to be limited; (3) the place where the power is to be exercised ; and (4) the endurance of the power in point of time ; and the statement of these particulars is entered in the register book of the port where the vessel is registered. A record of every mortgage made under the certificate is indorsed thereon by a registrar or British Consular OfScer ; and every mortgage which is so registered on the certificate has priority over all mortgages of the same ship or share created subsequently to the date of the entry of the certificate in the register book ; and if there be more mortgages than one so indorsed, the respective mortgagees claim- ing thereunder are, notwithstanding any express, implied, or con- structive notice, ranked one before the other according to the date at which a record of each instrument is indorsed on the certificate, and not according to the date of the instrument creating the mortgage.^ (3) Bond of bottomry, granted by the owner for money lent to fit up and supply the ship with necessaries before a voyage, or by the master for repairs and furnishings in a foreign port. It is a condition of such bonds that if the ship be lost, the lender shall lose his money ; but that if the vessel safely reach her port of destination, the money lent shall be repaid ^with a certain profit for interest and risk, called marine interest. The security is over the ship with her appurtenances, and when the bond is granted by the owners themselves, they are personally bound ; ^ but when the master borrows money at marine interest, and pledges the ship for repayment, the owners are not personally responsible.'' 1 17 and 18 Vict., c. 104, §§ 66, 3 Bell's Prin., 452. 67, 69. * Cochrane, 14th Feb. 1854, 16 2 lb., 2§ 76-80. D., 548. Digitized by Microsoft® 252 MOVEABLE REAL EIGHTS. Bonds of bottomry granted by tbe owner have priority according to their date ; but in a competition among the holders of such bonds granted by the master, the last bottomry creditor in point of date has the preference, because salvam fecit totixis pignoris 529. What is a bond of respondentia ? A bond of respondentia is an obligation for the repayment of money lent to the owners of the cargo at home, or to the master for repairs and furnishings in a foreign port ; the borrower is per- sonally bound, and also the cargo, but the security does not ex- tend to the ship, and the lender, in consideration of marine inter- est, runs the risk of ^the loss of his money by the loss of the cargo.^ 530. What is the charter party ? The charter party is a contract by which the owner, or the ship's husband if in a home port, or the master if in a foreign port, freights the vessel for a defined voyage for a certain sum, engaging that she shall be sea-worthy, properly equipped and manned, and ready at a specified port and time to receive the cargo ; that she shall sail at the day appointed, wind and weather permitting ; and that the goods shall be safely delivered at the port of destination, the dangers of the seas, &c., being excepted. On the other hand, the freighter engages to furnish the cargo in due time, and pay the freight. XIII. FACTORY. 531. What is the nature of the powers which a general factory confers, and what acts require special authority? A general factory confers only powers of general management, and authority to perform such acts of ordinary administration as are necessary for the preservation of the estate.* Special powers are necessary : — (1) To sell, feu, or purchase heritage ; or to sell moveables of great value.* 1 Bell's Prin., 456. 3 Menziea Leot., 454 (472). 2 lb., 452, et seq. * Ersk., 3, 3, 39. Digitized by Microsoft® FACTORY. 253 (2) To enter the constituent as heir to a succession, so as to incur risk by representation. A general factory was formerly held sufficient to serve the granter heir to a lucrative succession ;^ but the Service of Heirs Act requires that the petition for service shall be subscribed by the petitioner, " or by a mandatory specially authorised for the purpose."^ A general commission is sufficient for the entry of the granter as heir to a lucrative succession by a precept of dare constat. (3) To compromise the principal's claims.^ (4) To submit them to arbitration.' (5) To borrow money on the security of the constituent's estate, unless where the loan is necessary for the preservation of the pro- perty.* (6) To delegate the factory.* (7) To enter vassals and to grant leases. (8) The competency of summary diligence against the consti- tuent on a bond granted by the factor is questionable, if the factory does not contain a consent to the registration of such bonds, for the purpose of execution against the constituent himself. 532. How may a factory be terminated ? (1) By a direct recall.^ (2) By granting a factory to another, which is an implied re- vocation of the first.^ (3) By the factor's renunciation.^ (4) By the death of the constituent, or by the death of any one of them where there are several.'" But the factor's acts are valid until he receives authentic notice of his constituent's death.''^ (5) By the bankruptcy of the constituent.'^ (6) It is thought that ih.6 permanent insanity of the constituent 1 MoUe, 13th' Dec. 1811, F.C. 7 Walker, 13th Dee. 1837, 16 S., 2 10 and 11 Vict., c. 47, § 4. 217. 3 Honingworth, 21st Jan. 1813, 8 Ersk., 3, 3, 40. F.C; Bridges, 22d Nov. 1831, 10 S., 9 Ersk., ib. 43. »» Stewart, 29th Feb. 1832, 10 S. * Livingston, 23d Feb. 1830, 8 S., 392 ; rev. 7th April 1884, 7 W. and 594. S., 211. 5 Thorason, 23d Dec. 1842, 5 D., ^ Campbell, 7th Deo, 1826, 5 S., 379. 86, afif. 3 "W. and S., 384. « Dempster, 18th Feb. 1836, 14 '2 Menzies Lect., 456 (474). S., 521. Digitized by Microsoft® 254 FACTORY. operates as a recall ;^ but temporary insanity does not have that eifect.2 (7) By the death of the factor, or where there are several, by the death(a) of any one of them, if no quorum is named. "(5) 533. In what cases does a factor incur personal responsibility to third parties ? (1) He will he personally liable for acts not done nomine fac- toris ; or (2) When he acts ultra vires.^ 534. Where the factory contains a power of delegation, is the principal factor relieved from responsibility for the person whom he appoints ? Yes ; if he had reasonable grounds for believing the sub-factor to be solvent at the time of his appointment." 535. What degree of diligence is incumbent on the factor? (1) Where he acts without recompense, he is liable only for actual intromissions, or for such dihgence as he employs in his own affairs. (2) Where he exceeds his powers, he will be liable for the consequences to his constituent ; and if the acts done beyond his mandate be such as to bind his constituent, he will be directly bound to indemnify the latter. (3) Where he is remunerated, he is bound to act with the care and discretion of a man of ordinary prudence, and culpa levis will ground responsibility.^ 1 Pollock, lOth Dec. 1811, F.C. * Ersk., 3, 3, 35 ; Ainslie, M., 2 Wink, 8lli March 1849, 11 D., 4065; Crawford, M., 4066. 995. 5 Bell's Prin., 223. 3 Ersk., 3, 3, 40. 6 Erst., 3, 3_ 35 and 87 ; Bell's Prin., 234. (a) Or resignation. (6) Or if they are not appointed to act in succession. Digitized by Microsoft® 255 PART III.— HERITABLE EIGHTS. I. THE FEUDAL SYSTEM CASUALTIES OE SUPEEIOEITY, ETC. 536. Give an outline of the origin and nature of the Feudal System. A resemblance of the Feudal System is to be found in particular stages of the history of Greece and Rome, and in the customs of various nations and races both in the Old and in the New World ; but the system, in its mature form, may be said to be the result of the state of society at the time of the fall of the Roman Em- pire, and the events which then took place. The several barbaric tribes who overthrew the empire, having cantoned themselves out into the countries which they had seized, continued arranged under their own officers, each of whom had a separate territory allotted to him, on which he could retain and support his immediate fol- lowers, the largest allotment being assigned to the principal leader ; and in this way all were bound in allegiance, both to their immediate superiors and to their chief, and all were in readiness to be called out to arms whenever their services were required. The policy of this system, says Mr Erskine, was so universally approved in that military age, that, even after an end was put to the reign of the Lombards in Italy, it was adopted by Charles the Great, and by most of the princes of Europe.^ The essential ele- ments of the feudal system were thus Land — with the protection of the vassal on the one hand, and, on the other, fidelity and military service to the superior of whom the grant was held ; and although the tenure has now been adapted, perhaps as far as it is capable of being so, to the wants of civilized times, the funda- ' Ersk., 2, 3, 3 ; Eoss Lect., ii, 23, et seg.; Menzies Lect., 482 (502) et seg. Digitized by Microsoft® 256 THE FEUDAL SYSTEM. mental principle still remains, that the property of land is held either directly and immediately under the Crown, as paramount superior, or indirectly under a Crown vassal, or a sub-vassal in a more subordinate degree. 537. Name the three great stages into which the progress of feus is divided by Sir Thomas Craig in his Jus Feudale, with their respective periods and characteris- tics. (1) The infancy of feus ; /when they were precarious or revoc- able at the granter's pleasure, which was their primary character- istic. (2) The childhood of feus ; when they were for life, which pre- vailed from the middle of the seventh till the end of the ninth century. (3) The manhood of feus ; when they become hereditary. Un- der Charlemagne feus were made descendible to children and grandchildren in the direct line ; and by the Emperor Conrad, in 1026, they were made transmissible to collaterals. ' 538. What are the date and contents of the Styles of Mar- culfus ; and what was the first institute of the feudal law ; by whom was it compiled, and chiefly from what source ? (1) The Styles of Marculfus, who was a French monk, were published about the year 660, and they consist of two books, the first containing Preceptiones Regales, i.e., royal precepts or grants ; and the second, Ghartce Pagenses, i.e., charters belonging to the country, or writings of country affairs.^ (2) The first institute of the feudal law was the Consuetudines 1 Craig, 1, 4, 5, et seq.; Boss Leot., lazy and detesting trouble and per- il, 33, et seq.; Menzies Lect., 489 sonal discomfort ; the receipt of (509). A writer in tlie Journal of money for feu-holding was decrepi- Jurisprudence, in an able and in- tude; and the legislative abolition of etructive article on " Feudalism " ward-holding, or holding on condi- (ii, 220), somewhat facetiously com- tion of military service, was death. pletes Sir Thomas' metaphor thus : — ^ Ross Leot., ii, 72; Menzies " The barter of warlike for agricul- Lect., 486 (506). tural services was the act of senility. Digitized by Microsoft® THE FEUDAL SYSTEM. 267 Feudorum, or the Book of the Feus, compiled in the twelfth cen- tury, chiefly from the customs of the Lombards.-' 539. "What is the order in which the different authorities on feudal questions are resorted to ? (1) Statutory law; (2) common law; (3) the laws and cus- toms of other nations observing feudal institutions ; and (4) the Consuetudines Feudmum} 540. When was the feudal system introduced into Scotland ; and what cause principally led to its extension ? It is generally supposed that the feudal system was introduced into Scotland in the eleventh century, and subsequent to the Nor- man Conquest. The cause which principally led to the extension of the system was the insecurity of the proprietors of allodial pro- perty, who, while they had the absolute power of disposal, and re- cognised no superior, were unable to defend the possession of their property against hostile attacks in an age of violence, and were consequently induced, for their own protection, to resign their estates into the hands of the powerful barons, receiving back the lands in the form of a feudal grant. Allodial proprietors, also, whose title-deeds had been lost by the ravages of war, or con- sumed by fire, resigned their lands into the hands of the sovereign, and obtained a feudal recognition of their title ; and a large ex- tent of land which had been bestowed on the church was feued out to vassals for an annual payment, or for military services.^ 541. What classes of property are excepted from the opera- tion of the feudal system in Scotland ? (1) Eights reserved to the Crown out of lands feued to sub- jects ; as gold and silver mines, forestry, a,nd salmon fishings. (2) The patrimonial estate of the sovereign — lands, castles, palaces, &c. (3) The principality of Scotland belonging to the sovereign's eldest son, as Prince and Steward of Scotland. (4) The Crown's superiority of lands belonging to subjects in property. ' Koss Lect., ii, 38 ; Menzies Lect., ' Edss Lect., ii, 16, and 56, etseq.; 490 (510). Duff's Feud. Conv., 41, 43 ; Menzies * Menzies Lect., 494 (514). Lect., 490 (510). K Digitized by Microsoft® 258 THE FEUDAL SYSTEM. j(5) Church property — churches, churchyards, manses and glebes. (6) Lands in Orkney and Shetland held by udal tenure. . I 542. What was the ancient method of constituting the feu- dal relation, and what were the progressive steps lead- ing to the modern form of investiture ? (1) The feudal relation was anciently constituted by the su- perior in person delivering possession to the vassal upon the ground of the feu, in presence of the pares curiae, which was called the proper investiture. Although writing was not necessary, sometimes the superior, after the ceremony, delivered to the vas- sal a hreve testatum, attesting the fact of delivery. (2) As the personal attendance of superiors was not always convenient, the practice was introduced of their executing a man- date or precept before possession was given, directing their com- missioner or bailie to invest the vassal ; and the investiture was completed by the deKvery of possession to him in virtue of the precept. But the precept was no evidence of the right, unless the bailie's seal was appended to it, in token of possession having been given, or unless the bailie gave a separate certificate attest- ing the fact of delivery. This was termed the improper investi- ture.^ (3) The next step was the charter, with a separate precept, and afterwards the charter and precept combined, followed by symbolical delivery, which was attested by the instrument of sa- sine. (4) The institution of the registers for publication was the next advance towards the modern form of investiture, one of its essential elements having been thereby introduced. Thus the re- quisites of investiture at this stage were, (1) the grant; (2) sym- bolical delivei-y on the ground ; (3) evidence of delivery by the instrument of sasine ; and (4) publication of the right by regis- tration. (5) Symbolical delivery was abolished by the Infeftment Act of 1845. (6) By the Titles to Land Act 1858, the sasine was dispensed ' Ersk., 2, 3, 8 ; Menzies Lect., = Boss Lect., ii, 120 ; Menziee 496 (516). Lect., 508 (528). Digitized by Microsoft® THE FEUDAL SYSTEM. 259 ■ with, and registration of the charter introduced as an equivalent ; so that the requisites of a complete investiture now are, (1) the grant ; and (2) puhlication of it hy registration. 543. Enumerate the feudal holdings, and mention which of them still subsist ? There were originally five kinds of holding, viz., (1) ward- holding ;(a) (2) feu ; (3) blench ; (4) burgage ; and (5) mortifica- tion. Of these, feu, blench, and burgage alone subsist. (1) Ward-holding, the ancient military holding, was once the prevailing tenure of the feudal law, so that when no holding was expressed, ward was presumed. The reddendo, or fixed return, ex- pressed in the grant, was servitia solita et consueta, being military and personal services. (6) This holding was abolished by the Aet 20 G-eo. II, c. 50. (2) Feu-holding, now the prevalent tenure, is where lands or other feudal property are granted in perpetuity for a reddendo of money, grain, or agricultural services. (3) Blench -holding, originally the holding expressed in grants bestowed ob prceclara in rempublicain inerita etpartam hello gloriam, is where the reddendo is nominal or illusory, as a pair of gilt spurs, a pound of wax, or a penny, si petatur tantum. In other respects it resembles feu-holding. (4) Burgage is a species of military holding, peculiar to royal burghs. The sovereign is superior, each proprietor holding directly of the Crown for the service of watching and warding, the magis- trates being the Crown's commissioners in renewing investitures. (5) Mortification was a kind of religious holding, chiefly used in making grants of land to the church, or in the endowing of hos- pitals, &c., the reddendo being preces et lacrymce. This tenure was abolished at the Eeformation, and mortified lands were transferred to the Crown.' ' Ersk., 2, 4, 1, et seg.; Bell's Prin., 680; Menzies Lect., 501 (521). (o) Also soocage. See note (6), below. (b) As the military service incumbent on the vassal in -wardholding in- terfered with agriculture, landholders, to remedy the inconvenience, made grants of small parcels of land on condition that the grantees should culti- vate and sow the granter's lands retained in his own possession. The hold- ing in these grants was called Socoage ; Ersk., 1, 1, 35, and 2, i, 5. r2 Digitized by Microsoft® 260 THE FEUDAL SYSTEM. 544. Give a definition of tlie word " feu," and state tlie sup- posed origin of the term ? A feu is a grant of lands, or other property connected with land, in perpetuity, on condition of the grantee rendering an an- nual or periodical return of some description to the granter, the radical right remaining with the latter. The origin of the term is disputed, some deriving it from fides, and others tracing it to the Norse, "fee" a reward, and " odh," property. Sir Thomas Craig gives a derivation which appears to have, at least, the merit of be- ing the most fanciful, namely, the initial letters of the words com- posing the oath of fidelity, Fidelis ero ubique domino vera meo, F. e. u. d. w. m} 545. What is the meaning of the terms dominium directum, and dominium utile ? The dominium directum is the superiority, or the radical right which remains with the superior after the constitution of a feudal grant. The dominium utile is the property, or the vassal's estate. 546. Of what does the superior's estate, or dominium directum, consist ? The superior's estate consists of (1) the radical right to the lands ; in virtue of which, on certain events, he may re-acquire the full right of property. (2) The feu or blench duties, or lawful services stipulated for in the charter. (3) The casualties of superiority .^ 547. Of what does the vassal's estate, or dominium utile con- sist? The vassal's estate consists of the right of property and exclu- sive use of the lands, and the pertinents, whether above or below the surface, with the absolute power of disposal, and all the legal privileges belonging to the lands ; but the vassal acquires no right to the regalia, unless expressly granted to him. ' Ersk., 2, 3, 7 ; Duff'a Feud. ' BeU's Prin., 690. Conv., 45; Menzies Leci, 499 (519); Craig, 1, 9, 2. Digitized by Microsoft® THE FEUDAL SYSTEM. 261 548. Enumerate the casualties of superiority ; and mention which of them still subsist. (1) Ward ; by which the superior was entitled to the full rent of the lands after the vassal's death, during the heir's minority ; because the heir in that period was incapable of performing mili- tary service. It was sometimes restricted by the investiture to a certain sum, to be paid annually by the minor heir, in place of the full rents. This was called taxed ward, and when not restricted it was termed siinple ward. (2) Eecognition ; which was the forfeiture of the lands to the superior in the event of the vassal alienating more than the half of them to a stranger, without the superior's consent. (3) MaiTiage ; which arose from the superior's right to choose a wife for his vassal and entitled him to a sum equal to a suitable tocher, called the single avail of marriage, if the vassal accepted of the superior's choice, or married without his interference. If the vassal rejected the wife selected for him by the superior, the latter was entitled to double the amount of a suitable tocher, called the double avail. (4) Disclamation ; by which a vassal forfeited his whole feu to the superior, if he disowned or disclaimed him as to any part of it. (5) Purpresture ; which involved a forfeiture of the whole feu, and was incurred by the vassal encroaching upon any part of the superior's property. The first three casualties above enumerated were abolished by 20 Geo. II, c. 60, and the fourth and fifth have been long in des- uetude. The following are the subsisting casualties : — (1) Irritancy of the feu 6b non soluturn canonem ; which in- volves a tinsel or forfeiture of the feu by the vassal neglecting to pay the feu-duties for two full years. Before the Act 1 597, c. 250, it was not unusual to introduce this irritancy into the title, but by that statute it was made a condition of all feus, it being thereby declared that, if the feu-duty remain unpaid for two full years, the vassal should amit and tyne his feu in the same manner as if there had been an irritant clause in the right. (2) Non-entry ; which arises from the superior's right to have a vassal feudally vested, and is incurred through the heir's neglect- ing to renew the investiture after his ancestor's death. By an- cient usages the feu was forfeited to the superior if the heir ne- Digitized by Microsoft® 262 THE FEUDAL SYSTEM. glected for a year and day to enter after the vassal's death. The non-entry duties exigible by modern practice are, (1) before cita- tion in an action of declarator of non-entry, the feu-duties in feu- holdings ; the retoured duties in blench-holdings ; and one per cent, of the valued rent in Crown-holdings changed from ward to blench ; and (2) after citation, the full rents, whatever be the na- ture of the holding. But if the vassal can plead a reasonable ex- cuse for the delay, he will not be subjected in payment of the full rents, which are usually awarded only from the date of the decree. (3) Eelief; which is the consideration or price paid by the vassal's heir to the superior for granting a renewal of the investi- ture, on the death of the ancestor, being a year's feu or blench duty, in addition to the duty payable for the year. (4) Composition ; which is the consideration paid by a singu- lar successor for an entry, being a year's rent, under deduction (1) of the feu-duty and annual burdens imposed with the superior's consent; (2) of a reasonable allowance for annual repairs; (3) of public burdens ; and (4) one-fifth for teind, when the superior is not proprietor of the teinds.(c) (5) Escheat ; which is a forfeiture of the vassal's liferent of the feu, and arises (1) by sentence of death and escape; and (2) by the vassal's remaining a year and day at the horn unrelaxed after denunciation for a crime. The liferent falls to the superior, except where the denunciation proceeds upon treason or rebellion, in which case the fee, as well as the liferent, is forfeited to the Crown.^(c?) ' Ersk., 2, 5, 5, eisey.; Ersk. Prin., seq.; Menzies Lect., 503 (523), et 2, 5, 2, et sec[.; Bell's Prin., VOl, et seq. [c) In reference to the casualties of relief and composition, the case of Dixon, 3d Marcli 1858, 20 D., 721, may be mentioned. Here a property was bought for M. price, either to be converted into a feu-duty or partly to be paid, the transaction to take the shape of a feu-contract, but to be dealt with on the footing of a purchase. Held that the entry of heirs and singular successors must be taxed at a nominal sum, but the purchaser to relieve the seller of the feu-duty and other prestations exigible from him by his superior. (d) This escheat is called Liferent, to distinguish it from single escheat, which applies to moYeables. The incurring of this forfeiture does not affect the vassal's right to the fee or his power of disposing of it, in so far as ho can do so without prejudice to the rights of those who may have an interest in his single or liferent escheat ; Macrae, 22d Nov. 1836, 15 D., 54 ; aff. on appeal, M'L. and Bob., 645. Digitized by Microsoft® THE FEUDAL SYSTEM. 263 549. Is there any distinction betwixt the legal and a con- ventional irritancy ob non solutum canonem, "with re- spect to the vassal's right of purgation ? It is a general rule that irritancies are purgeable before decree of declarator is extracted ;^ but in the case of a strict conventional irritancy in a feu-charter, purgation may not be allowed at the bar, without at least some justification or colourable excuse for the de- lay.^(e) 550. Where a superior insists on forfeiture of the feu, may he also claim the arrears of feu-duty ? No ; because, by decree of declarator of tinsel, the feu is anni- hilated, and the ground of the claim for arrears removed. '(/) 551. In what cases are the lands in non-entry? (1) Where the vassal's heir neglects to renew the investiga- ture after his ancestor's death. (jr) ' More's Notes, 80, 206 ; Bell's = M'Vioar, M., 15095 ; Mags, of Prin., 701. Edin., 16th May 1834, 12 S., 593. 2 Ersk., 2, 5, 27 ; Menzies Leot., 504 (524). (e) A decree obtained under the statute alone (the opportunity of purg- ing at the bar having been neglected) cannot afterwards be reduced on tender of payment ; Ballenden, M., 7252. (/) He can claim, however, a composition, previously incurred, for an entry though the charter had not been taken out ; Mags, of Edinburgh, supra, note 3. (j) It does not seem to be settled whether or not lands held by heirs- portioners fall partially into non-entry on the death of one or more of them ; but on the principle that the superior is entitled to have a vassal entered, and the analogous case oi pro indiviso proprietors (Scott, 18th July 1868, 1 M'P., 1164), it should rather seem that they do. By 6 Geo. IV, c. 86, the trustees for public buildings were empowered to purchase property in Edinburgh for the accommodation of the courts, and a statutory form of conveyance was appointed, which, being registered, should be " a complete bar to all other rights, titles, trusts, and interests and in- cumbrances to, in, or upon the same whatsoever." Held that such a, con- veyance did not extinguish the estate of the superior where the party grant- ing the conveyance had right only to the dominium utile, but that it left the dominium directum, with all its profits and casualties, entire, and therefore that on the death of the vassal the subjects were in non-entry ; Mags, of Edinburgh, 8th June 1860, 22 D., 1160. By the 13 Vict., c. 13, it is provided (? 1) " that wherever heritable pro- Digitized by Microsoft® 264 THE FEUDAL SYSTEM. (2) Where the heir's service and infeftment are reduced. (3) The lands continue in non-entry where, after the vassal's death, the heir or a singular successor has obtained a precept or charter (h) from the superior, hut delays to take infeftment on it, or to record it in the Eegister of Sasines. (4) It is said that the non-entry duties are exigible where the vassal has resigned in favorem, but the new vassal does not take infeftment on the charter.' 552. In what circumstances is non-entry excluded? (1) During the life of the last entered vassal, although he ' Ersk., 2, 5, 30 ; 2, 7, 24 ; Bell's Prin., 705. perty, consisting of lands or houses in Scotland, has been or may be here- after acquired by any congregation or society or body of men associated for religious purposes, or for the promotion of education," as a place of worship, manse, school, schoolmaster's house, college, seminary, or hall for the trans- action of the business of such congregation or society, &c. ; and where the conyeyance or lease is taken to the managers, &c., of such congregation, &c., or trustees for the time being, such title shall not only vest the parties named therein in the lands, &o., thereby conveyed or leased, but shall, after their death or resignation, eifectually vest their successors in oiEce for the time being in such lands, &c., " and that without any transference, assign- ment, conveyance, or other transmission, or renewal of the investiture what- soever." By § 2 it is provided that, where not otherwise arranged, " it shall be lawful for the superior, at the death of the existing vassal in such heri- table property, and at the expiration of every period of twenty-five years thereafter, so long as such heritable property shall belong to or be held for behoof of such congregation," &o., to demand " a sum corresponding to the casualty or composition, if any such shall in the circumstances be due, which would have been payable upon the entry of a singular successor therein," and that in full of all casualties of entry and composition. If the composi- tion is not taxed, and the property is not situated in or in the immediate vicinity of a town or village, the casualty or composition payable therefor is held to be the annualrent or value of the land, if let as an agricultural sub- ject. By the Titles to Land (Scotland) Act, 1860, § 32, the provisions nf the Act above referred to are extended " to all trusts for the maintenance, support, or endowment of ministers of religion, missionaries, or school- masters, or for the maintenance of the fabric " of places of worship, manses, schools, &c., and declared to apply to the Established and all other Presby- terian churches in Scotland. (A) Or writ. Digitized by Microsoft® THE FEUDAL SYSTEM. 265 has been divested of the dominium utile by a feudalised convey- ance. (2) Where the lands are subject to terce, non-entry is excluded after the husband's death to the extent of a third during the life of the widow ; and where subject to courtesy, it is excluded after the wife's death as to the whole during the husband's life. (3) By an infeftment in conjunct fee and liferent, granted by a husband to his wife, and confirmed by the superior, non -entry is excluded until the death of the survivor. (4) Where the lands have been conveyed by the fiar under burden of a reserved liferent, non-entry is excluded during his life.(i) (6) Non-entry duties are not exigible when the superior is in non-entry, or has refused to give an entry. (6) It is doubtful whether non-entry is excluded by a sub-feu confirmed by the superior. ^ II. ORIGINAL CHARTER. 553. Enumerate the clauses of the charter ? (1) The narrative, containing the names of the granter and grantee, and cause of granting ; (2) the dispositive clause, con- taining the words of conveyance, the destination to heirs, the description of the subjects, and the reservations, burdens and con- ditions ; (3) the term of entry ; (4) the tenendas ; (6) the red- dendo ; (6) assignation of writs ; (A) (7) assignation of rents ; (8) obligation to free and relieve the grantee of (V) public burdens ; (9) clause of warrandice ; (10) clause of registration ; (11) precept of sasine (now unnecessary) ; (12) testing clause.^ ' Ersk., 2, 5, 44, 45; Duff's Feud. ^ Jur. St., i, 18. Conv., 477. (j) In this case, the fiar being assumed to he alive, the lands are not in non-entry. (S) But only to the effect of maintaining and defending the Yassal's right. (Z) This obligation should include also feu-duties and casualties payable to the granter's superiors. Note — In the styles given of a feu-charter and .of a feu-contract (Jur. St., i, 19 and 45) the statutory form has been erro- neously used ; it should be, " of sdl feu-duties and casualties payable to my superiors now and in all time coming." Digitized by Microsoft® 266 ORIGINAL CHARTER. 554. What is the ruling clause of a conveyance of heritage, and what is essential in it ?{to) The dispositive is the ruling clause ; it must contain words of conveyance de presenti, and the word " dispone " appears to he in- dispensahle . ^(m) 555. What is the effect of the omission of the words " heirs and assignees " in the destination of the charter? Anciently fees were personal, unless heirs were expressed, and inalienahle without the superior's consent, hut they are now here- ditary and transmissible without express mention of heirs and as- signees.^ 556. Where the real proprietor executes only as consenter a charter by one who had no right to the lands, Is the deed an effectual conveyance ? State the reason. It has been held that the consent of the proprietor to a dispo- sition a non domino implies a conveyance of the property, on the principle that such consent can have no other intention or mean- ing ; ^ but this doctrine is doubted by Baron Hume ; ■* [p] and, in * Ogilvie, M., 3340, aff. 1 Ross deeds shall be held to te valid which Lead. Oas.,(«) 1, el seq.io) The bill clearly express an act of conveyance which was introduced into Parlia- by the granter, and whether by ment by the Lord Advocate Baillie, words of conveyance de presenti, or referred to in note 2, p. 99, contains mortis causa, or by words of be- the following clause, sect. 26 : — " No quest." deed by which lands are conveyed ' ^ Duff's Feud. Conv., 61. shall be held to be invalid on the ^ Buchan, M., 6528 ; Mounsey, ground of the want of the word ' dis- 29th Nov. 1808 ; Hume, 237. pone,' or other word importing a * Hume, 237. conveyance de presenti; and all such (m) This question and answer altered from original. {n) Land Eights, 13, et seq. (o) See also Galloway, 12th Jan. 1802, F.C., and Lord Meadowbank's opinion, reported 3d March 1815, Hamilton, F.C. — " If there is a word in Scots law language which is technical it is dispone," &c. ; also Crawford, 14th Jan. 1774, and Henderson, 10th June 1795, F.C. [p) The doctrine is expressly laid down by Stair, 2, 11, 7, who refers to Craig ; and Hume, in the passage referred to, concludes — " Probably, how- ever, the present case, joined to Lord Stair's opinion, and that also of Kil- Digitized by Microsoft® ORIGINAL CHARTER. 267 any view, it would be highly improper to take a charter in that form, because there is no implied warrandice against a consenter, and consequently he is not barred from insisting in rights which may subsequently emerge in his favour, although injurious to the grantee.^ 557. What is the effect of a consent by an heritable creditor in a conveyance by the true owner ? Consent by an heritable creditor imports only non repugnantia, and that he will not, on the ground of the debt, compete with the purchaser, but allow him a preference to the consenter's rights, though otherwise they might be preferable to those acquired by the purchaser. But it does not imply a conveyance (r) of the creditor's debt to the purchaser, or a right to use it in support of his own title. 2 558. A married woman, who had consented to her husband's disposition of lands to a purchaser, subsequently ac- quired from a third party a preferable right of life- rent, secured out of the same lands upon which she was infeft before the disponee ; Is her right preferable to the purchaser's ? The wife's liferent is preferable ; because being a consenter she was not the author of the pu'rchaser's right ; and consequently the rule jus superveniens auctori accrescit successori, is not appli- cable.^ 559. Where the disponer alleges, after delivery of the char- ter, that the price has not been paid, How is the alle- gation to be proved ? It can be proved only by the writ or oath of the disponee ; ^ 1 Stuart, M., 7762 ; Menzies Lect., = Forbes, M., 6524 ; Stuart, M., 513 (531). 7762. ' Buchan, M., 6529. * Gordon, llth June 1833, 11 S., 696. kerran, who transiently delivers the same law (p. 279, No. 2), ought to lay this question to rest." (r) Nor an obligation to grant a conveyance. Digitized by Microsoft® 268 ORIGINAL CHAKTEE. but if the disponee admits that the price was not paid at the time, he must prove actual payment.^ 560. On the failure of heirs, does the estate revert to the superior ? On the failure of heirs the estate falls to the Crown as ultimus hceres ; the superior, by completion of the vassal's title, being for ever divested of the grant, unless it contains a clause of return.^ 561. What are the provisions of the Titles to Land Act with respect to the description of the lands in convey- ances ? (1) Where lands have been particularly described in any prior conveyance, or other writ recorded in the Eegister of Sasines, it is unnecessary in subsequent conveyances to repeat the particular description, and it is sufficient to specify (1) the leading name or names, or other short distinctive description, of the lands; (2) the name of the county and parish, or supposed parish ; and (3) to refer to the particular description contained in the prior recorded conveyance, specifying the parties (s) to the deed, its date and re- gistration ; and such reference is equivalent to the fuU insertion of the particular description ; and in any subsequent conveyance it is sufficient to use such leading name or names, or short distinc- tive description, with the name of the county and parish (i) and to make reference to the conveyance in which such leading name or names [u) have been so specified, without again referring to the several conveyances in which the lands are particularly de- scribed.^(a;) 1 Hotson, 7th June 1831, 9 S., = Menzies Lect., 518 (535). 685. ^ 21 and 22 Vict., c. 76, ? 15. (s) The schedule (L) referred to in the Act specifies only the granter of the deed. {t) Or supposed parish. (m) Or short distinctive description. [x) These provisions apply to deeds executed prior to 1st October 1860, when the Titles to Land (Scotland) Act, 1860, came into operation, and which (§ 34) repealed J 16 of the Act of 1858, and enacted " That where any lands held or not held burgage have been particularly described in any prior conveyance, discharge, or other deed or instrument, duly recorded in the appropriate register of sasines, it shall not be necessary in any subse- Digitized by Microsoft® ORIGINAL CHARTER. 269 Where it is diiJficult to determine what are the leading names, it has heen recommended to insert the whole names, and to declare that the conveyance is intended to comprehend the whole lands contained in the recorded writ referred to. (2) Where several lands are comprehended in one conveyance in favour of the same person, it is competent to insert a clause in the conveyance, declaring that the whole lands conveyed and therein particularly described shall be designed and known in future by one general name, to be therein specified ; and on the conveyance being recorded in the Eegister of Sasines, it is compe- tent, in subsequent conveyances or other writs, to use the general name, and a conveyance of the several lands under the general name is as effectual in all respects as if the conveyance contained a particular description of each of the several lands comprehended under the general name ; provided that reference be made to a prior recorded conveyance, or instrument containing the particular description, and the clause pointing out the general name ; and it is competent to comprehend certain lands under one general name, and certain other lands under another general name, it being clearly specified what lands are comprehended under each general name ; and it is provided that the clause of reference shall be in terms of Schedule (L), No. 2, annexed to the Act.^ It is to be observed, however, that although it is declared by the Act to be competent to use the general name in subsequent 1 21 and 22 Vict., c. 76, § 16. qnent conveyance," &c., " containing or referring to the whole or any part of such lands, to repeat the particular description of the lands at length, but it shall be sufficient to specify the name of the county ; and where the lands are held burgage, the name of the burgh and county in which they are situated," and to refer to the particular description contained in the prior conveyance, &c., " in, or as nearly as may be in, the manner set forth in No. 1 of schedule (H) ;" that is, by reference to copy of Ordnance map an- nexed, general name of lands, street, and number of house, county, or burgh and county, &c., and specifying the deed or instrument in which the lands are described, and the granter thereof, with its date and date of recording, and register where recorded ; which specification and reference shall be held equivalent to the full " insertion of the particular description contained in such prior conveyance,'' &c. Where only part of the lands in the deed re- ferred to is conveyed, such part must be described, and then referred to as part of the whole lands as above. Digitized by Microsoft® 270 ORIGINAL CHARTEE. conveyances, the schedule directs the insertion of the leadmg name or names, or other short distinctive description, so that it might he douhted whether the insertion of the general name, without a specification of the leading name or names, would he sufficient, unless the words of the enactment were held to over- rule the direction in the schedule. (y) 662. Was it necessary in all cases, before the Titles to Land Act came into operation, to insert a particular descrip- tion of the lands in the charter, in order directly to obtain a real right under it ? In the general case it was necessary to insert a particular de- scription ; but it was not requisite in conveyances of baronies or old estates which had not been subdivided, in which cases the generalname was sufficient. A real right could be completed on a general conveyance of all lands belonging to the granter, if it contained a precept of sasine, by producing to the notary the granter's infeftments.^(2;) 563. Is it necessary to name the parish and county in which the lands are situated in describing them in a convey- ance? It is not necessary where the full description is given ;(a) but where the lands are described by their leading names, and by re- ference to a prior recorded writ, in terms of the provisions of the Titles to Land Act, the name of the parish and county is indis- pensable.(6) 564. What is a cliarta extensa ; and how may it be consti- tuted? ' Duffs Feud. Conv., 62 ; Menzies Lect., 620 (541) ; see Ans. 627. (y) Or unless the words "general" in the Act and "leading" in the schedule are to be held as convertihle, as neither of them occurs in both. («) Provided they were read and published and stated in the instrument ; Graham's Crs., M., 49 ; Wallace, M., 6919. (b) Professor Menzies seems rather to imply that the county, though not the parish, is essential ; p. 527 (1st ed.). J) This is now regulated by the Titles to Land Act, 1 860, I 34, and schedule (H), which require only the county to be specified. Digitized by Microsoft® ORIGINAL CHAETEE. '271 Where the grant is described by its limits, it is called charta extensa, or a bounding charter.^ It may be constituted (1) by ex- press boundaries f (2) by reference to a plan (c) for the boundaries f (3) by measurement, when limited by the taxative word only ;* (4) where the lands are described as lying within a certain parish, the title is a bounding charter with respect to lands lying beyond the parish. (cZ) 565. What is the effect of a bounding charter, as regards ex- terior rights ? (1) A bounding charter precludes the grantee from acquiring a right of property in any subject lying beyond the boundaries, for although there were possession from time immemorial, it would be in the face of the title ;^(e) (2) but it does not prevent the acqui- sition of servitudes beyond the boundaries f (3) neither does it pre- 1 Ersk., 2, 6, 3. ^ Ersk., 2, 6, 3. '' Gordon, 12th Nov. 1850, 13 D., 1. « Beaumont,(/) llth July 1853, ' Menzies Lect., 523 (545). 15 D., 1337. * Duff's Fend. Conv., 63. (c) In a judicial sale ty lots, plans had been prepared marking out the boundaries, and were specially referred to in the proceedings ; the articles of roup gave a different description of the lots. Held in Court of Session and House of Lords that the boundaries shown on the plans were the march be- tween the parties ; Glassel, 5 Pat. App., 104. A proprietor had a feuing plan prepared, on which the areas of the houses were delineated as bounded by straight lines from front to back ; he afterwards built some of the houses, and inclosed the back areas with walls running in lines different from those on the plan, one of which was sold, and described in the conveyance as the area , shown on the plan, and bounded by the existing mutual walls. Held that the walls formed the boundaries; Paterson, 17th May 1851, 13 D., 997. (d) See Gordon, supra, note 2, and Hepburn, 25th Nov. 1823, 2 S., 525. (e) A piece of shore ground wholly within high-water mark, described by measurements in length and breadth on all sides, superficial contents and boundaries, was feued, " with power to gain the same off the sea." A bul- wark beyond one of the boundaries was erected, and possession for forty years of ground beyond the boundary alleged. Held that it was a bounding title, and observed, per Lord Ardmillan, " that if the measurement, taken along with the specification of certain boundaries, brings out precisely the whole of the boundaries, so as to make the space inclosed a matter of cer- tainty, then there is a bounding title ;" Stewart, 12th Jan. 1866, 4 M'P., 283. See also North British Ry. Co., 19 Dec. 1862, 1 M'P., 200. (/) This reference should be, 11th July 1843, 5 D., 1337. Digitized by Microsoft® 272 ORIGINAL CHARTER. elude a conterminous proprietor, whose boundaries are not limited, from acquiring by prescriptive possession a right of property in part of the lands comprehended in the bounding charter.' 566. Where the boundary of the grant is the sea, or the full sea, or the sea shore, or the flood mark. Has the proprie- tor a right in the shore ? Where the boundary is by the sea or the sea shore, the grant is construed to include the shore subject to the use of the puhlic.(gt) But where the boundary is by the full sea, or the flood mark, the grantee has no right to the shore. ^ 567. Heritable subjects were sold, described in the articles of roup as consisting of a certain number of acres ; What are the rights of parties on its being found that the subjects exceeded the measurement ? (1) Where the subjects are described by boundaries, as well as by measurement, the former determine the extent, the latter being merely demonstrative.'' (2) But where the measurement is limited by the word only, or if it be otherwise proved that the measurement 1 Ersk., 2, 6, 3. 582 ; Smith, 13th July 1849 ; 6 Bell's 2 Bell's Prin., 643 ; Berry, 10th App., 487. Dec. 1840, 3 D., 205 ; Mags, of St » Ure, 26th Feb. 1834, 12 S.,494; Monance, 5th March 1845, 7 D., Fleming, 12th June 1841, 3 D.,1015. [g) Foreshore. — A party who proposed to erect a pier ex adverse of his lands, after getting the consent of the Admiralty, was required by the Crown to take a conveyance of that part of the foreshore required for the purpose, which he declined to do. Whereupon the Crown brought an action to have it " declared that the soil and ground of the coasts and shores of the sea round Scotland below high-water mark of ordinary spring tides, so far as the same have not been granted to any of our subjects by charter or otherwise, belong to us jure coronm, and form part of the hereditary revenues of the Crown in Scotland." Pleaded for defender that he had acquired right to the shore (1) by prescription, as part and pertinent of his lands, under a barony title with clause of parts and pertinents ; (2) by possession by beaching and unloading vessels, collecting sea ware, erecting fences, &c. Answered for the Crown — the shore is a pertinent not of the land but of the sea, and therefore cannot be carried along with the adjoining lands by a clause of parts and pertinents. Held by Lord Jerviswoode, and acquiesced in, that the defender had acquired right to the shore ; Lord Advocate v. Maclean, 23d May 1866, Scot. Law Rep., p. 25. Digitized by Microsoft® ORIGINAL CHARTER. 273 formed an essential condition of the sale, it is taxative, and the seller will be entitled to set aside the sale, or to demand an increased price on its being found that the subject exceeded the measure- ment. ^(A) 568. What are the requisites in order to prescribe a right of property in a separate subject, under a title with parts and pertinents ? Possession (1) from time immemorial, or at least for forty years f (2) as of property not by way of servitude f (3) in virtue of the title to the principal lands ■* (4) the title being unlimited. ^(i) 569. What rights inter regalia may be granted by the Crown to a subject ? The majora regalia, such as the royal prerogative and the sove- reign's right of superiority, are uncommunicable to subjects ; but several of the minora may be acquired by individuals by express grant or by prescription, such as baronial jurisdiction, (&) forestry, (T) salmon fishings,(m.) gold and silver mines, &c.^ 570. What is necessary to give a right to trout and salmon fishings ? • Hepburn, M., 14168. * Dunbar, M., 10817 ; Scott, 15th 2 Ersk., 2, 6, 3 ; lb., 3, 7, 4. Feb. 1827, 5 S., 367. » E. of Fife's Trs., 25th Jan. 1831, ^ Ersk., 2, 6, 3. 9 S., 336. " Ersk., 2, 6, 16. (A) In Hepburn 'a case the challenge was on the ground of essential error. The sale (which was judicial) seems to have been, not by measurement, but by reference to a proven rental which did not include the whole lands, and the option given was to the purchaser either to take the restricted portion or to give up the purchase. [i) Parts and pertinents. — Property held to have been so acquired ; Lord Advocate, 31st Jan. 1865, 8 M'P., 426. See also Lord Advocate, note {g), p. 272. Opinion by majority of the whole judges that lands extending to m.ore than 800 acres, and formerly held under a separate title, had been merged in a larger estate by possession as part and pertinent during the years of prescription ; Dalrymple, 10th March 1841, 3 D., 837 ; but held in a subsequent case that that possession had not the effect of including them in an entail under the title and denomination of that larger estate ; King, 28th Feb. 1844, 6 D., 821. (h) Ersk., 1, 4, 25, and 29. (I) Ersk., 2, 6, 14. (m) Ersk., 2, 6, 15. S Digitized by Microsoft® 274 ORIGINAL CHAETER. (1) The right of trout fishing is a pertinent of the lands ex adverso, and is carried by the conveyance although not specially mentioned.' (2) Salmon fishings, being inter regalia, can be acquired only by express grant from the Crown (1) cum salmonum piscationihus f or (2) cum piscationihus tarn in mare quam in aquis dulcibus f or (3) cum piscariis, or cum piscationihus, with prescriptive possession by net and coble i"* but if that kind of possession be impossible, exercise of the right by other lawful means is sufficient ; (4) the charter of a barony is a good prescriptive title to carry salmon fishings, al- though the right is not conferred by the mere erection of lands into a barony f (5) it has been held that a conveyance from a party not in right of the fishings is a good prescriptive title if it bear witli salmon fisMngs.''[n) 571. Does right of access to the banks of a river confer on the public the right to fish for trout? Access to the banks of a public river gives any one a right to fish ;' but the establishment of a right of way along the banks of a private river does not confer on the public a right to fish, which remains with the proprietor of the lands. ^ 572. Explain the distinction betwixt positive and negative sei-vitudes; and state the methods by which such rights are constituted and made effectual against sin- gular successors ? (1) A positive servitude entitles the proprietor of the dominant tenement {i.e., the property to which the servitude is accessory), to exercise certain rights and privileges over the servient tenement 1 Bell's Prin., 747 ; Carmichael, * Ersk., supra; Bell's Prin., 1112. M., 9646 ; Macdonald, 14tli Dec. = Ersk., 2, 6, 18 ; Bell's Prin., 754. 1836, 15 S., 259. » Brown, M., 10844. " Stair, 2, 3, 69 ; Ersk., 2, 6, 15. ' Bell's Prin., 747. 5 Forbes, M., 14250. « Ferguson, 17th July 1845. (o) (n) A Crown grant of lands on the banks of a loch, " with the salmon fishings in the wester end of" the loch " eifeiring thereto," may be set up as a title to salmon fishings ex adverso of lands belonging to other proprie- tors, either by proof that the words of the grant are so comprehensive as to include such fishings, or by proof of exercise of salmon fishing for the pre- scriptive period; Eraser, 16th March 1866, 4 M'P., 596. (o) Should be 18th July 1844, 6 D., 1363. Digitized by Microsoft® ORIGINAL CHAETEK. 275 {i.e., the property burdened with the servitude), which otherwise might have been prevented. (2) A negative servitude controls the proprietor of the servient tenement in the free use of his property. (3) A positive servitude may be constituted in the charter of the dominant, or of the servient tenement, or in a separate deed ; or by prescription, followed by possession, without any grant or other written title. When constituted by grant it will be effectual against singular successors, either if it be transferred to the record, or if followed by possession. (4) A negative servitude can be constituted only by grant ; which may be in the form of a separate deed, or by insertion in the titles of either the dominant or ser- vient tenement. Such a servitude is effectual against singular successors, although not transferred to the record.^ 573. Will a reservation of "mines and minerals" embrace everything of that kind ; and what relative reservations ought the charter to contain ? A reservation of mines and minerals will not embrace building- stone,^ nor will a resei-vation of stone and coal include ironstone.^ Power ought to be reserved to search for, work, win, and carry away the minerals ; to erect engines and machinery for that pur- pose ; and to make roads, with power to take from the surface ma- terials therefor ; and there ought to be an obligation to indemnify the vassal for surface damages, as the amount should be ascertained by arbitration. Where the minerals are resei-ved, however, the superior is liable, without express stipulation, for surface damages occasioned to the vassal in the exercise of the right.''(p) ' Ersk., 2, 9, 1 ; Bell's Prin., 982, 225 ; D. of Hamilton, 29th June 991, et seq. 1841, 3 D., 1121. ' Menzies, 10th June 1818, F.C. ; = Forth and Clyde Navig. Co., aff. irth July 1822, 1 Sh. App., 21st Nov. 1848, 11 D., 122. * D. of Argyll, M., 6573. {p) In Duke of Argyll, cited, the reservation was of " all coals and coal heughs, with liberty to work the same in any part of the lands, except houses," &c. The object of the action was to have it declared that the Duke and his tacksman were entitled to work the coals without paying surface damages. The Court by their first judgment found accordingly, but by a subsequent one sustained the defences. It appears from the report that the Duke and his tacksman had been in the habit of paying damages, and it is observed by the reporter, " yet, as the bench was divided on tlis s2 Digitized by Microsoft® 276 OEIGINAL CHAKTER. 574. Explain the nature and effect of a clause of pre-emp- tion. (1) The clause of pre-emption is a stipulation that the vassal shall not have power to sell the feu, without having first made an offer of it to the superior at the price proposed hy another, and it is considered a lawful and eifectual condition, notwithstanding the Act of 20 Geo. II, o. 50, which annuls clauses in charters prohi- biting alienations without the superior's consent. '(r) (2) The sti- 1 Ei-sk., 2, 5, 28 ; Bell's Prin., 865 ; Menzies Lect., 674 (600) ; Campbell, 28tli May 1823, 2 S., 341. general point, it is by no means clear that the circumstance of usage had not an influence on the determination." In a subsequent case, a party who had agreed to take a feu of ground, under reservation of the minerals, which was a condition in all the superior's feus, insisted that " he was entitled to receive a feu-disposition which should not invert his common law right as proprietor of the surface, to insist upon the owner of the under ground strata supporting the buildings on the surface, or his paying damages in event of his failure to support them." But the Court found " that the defender is not entitled to compel the pursuer to insert in the feu-disposition a special clause of obligation in regard to the working of the reserved minerals and the liability for damages, but that the disposition should be in the same terms as the other feu rights granted by the pursuer in the immediate neighbourhood where the working of minerals is reserved ; but in respect that the pleas of " parties " at common law might be injuriously affected by the exclusion of the proposed clause, after its insertion has been demanded," found " specially that the same is without prejudice to the defender's said pleas at common law, and under reservation thereof, and of the pursuer's answers thereto; Steuart, 17th July 1857, 19 D., 1071. A party who had granted a lease of minerals with power to char and calcine, which power was exercised, subsequently feued a portion of the lands for erection of a dwelling-house, under reservation of minerals. The feuar having brought an action of damages against the mineral lessees and lessor, in consequence of the former charring and calcining heaps of ironstone at or near to the pursuer's dwelling-house ; held that the feuar's right to sue was not excluded by the reservation in his charter, nor by the terms of the mineral lease an- terior to his feu-right; M'Callum, 15th Mar. 1861, 23 D., 729. (r) The condition in question is in this and the following answers treated of on the assumption of its validity, but in Tailors of Aberdeen (H. of L., 3d Aug. 1840, 1 Rob. App., 296) the opinion of all the judges in Court of Session was given " that the validity of a clause of pre-emption still remains matter of doubt ;" and though the question has been since raised, it does not seem to have been decided. See Lumsden, 6th Feb. 1843, and Strath- allan, 4th July 1843, 5 D., 501 and 1318. Digitized by Microsoft® ORIGINAL CHARTER. 277 pulation will be effectual against singular successors, as long as the title continues personal ; because disponees founding upon the personal title must adopt all its conditions.' (3) It will qualify the feudal right, and be binding on singular successors, without a clause of irritancy, provided it enter the record.^ (4) Where the clause has not been transferred to the record it will not affect sin- gular successors.' (5) In the case cited infra it was doubted whether the clause was effectual against eveiy successive vassal throughout all time, or merely affected the grantee, his heirs and assignees, until infeftment was once taken on the charter.*(s) 575. A vassal, whose charter contained a clause of pre-emp- tion, with a relative irritant clause against deeds granted in contravention, sold the feu by auction, with the superior's consent ; the purchaser, without being infeft, sold to another party at a higher price, having made no offer to the superior ; Can the supe- rior reduce the sale ? The superior cannot reduce the sale ; because the purchaser had never become vassal, against whom alone the prohibition is directed. °(i) 576. "What is the effect as against a singular successor, of a condition in the charter, (1) that the vassal should not be at liberty to alienate the feu, without the con- sent of the superior ; or (2) that, before selling it, he should offer it to the superior at a fixed price ; or (3) that he should offer it at the price proposed by the intending purchaser ? 1 Bell's Prin., 864 ; Preston, 6th ^ Gall, M., 10306 ; Bell's Prin., March 1805 ; 3 Koss L. C, 289. 864. 2 Preston, supra; Tailors of Aber- * E. of Mar, 28th Nov. 1838, 1 D., deen, 3d Aug. 1840, 1 Koh. App., 116. 313. ' B. of Mar, su2Jra. (s) The ground of the doubt here referred to was the terms of the condi- tion, which was directed only against the grantee, his heirs and assignees ; but if it were directed in proper terms against the grantee and all subse- quent acquirers of the feu, whether by succession or conveyance, it would, if otherwise legal, be eifectual. (i!) See note (s), supra. Digitized by Microsoft® 278 ORIGINAL CHARTER. (1) A prohibition to sell the feu without the superior's consent is null ; being directly struck at by the Act 20 Geo. II, c. 50.^ (2) A stipulation that the vassal, before selling, should oifer it to the superior at a fixed price is likewise ineffectual ; as being substantially a prohibition to alienate without the superior's con- sent.^ (3) A stipulation that the vassal, before selling, should offer the feu to the superior at the price proposed by a third party, is legitimate and effectual.' 577. Explain the nature and intention of the clause prohi- biting subinfeudation ; and its effect with regard to rights granted in contravention. The intention of the clause prohibiting subinfeudation, directed against alienations to be held base of the seller, is to presei-ve the superior's composition for the entry of singular successors, and also to enable him to enforce any stipulations in his favour con- tained in the original charter. It is a lawful stipulation, and ef- fectual against singular successors if transferred to the record. The effect of such a clause is, (1) that although a sub-feu by the vassal will be effectual, while his right subsists, the superior can- not be compelled to give an entry on the vassal's death, and is entitled to proceed with an action of declarator of non-entry.* (2) Where the prohibition is fenced with an irritancy, the sub- feu may be challenged by the superior even before the lands fall into non -entry, at least to the effect of claiming payment of a composition. ^(m) (3) A conveyance with an alternative holding, by which a temporary base right is constituted, is challengeable " by reduction, if the superior could shew an interest (which it would be difficult for him to do) to proceed in that manner;"^ ' Ersk., 2, 5, 28. - Bell's Com., ii, 752 (i, 29). ' Farquharson, 2d Dec. 1800, M., ' Bell's Com., ib. App. " Clause," No. 3. " Tailors of Aberdeen, supra. ' See Authorities in Ans. 574. (u) This would probably depend on there being a stipulation in the feu- right for payment of a. composition on each change of proprietorship, as otherwise the superior could not claim one while he had an entered vassal alive ; and it will be observed that this remedy, though applicable to an al- ternative holding, is not so to a proper sub-feu, which cannot be made to hold of the original superior except by destroying the mid-superiority. Digitized by Microsoft® OEIGINAL CHARTER. 279 and wliere the prohibition is fenced with an irritancy, it is thought that he may proceed by declarator for forfeiting and resolving the right, or at least that he may insist for payment of a composition. (4) The granting of heritable securities, with the usual power to sell, is not a contravention of the prohibition.^ 578. Is it necessary that the conditions of the feu, in all cases, be declared real ? (1) Where the condition is of the nature of a specific obliga- tion, which may he performed and so extinguished by one act, such as the payment of a sum of money, the presumption is, that the grantor of the feu-right meant to impose it on the grantee and his heirs exclusively, and not to extend it against singular successors ; and it will not be effectual against the latter, unless it is of definite amount, and declared to be a real burden on the lands, and transferred to the record.^ (2) But where the condition is of a continuous nature, and is connected with the naturalia of the right, it will be effectual against singular successors as an essential condition of the feu, if clearly intended to affect them, and transferred to the record, al- though not declared to be real.'(-y) ' Bell's Prin., 866 ; Darrooh, 14th " Tailors of Aberdeen, supra ; June 1855, 17 D., 935. Clark, 20th June 1850, 12 D., 2 Duflf's Feud. Conv., 194 ; Men- 1047. zies Leot., 576 (601). («) In Clark, cited, a vassal was by feu-oontract bound to maintain and uphold and to keep insured a, mill, &c. Held (H. of L., 8th Aug. 1854, 17 D., 27) that this obligation, implying tractum futuri temporis, was bind- ing on disponee ; and on a construction of its import that the mill haying been burned down, he was bound to rebuild it. Observed — Such obligations must be construed according to plain meaning of language used. In the Court of Session the vassal had been found liable not to rebuild, but only to expend a certain sum received by insurance in repairing it. The discussion in this case was a good deal as to the import of the obligation and on specialties, and it may be doubted whether the distinction deduced from it in this an- swer is to be relied on. There is no question that effectually to constitute a sum a burden on a subject the amount must be specified ; and in the opi- nions of the judges of the Court of Session, given under the remit by the House of Lords in Tailors of Aberdeen (cited), one point considered was whether a condition, resolving into an indefinite and fluctuating annual payment, could be effectually constituted a real burden ; but there seems to Digitized by Microsoft® 280 OEiaiNAL CHAETEE. 579. How are conditions and provisions in a charter con- nected with the naturalia of the feu made binding on singular successors ; and is it essential that such con- ditions and provisions be declared to attach to singular successors, or be fenced with an irritancy ? (1) Words must be used in the charter which clearly express that the subject itself is to be aifected, and not merely the grantee and his heirs and successors ; and those words must be transferred to the record, and repeated or referred to in the subsequent inves- titures. (2) It is not necessary that any voces signatoe be employed, nor that such conditions and provisions be declared to attach to singular successors, or be fenced with an irritancy. (3) The conditions must not be useless, or vexatious, or con- trary to public policy, and the superior must have an interest to enforce them.^ 580. Is a condition in the charter, that the infeftments in favour of the vassal shall be expede by the superior's agent, effectual against singialar successors when fenced with an irritancy? It has been held by a majority of the judges in one case, that ' Tailors of Aberdeen, supra, p. 277, note 2 ; 3 Koss L. C, 269. be nothing in those opinions to warrant the idea that any condition can be made effectual against singular successors except by being made a real burden, if, indeed, this would not be the result of following the course sug- gested in the second branch of the answer. In the Tailors of Aberdeen, Lords Gillies, Mackenzie, Corehouse, and Jeffrey, stated it to be (p. 315) " undoubted law that if a condition in a feudal grant is conceiyed in terms to make it real, and is not objectionable on any other ground, no irritant clause is necessary to give it effect against singular successors ;" but they suggested no other way of making conditions effectual ; and, again, in an- swer to the question (p. 826), " If any one of the obligations is such as to be a real burden without being so declared, is the irritancy necessary to make it binding upon singular successors ?" their Lordships said — " If an obligation in a feu or burgage right is real, it binds singular successors ; if it does not bind them, it is not real, but personal. An irritancy is often a convenient mode of enforcing a real burden, but not necessary to constitute it, except " in strict tailzies. The only safe course, where it is intended that conditions shall affect the subjects and singular successors, is to declare them real burdens. Digitized by Microsoft® ORIGINAL CHAETEE. 281 such a condition is effectual/ but the decision has been strongly- impugned in a later case in the House of Lords.^ If the condi- tion be invalid, the adjection of an irritancy will not make it binding. 581. What is the object of a clause of irritancy annexed to a condition in a conveyance ? The object of a clause of irritancy is to afford a stringent means of enforcing the condition, by giving an active title to challenge and reduce deeds granted in contravention ;(?/) but such a clause is not necessary to make the condition effectual, nor will it render an illegal condition operative.' 582. By what methods might insertion of the conditions in the Eegister of Sasines be secured before the passing of the Titles Act ; and what means may now be em- ployed for that purpose ? (1) Before the Titles Act, insertion of the conditions in the record was secured by annexing to them an irritant and resolutive clause, declaring that the conditions shall be inserted in the in- strument of sasine and in the future deeds and writs of transmis- sion ; that the deeds and writs in which the conditions are not inserted shall be null ; that the granter of any deed in contraven- tion of the conditions, or in which they are not inserted, shall forfeit his right to the feu ; and that the irritant and resolutive clause shall be inserted as well as the conditions. The transcrip- tion of the conditions into the record might also be insured by " Campbell, 28tli March 1823, 2 ^ Tailors of Aberdeen, supra. S., 341, and 4th March 1828, 6 S., » lb. 679. (a;) (a:) The report here cited is not the judgment referred to in the answer, which was of date 23d May 1823, 2 S., 341 (N.E., 299). The case was then appealed, and remitted by the House of Lords for the opinions of the whole judges, which, except as after-mentioned, were given ; but the case was abandoned. The opinions will be found, 6 S., 679 ; six were in favour of, and four against, the condition. The judges of the First Division did not give, any opinion under the remit. (y) One great use of the irritancy is, that while under the simple real burden the superior can only proceed against the vassal personally for im- plement of the condition, under the irritancy he may evict the subject. Digitized by Microsoft® 282 ORIGINAL CHARTER. inserting the conditions in the precept of sasine, which behoved to be exactly transcribed into the instrument. (2) The Titles Act affords an effectual means of securing the full transcription of the conditions into the record by inserting in the charter a clause of direction, in terms of sec. 3, directing the part containing the conditions to be recorded.(2) 583. Where the superior is desirous to ascertain what rights have been granted by himself or his predecessors af- fecting the superiority, by what form of action may the production of such rights be enforced ? The ancient method was by an action of shewing the holding against the vassal ; but the modern form of action is reduction- improbation,! or exhibition.^ 584. Is the superior entitled to challenge encroachments on the dominium utile where the vassal does not interfere ? Yes ; the superior being entitled, in virtue of his infeftment in the dominium directum, to insist in any action necessary for the preservation of the feu.^(5) 585. What is the purpose of the clause of tenendas ; and what did it anciently contain ? The purpose of the clause of tenendas is to point out the superior of whom the lands are to be holden, and to express the particular kind of tenure. Anciently it contained a long enumeration of ac- cessory rights and privileges, and also the destination, or the series of heirs in whose favour the grant was made.* 586. Where the charter does not express the kind of holding, what tenure would be presumed ? 1 Brsk., 2, 5, 3. ' Breadalbane, 12th Feb. 1851, 13 " Eose, M., 3971. (o) D., 647. * Ersk., 2, 3, 24. ■(e) The course here suggested would not be attended with any advan- tage, as without such a clause the whole deed must be recorded. See also 23 and 24 Vict., c. 143, J 3. (ffi) This case "was at the instance, not of a superior, but of the Crown's donatory to the revenues of certain chaplainries, (4) As a consequence of this principle, tliough a right of servitude by grant is not effectual against the superior without his consent, one acquired by prescription is so, as he is entitled to interrupt it ; Ersk., 2, 9, 4. Digitized by Microsoft® ORIGINAL CHAKTEB. 283 The presumption formerly was for ward-holding ; but now the tenure would be presumed to be feu ; or blench, if held of the Crown. '(c) 587. Is a feuar of part of a barony, the tenendas of whose charter expressed " all mosses and marshes," entitled to participate in a moss belonging to the barony, but which was not a part or pertinent of the lands con- veyed to the feuar by the dispositive clause of the grant ? No ; because the tenendas is ineffectual to convey any right not expressed in the dispositive clause, or not transmitted by it as part and pertinent. ^(c^) 588. What is the purpose of the clause of reddendo ? The clause of reddendo expresses the particular return to be made by the vassal to the superior of services, or of feu or blench duty ; and also the relief payable on the entry of an heir, and, when taxed, the composition to be paid on the entry of a singular successor. 589. What is the extent of a sub-feuar's liability for feu-duty to the mediate or over-superior? The sub-feuar is liable to the over-superior for the full cumulo feu-duty, unless his immediate superior's charter confers power to divide and apportion it among the sub-feuars.'(e) 590. Where the reddendo provides for the casualty of relief in these terms: — "Doubling the said feu-duty the first year of the entry of each heir;" Is the superior 1 Boss Lect., ii, 164. ^ Bell's Prin., 697 ; Duff's Feud. ' Ersk., 2, 3, 24. Conv., 80. (c) Duff (Feud. Con., p. 49) says "This" (blench) "tenure -will now in dubio be presumed, at least in lands held of the Crown." {d) Where the dispositive clause of a feu-contract gave an unlimited right to the lands, but at the end of the tenendas there was a clause reserv- ing to the superior right to " win coals and coal heughs ;" held that it was an effectual reservation of right to the coals ; Bain, 19th May 1865, 3 M'P., 821. (e) This applies more properly to sales of the subject in parcels than to sub-feus. Digitized by Microsoft® 284 ORIGINAL CHARTER. entitled to a duplication of the feu-duty as relief, in addition to the feu-duty for the year ? No ; the superior is entitled only to a sum equal to one year's feu-duty in addition to the feu-duty for the year current at the heir's entry.' But where the expression is " a duplicand of the said feu- duty, over and ahove the feu-duty of the year," the heir is liable for two years' feu-duty besides that of the year.(/) 591. Are blench-duties and payments in kind, as kain -fowls, recoverable, if not demanded within the year ? Blench-duties, if payable si petantur tantum, or of a subject of yearly growth, will be lost if not demanded within the year.^ But payments in kind are recoverable although- not demanded within the year.^ 592. Is a superior entitled to claim interest on arrears of feu-duty ? Interest is not due on feu-duties ex lege; and unless the char- ter contain a stipulation for interest, it can be claimed only from the date of a summons against the vassal to enforce payment.'' 593. Where a feu is constituted by a unilateral deed signed only by the superior, or by a bilateral deed signed by both parties ; May the vassal refute the feu ? The vassal cannot refute the feu, whether it be constituted by a unilateral or a bilateral deed, the right of refutation invito domino, being competent only to such vassals as held proper leneficia, but not to vassals in feu-holdings, in which there is a mutual onerous contract.* 594. Does a vassal continue personally liable for the feu- duty after a sale of the feu ; and what is the effect of a separate bond for the feu-duty by the vassal to the superior? > Ersk., 2, 5, 49. ■* Tweeddale, 2d March 1842, 4 ^ Ersk., 2, 4, 7. D., 862. ' Duff's Feud. Conv., 83. See ' Hunter, 16th Dec. 1834, 13 S., Nasmyth, M., 10276. 205 ; 2 Ross L. C, 231. (/) So found. Earl of Zetland, 30th June 1841, 3 D., 1124. Digitized by Microsoft® OEIGINAL CHARTER. 285 (1) The vassal continues personally liable for the feu-duty after a sale until the purchaser is entered with the superior. '(gf) (2) Where the vassal has granted a separate bond for the feu-duty, the obligation upon him and his heirs is perpetual, and cannot be got rid of by a transference of the subjects.^(7i) 595. What is the extent of a purchaser's liability to the su- perior on obtaining an entry where the provision in the reddendo is in these term : — " Doubling the said feu-duty the first year of the entry of each heir and successor ?" The purchaser is liable in a full composition of a year's rent under deduction of feu-duty and public burdens, the terms quoted not being sufficiently express to tax the entry of singular succes- 596. May the superior renounce or discharge the casualties of superiority, or the feu-duties ? (1) The superior may renounce or discharge the casualties, as these are only natural, but not essential, to the feu. They may ' "Wallace, M., 4195. 526 ; Elmsley, 26tli March 1855, H. " King's College, Aberdeen, lltt of L., 2 Macq. App., 40. Aug. 1854; H. of L., 1 Macq. App., ' M'Lachlan, 14th May 1823, 2 S., 303. (jr) This question again arose in a recent case, and the same judgment was given. The whole judges were consulted, and the opinions were nine to four ; Hyslop, 13th March 1863, 1 M'P., 535. (A) The same result would probably follow if the personal obligation on the vassal, " his heirs, executors, and successors whomsoever," was contained in a feu-contract. It was so held as to a contract of ground-annual ; Miller, 3d Feb. 1849, 11 D., 495 ; as reversed on appeal, lYth March 1853, 1 M'Q., 345. (j) As a general rule, the word " assignees " in a charter applies only to assignees before infeftment, but as it is flexible it may be so used as to dis- place the usual presumption and to mean singular successors, whether ac- quiring before or after infeftment ; so under a reddendo which stipulated for " the double of the said feu-duty the first year of the entry of each heir, and the sum of £12 Scots the first year of the entry of the assignees of the said Isobel SpreuU or her foresaid to the haill lands," a singular successor was found entitled to an entry for that composition ; Hamilton, 16th July 1853, 15 D., 925. Digitized by Microsoft® 28G OEIGINAL CHARTER. be renounced by express words in the dispositive clause of the charter, or by a deed of renunciation, or by charter of novodamus, the renunciation being transferred to the record. (2) The feu-duty cannot be wholly renounced, as it is an es- sential character of fees that the vassal acknowledge the superi- ority by some payment or lawful service. But the feu-duty may be restricted to a mere elusory payment by a deed of renunciation and restriction ; or it may he vested in the vassal as a separate Uench fee, by conveyance from the superior. '(/) 597. Where the charter contains a renunciation of the casu- alties. Is it effectual against singular successors in the superiority, if not transferred to the record? In one case it was held that such a renunciation was effectual against the singular successors of the superior although not trans- ferred to the record ; but the ground of the decision seems to be that the party having accepted of the conveyance of the superi- ority under the express burden of the feu, he was hound by every clause in the feu-right. The general question appears to be still open, but it will turn on this, whether the renunciation is personal, or forms a real condition of the feu.^ 'Ersk., 2, 3, 11; Duff's Feud. ^ Nasmyth, M., 5723 ;(*) and Kil- Conv., 79 ; Nasmytli, M., 5723. kerran's Report, M., 10276, in which the reporter adds : — " This never- (y) The correct mode, on feudal principle, would be for the vassal to re- sign the feu and get it back by charter of resignation and novodamus con- taining the new reddendo specifying the feu-duty, and containing an obliga- tion to enter all heirs and singular successors gratuitously. [k) The report here referred to is also by Kilkerran, and bears that "The Court being much divided upon the general question, they, with a declared intention to avoid a decision of it, took up the case upon the spe- cialty " mentioned in the answer. As in dispositions of superiority, the feu- rights are always excepted from the warrandice, and as superiors can in their grants or feu-rights deal with and modify the casualties as they please, the ground of decision in Nasmyth seems quite sufficient for the general case. In regard to the question of personal or real, referred to in the an- swer, it is to be observed that, according to former practice, the reddendo was not inserted in the sasine, and did not enter the record, but still the feu- duty formed a real burden affecting the vassal and his singular successors ; and the same principle would seem to apply to the superior and his singular successors in regard to the casualties. Digitized by Microsoft® ORIGINAL CHARTER. 287 598. Where the entry of vassals is taxed in the charter, Is the taxation effectual against the heirs and singular successors of the superior ? The taxation will he eifeotual as between the superior and the vassal, and their heirs ; but it is doubtful whether it will bind singular successors of the superior, if not entered on the re- cord,i(0 599. By what means may the superior be secured in payment of a composition on each sale of the feu ? By inserting in the dispositive clause of the charter a prohibi- tion against subinfeudation, fenced with a clause of irritancy ; a theless in effect implied a decision of the general question, at least as to the import of the obligation. For if the obligation upon Robert Hamil- ton (the original superior) to enter the heirs of the vassal, &c., were only binding upon the granter and his heirs, they made no part of the feudal right, with the burden where- of only the conveyance to the pur- suer (the purchaser of the superior- ity) was granted ; and for the same reason the import of the exception from the clause of absolute warran- dice also depended on the intention of these obligations ; for if it was no other than that they should be bind- ing upon Eobert Hamilton himself, and his heirs, they did not fall under the warrandice contained in a conveyance to singular successors.' 1 Duff's Feud. Conv., 86. See Nasmyth, . {I) In the passage from Duff here referred to, an opinion is expressed that the taxation is not effectual " in a question with the singular successor of the superior unless expressed in the dispositiye clause ;" in support of which, Nasmyth {supra, note 2, p. 286) is quoted. For the reason already stated (note [k), p. 286), it is thought that that view is incorrect, and refer- ence may be made to Dixon, 3d March 1858, 20 D., 721 {supra, note (c), p. 262), where it was assumed by all the judges " to be both competent and usual to insert a clause taxing the entry of heirs and singular successors." The mode there proposed was the usual one, of inserting the composition in the reddendo, " And paying as composition on the entry of every heir and singular successor to the foresaid subjects one penny, and no more, to which the composition is hereby taxed ;" and though it does not appear that the clause was formally approved of by the Court, no objection was stated to it by any of the judges. The casualties might, as suggested by Mr Duff, be referred to, as the feu-duty is in the dispositive clause, but this would not, under the old practice, have met the objection that they did not enter the record. The better way might be, as he proposes (p. 209), to except the feu-rights themselves in the dispositive clause of the conveyance of the su- periority (as seems to be his meaning) ; but it does not appear how the vas- sal is to secure this. Digitized by Microsoft® 288 ORIGINAL CHARTER. provision that all disponees of the grantee should he ohliged to enter within a certain period from the dates of the dispositions in their favour ; a provision that a composition should he due on each sale to a purchaser, without reference to the death of the vassal ;(ot) and (if the charter is to contain a precept of sasine) a declaration that the charter should not form a valid warrant for sasine after a certain time. If the title is to be completed by registration, a clause of direction may he used to insure the inser- tion of the provisions in the record.'(n) 600. What is the import of the statutory clause, " I assign the writs ; " and how is the clause usually expressed in the original charter ? (1) The statutory clause imports an absolute assignation to the writs and evidents, and to all the open procuratories and pre- cepts therein contained, to which the disponer has right. ^ (2) In the assignation of writs in the original charter there is usually a qualijELcation that the writs are assigned, to the effect only of maintaining and defending the disponee's right, and an obligation to make them forthcoming,(o) conform to inventory, on all neces- sary occasions, on a receipt and obligation for re-delivery of them within a reasonable time, and under a suitable penalty. {See Assignation to Writs under Disposition, infra.) 601. What is the import of the statutory clause, "I assign the rents"? The clause of assignation to rents, unless specially qualified, imports assignation to the rents to become due for the possession 1 Duff's Feud. Con v., 85. ' 10 and 11 Vict., u. 48, § 3. (m) Or that a composition should be payable by each assignee or dis- pones at the first term after his acquiring riglit to the feu. (n) A clause of direction would not be appropriate, because it only ap- points certain parts of the deed to be recorded, while without such clause the whole deed must be so, which insures the object in view. The charter should in the dispositive clause exclude assignees before infeftment or re- gistration in Register of Sasines, and declare that the charter shall not be a valid warrant for such infeftment, nor shall be so registered after a certain time, and there should be a provision that all charters, writs, and precept."! in favour of heirs and singular successors shall contain the same conditions (o) At the vassal's expense, Digitized by Microsoft® OKIGINAL CHARTER. 289 following the term of entry, according to the legal and not the conventional terms, unless in the case of fore-hand rents, in which case it imports an assignation to the rents payable at the conven- tional terms subsequent to the date of the entry.(j)) 602. What is the use of the clause of assignation to rents? It is to give the disponee a title, before infeftment, to recover the rents and duties payable by the tenants and occupiers of the lands.' 603. In a competition for the rents betwixt a disponee with a personal title, which had been intimated to the tenants, and an heritable creditor, who had attached the estate, "Who wiU be preferred ? The disponee will be preferred to the rents which fell due be- fore the completion of the creditor's real right, but the latter will carry off the rents falling due subsequently.^ 604. What is the import of the statutory clause of obligation to relieve of all feu-duties, casualties, and public bur- dens? It imports an obligation to relieve of all feu-duties or other duties and services, or casualties payable to the superior, and of all public, parochial, and local burdens due from or on account of the lands prior to the date of entry.^(r) 605. A superior bound himself in 1789 to relieve the vassal of all minister's stipend and public burdens imposed and to be imposed on the lands ; and public burdens were imposed by a statute passed (s) in 1812 ; Was the vassal entitled to relief thereof ? I Menzies Lect., 536 (557). ' 10 and 11 Vict., c. 48, i 3. "Duff's Feud. Conv., 93. See Ads. 318. {p) 10 and 11 Vict., c. 48, | 3. See as to construction of clause, Mur- ray's Trs., 31st May 1865, 3 M'P., 845. I (r) The statutory clause is appropriate to dispositions, not to original charters, in which the terms should be different. See note (I), p. 265, (s) Insert, " in 1839, and an assessment voluntarily imposed by the heritors." Digitized by Microsoft® 290 OEIGINAL CHARTER. No; because tlie parties are not held to have had in view burdens imposed under statutes [not existing at the date of the chapter.''(<) 606. Is the superior liable for an assessment for building or repairing the parish minister's manse ? State the reason. The superior is not liable for such assessment ; because he is not an heritor in the sense of the Act 1663, c. 21.^ 607. "What is the import of the statutory clause, " I grant warrandice?" Absolute warrandice as regards the lands and writs, and war- randice from fact and deed as regards the rents. ^ {See Clause of Warrandice, p. 88 ; and Warrandice under Disposition infra.) 608. How ought the clause of warrandice to be expressed 1 Scott, 25tli June 1850, 12 D., ^ Dundaa, M., 8511. 1077. = 10 and 11 Vict., c. 48, g 3. (t) Obligation to relieve a vassal " of all cesses, taxations, supply, high- way money, and other public burdens whatever, due and payable forth, or that anywise may be imposed upon the lands in all time coming," held to entitle him to be relieved of poor rates ; Eeid, 16th Feb. 1843, 5 D., 644. See also Lees, 11th Nov. 1857, 20 D., 6 ; Hunter, 16th' July 1858, 20 D., 1311 ; Paterson, 10th Dec. 1863, 2 M'P., 234, and Campbell's Trs., 17th Nov. 1865, 4 M'P., 50, where the question was as to poor rates imposed under 8 and 9 Vict., c. 43, which was passed after the date of the feus. In Camp- bell's Trs. it was also held that under an obligation to relieve the vassal " of all minister's stipends " and " teind duties " payable for and forth of the lands, "bygone and in all time coming," he was entitled to be relieved of subsequent augmentations of stipend ; though, as there observed per Lord Deas, an obligation of relief " of stipend imposed or to be imposed does not necessarily, or even usually, import relief from augmentations ;" but it ap- peared that the superior had been all along in the habit of paying the whole stipend. In Eosslyn (Locality of Dysart), 7th Dec. 1865, 4 M'P., 140, it was held that an obligation to relieve the vassal " of all public burdens, except poor rates and prison tax, which have been or shall be laid or assessed " on the lands, did not include stipend, that being a burden, not on the lands, but on the teinds, which were not conveyed. See Clayhills, 21st Dec. 1864, 3 M'P., 269, where an obligation to relieve of public burdens contained in a feu-contract, which was never feudalised, but was superseded by another, which narrated at length the first deed and obligation of relief, but did not in the part containing the new grant repeat that obligation, was held to be lost. Digitized by Microsoft® ORIGINAL CHARTER. 291 when the lands are under lease, but the tenants are partly not yet in possession ? An exception should be made in the olaitse of warrandice of the current leases, and with regard to those under which the ton- ants have not yet obtained possession it should be specially de- clared that the disponee accepts the lands under burden of such leases, and that he shall allow the tenants to obtain entry ; but without prejudice to the disponee to impugn the leases upon any ground in law which shall not infer recourse against the grantor. 609. May a charter by a subject-superior be recorded for preservation in the SheriiF Court Books, if it contains a consent to registration in that record ? No ; charters by subject-superiors being registrable for pre- servation only in the Books of Council and Session. ^(««) 610. What was the import of the precept of sasine in use before the Infeftment Act of 1845 ? The precept of sasine was a desire and request by the superior to his bailies, whose names were left blank, to proceed to the ground of the lands, and there give and deliver to the disponee, or his heirs and assignees, heritable state and sasine, real, actual, and corporal possession of the lands conveyed, by deliverance to them, or to their attorney, bearers of the charter, of earth and stone of the ground of the lands, and all other symbols usual and necessary.^ 611. What were the changes on the precept of sasine intro- duced by the Infeftment Act of 1845 ? (1) No bailie is named, the notary being directed to give in- feftment. (2) There is no direction to proceed to the lands, that cere- mony being abolished by the Act. (3) There is no delivery of. symbols. (4) There is no reference to the grantee's attorney. > 1693, c. 35. ^ Jur. St., i, 17. (m) a feu-disposition may be registered in the books of other courts. T 2 Digitized by Microsoft® 292 OKIGINAL CHAKTEB. ' 612. Do precepts of sasine fall by tlie death of the granter or grantee ? Precepts of sasine, being mandates, formerly expired on the death of either party; but by the Statute 1693, c. 35, it was enacted that precepts should be sufficient warrants for sasine after the death of either party, or both, provided that sasines taken after the death of either party express the title of those in whose favour infeftment is expede, and that the title be deduced in the instrument, under the pain of nullity. The Act excepts precepts of dare constat, which, as being strictly personal, formerly fell on the death of either the granter or grantee, but now only on the death of the grantee.^ 613. Enumerate the symbols of infeftment under the old form? (1) Earth and stone for lands and houses. (2) Hasp and staple for burgage tenements. (3) Clap and happer for mills. (4) Net and coble for fishings. (5) Sheaf of corn, or handful of grass and corn, for teinds. (6) A psalm-book and the keys of the church for patronage. (7) A penny money for annualrent, or, if prestable in victual, a handful of corn, and earth and stone for the lands. (8) An oar and water for a right of ferry. (9) The Book of the Court for jurisdiction.^ III. INSTEUMENT OF SASINE. 614. Define sasine, and what is its effect ? Sasine is the delivery of possession to the vassal (formerly by symbols, now by notarial act), attested by a notarial instrument ; and its effect, when completed by registration, is fully to divest the superior of the dominium utile, and to invest the vassal — to convert the personal right, or jus ad rem acquired by the vassal by delivery of the charter, into a jus in re, or a right in the subject. 615. When was the instrument of sasine introduced into Scotland ? ' 10 and 11 Vict., o. 48, ? 15. ' Ersk., 2, 3, 36. Digitized by Microsoft® INSTRUMENT OF SASINE. 293 It is stated by Sir Thomas Craig that the instrument of sasine was introduced by James I, in 1430, after his return from Eng- land ; but there is evidence that it was used at an earlier period.'- 616. Describe the ceremony of infeftment under the old form. The superior's bailie, the vassal's attorney, a notary, and two witnesses, having gone to the lands, the attorney delivered the deed containing the precept to the baUie, requiring him to perform the duties, in terms of the precept. The bailie delivered the deed to the notary, who explained the nature of the conveyance (x) to the witnesses, and read the precept. The notary having then re- delivered the charter to the bailie, the latter delivered the proper symbols of possession to the attorney, who thereupon took instru- ments in the hands of the notary, by giving him a piece of money ; the whole res gestae being done in the presence of the witnesses, and afterwards set forth in the instrument of sasine. 617. Enumerate the clauses of the instrument of sasine in the old style. (1) The invocation ; (2) the date, and the year (y) of the sove- reign's reign ; (3) the appearance of the parties (z) and the notary and witnesses, on the ground ; (4) the narrative of the charter ; (5) the requisition to the bailie ; (6) the bailie's acceptance of the war- rant, and delivery of it to the notary ; (7) the publication of the charter, and the transcript of the precept ; (8) the delivery of sasine ; (9) the taking of instruments ; (10) the summary of the res gestoe,{a) and the names and designations of the witnesses,; (11) the notary's docquet.^ 618. Must the year, both of the era and of the sovereign's reign, be inserted in the instrument in the old form ? ' Ersk., 2, 3, 34. '' Jur. St., i, 59. (x) Strictly the deed required to be " read and published," and the in- strument always bore that it had been so. {y) " Both of the Christian era and " — (z) Or of their represeutatiyes, the procurator and bailie, (a) With the hour of the day when it took place.. Digitized by Microsoft® 294 INSTRUMENT OF SASINE. It is doubtful whether both are essential ; but where both are given, they must correspond. '(6) 619. A sasine in the old form was dated the day of May 1840, another was dated the day of July 1840, and both were recorded on 10th August that year ; Wfere both, or either, good or bad ? (1) The 'first sasine is null ; because sasines were inept which were not registered within sixty days of their date ; and here, al- though infeftinent had been expede on the last day of May, the registration was not made in due time. (2) The second sasine might be sustained, if not challenged on the ground of deathbed, (c) bankruptcy, or the like ; because infeftment taken on any of the days of July is timeously registered on the 10th of August.2((?) 620. The bailie was described in the instrument as Brown in Dubbs, his christian name being left blank ; Is an ob- jection on that ground relevant, there being no aver- ment that there was another person of the same name in the same place ? State the reason. No ; because, as stated by the Lord Chancellor in the case cited, there being no reason to suppose that there were more than 1 Town of Brechin, llth Deo. ^ Dickson's Trs., 15tli Dec. 1820 ; 1840, 3 D., 216 ; Lindsay, 27th Feh. Hume, 925., 1844, 6 D., 771 ; M'Farlan, 2d June 1853, 15 D., 708. (6) In Smith, 13th Feb. 1835, 13 S., 461, a sasine was found null, the year of the Christian era being written partly on an erasure, .though the year of the king's reign was also given, was not subject to any objection, and corresponded with the other. In this case. Lord MonoreiflF, in his opinion, stated — " It is essential to the validity of every instrument of seisin that it should bear the date both of the Christian era and of the king's reign." In M'Farlan, cited, note 1, the Court held that the year of the king's reign, which was the only one inserted, not being correctly specified, the sasine was null, and that it was not necessary to decide the question, "whether it is essential to the validity of such an instrument that its date be described by reference to the year both of the Christian era and of the sovereign's reign." (c) A question of deathbed could hardly arise as to a sasine. (d) In Gordon, 5 Br. Sup., 587, a sasine was sustained, the date at the beginning of which was 1st October 1771, while at the end sasine was said to have been given on 30th September. Digitized by Microsoft® „ INSTRUMENT OF SASINE. 295 one "Brown in Dubbs," the objection resolves into a latent ambi- guity, wbicb must be averred and proved.' 621. Is a sasine valid in which the precept is not inserted, or only partially inserted ? (1) In an old case, a sasine was sustained in which the precept was not inserted f but the decision is of doubtful authority. (2) The insertion of the precept in sasines in the new form is indis- pensable.^ (3) Where the precept contains a description of the lands, and infeftment is to be given only of part, it has been held sufficient to insert only as much of the precept as relates to the portion of the lands in which sasine is to be given.* 622. A sasine bore that " heritable state and sasine, real, actual and corporal possession," had been given by delivery of the usual symbols, but without specifying them ; (2) another omitted the words " heritable state and sasine," &o., but contained a specification of the proper symbols ; (3) and a third bore that " heritable state," &c., had been given, but mentioned a wrong symbol ; Were the instruments, or any of them, valid ? The first has been held to be valid f but the second^ and third are null.^(/) 623. The precept directed heritable state and sasine to be given without specifying the symbols, but these were ' Morton, 10th Deo. 1828, 7 S., ^ Urqnliart, M., 9915-21, aff. 172 ; aff. 26tli Nov. 1830, 4 W. and » Davidson, 14th Nov. 1827, 6 S., S., 379. 8. ^ Lady Lambertown, M., 14809. ' Carnegie, M., 14316 ; Town of » 8 and 9 Vict., c. 35, ? 5.(«) Brechin, 11th Dec. 1840, 3 D., 216. « Don, 4th Feb. 1813, F.C. («) And schedule (B), annexed. (/) In Town of Brechin (cited) there was not a wrong symbol, but an omission of one, the instrument bearing only "stone," in place of "earth and stone," and the year of the king's reign did not cowrespond with that of the Christian era ; but it was observed, that either objection would have been fatal. In a prior case, Gordon, 5 Br. Sup., 587, a sasine which did not bear that both earth and stone were delivered was sustained. Digitized by Microsoft® 296 INSTRUMENT OF SASINE. ^ correctly set forth in the sasine ; Was the infeftment valid ? State the reason. Yes ; because the precept being an act of a private party, all that is required is, that it contain sufficient authority to warrant the infeftment. The instrument, on the other hand, being an actus legitimus, must be complete in itself, and the strictest obser- vance of form is essentially necessary.^ 624. The dispositive clause of the charter was in favour of A, and the precept was to B ; What is the effect of infeftment on the charter ? Infeftment will not vest the fee in B, as there was no act of ti'ansmission to him, the dispositive clause being the ruling clause of the deed ; nor can A directly complete a real right under the charter, as it does not contain a precept in his favour.^ 625. Is a precept to infeft the " heirs of A " a sufficient war- rant for sasine ? A sasine in favour of "the heirs of A " is null; but if the party infeft is named in the instrument, and his character as heir established by a service deduced in the instrument, the sasine is valid>^ 626. What is the effect of infeftment on a precept in favour of " Eobert Murdoch & Co.," or to " Eobert Murdoch and the other partners of Eobert Murdoch and Com- pany " ? (1) Infeftment to " Eobert Murdoch & Co." is null ; because a company cannot sustain the feudal relation.' (2) Infeftment to " Eobert Murdoch and the other partners of Eobert Murdoch and Company " is a valid investiture to the partner named, but not to the others. '(gr) 1 Barstow, 18tli Feb. 1858, 20 D., * Morrison, 18th .Tune 1818 612. Hume, 720. ^ Shanks, M., 4295. ' Denniston, 16th Feb. 1808, 8 Bell's Prin., 876. M., App., " Tack," No. 15. (g) In Denniston, cited, it was held that a lease may be granted to a company socio nomine. Digitized by Microsoft® INSTEUMENT OF SASINE. 297 627. May infeftment in all lands belonging to the granter be validly given on a general conveyance containing a precept ? (1) Infeftment on a general conveyance of all lands belong- ing to the granter is null ; because the lands in which infeftment is to be given must be distinguished and identified in the instru- ment.'- (2) But the sasine is good if the granter's infeftments have been produced to the notary, and mentioned in the instru- ment.^ 628. May infeftment in liferent, or in trust, or in security, or in an annualrent, be given on a . precept authorising sasine in fee ; or vice versa ? (1) A precept of sasine in fee may be assigned so as to war- rant infeftment in liferent, or in tmst, or in security ; ^ but a pre- cept in fee has been held not to authorise infeftment in an annual- rent.^(A) (2) A precept for sasine in liferent, or in trust, or in security, is no authority for infeftment in fee ; ^ but a precept for sasine in trust in a settlement containing a power of sale, may be assigned by the trustees to a purchaser so as to warrant sasine in fee, free of the provisions and conditions of the trust.^(t) ' Belshes, 21st Jan. 1815, F.O. ^ Mitchell, M., 14335. (and 2 Eoss L. C, 32). ' Authorities in note 3, supra. = Graham's Crs., M., 49. « Cockburn, 4th June 1836, 14 S., » BeU's Prin., 877 ; Duflf's Feud. 889. Conv., 109 ; Menzies Lect., 540 (562). ' 1(A) Mitchell, cited, was decided 16th July 1767. See contra, Bonthrone, 29th May 1805, Hume, 238. A husband by contract of marriage bound himself to secure his wife in an annuity payable out of any lands he then had or might acquire ; he afterwards disponed a house to her in security of the annuity, and assigned an open precept in his favour on which she was infeft. Held, in a question with trustees for his creditors, that her infeft- ment was effectual to secure her annuity. (?) This is put more broadly than the case of Cockburn, cited, warrants. The trust-deed there conveyed to the trustees, " and to the assignees or dis- ponees of the trustees." There was power to sell, and the purchaser was to be nowise concerned with the conditions of the trust, and the precept was for infefting the trustees " and the assignees of the trustees ;" and the judg- ment proceeded on these specialties. No general rule, such as is stated in this answer, was settled, and each case would probably depend on its own circumstances. Digitized by Microsoft® 298 INSTRUMENT OF SASINE. 629. In what cases were separate acts of infeftment neces- sary? Separate acts of infeftment were necessary, (1) where the lands were discontiguous ; (2) where they were held of different superiors ; (3) where they were held by different tenures ; (4) where they were held by different titles. 630. If an instrument of sasine, in several portions of land locally discontiguous, and held by different titles, bore (1) that sasine was given " on the ground of the said lands," without the words " respectively and suc- cessively;" or (2) that sasine was given "on the ground of the said lands respectively and successively, where the same are 'discontiguous ; " would both, or either, of the sasines be valid ? (1) In the first case, it is thought, the sasine would be valid, for although the words " respectively and successively " be want- ing, the expression used is not exclusive of the fact that separate acts of infeftment were taken ; ^ (Jc) (2) but in the second case, it is thought the sasine would be bad as to the parcels of land held by titles different from those of the parcel on which infeftment had actually been taken, unless the word " discontiguous " would bear the interpretation of legal disjunction, as well as local discon- tiguity.2 631. By what means, and to what extent, might the neces- sity for separate acts of infeftment be obviated before the Infeftment Act ? Where the lands had been erected into a barony, or had been united by a clause of union in a charter from the Crown, infeft- ment might be given in subjects lying locally discontiguous or requiring different symbols, at the place appointed ; or, if no place were named, on any part of the barony or united lands, and by the symbols of earth and stone. But a clause of union obviated only discontiguity and the necessity for different symbols, and 1 Ersk., 2, 3, 45 ; Bell's Prin., 872. = g^g jj^^.g ^^^^^ Qo^^__ 1^2. {k) It was so held in Gordon, 5 Br. Sup., 587. In Maxwell, M., 14318, the expression was " super fundis dictarum terrarum," &c., and not super fundo. Digitized by Microsoft® INSTEUMENT OF SASINE. 299 liad no effect in dispensing -with separate sasine, where the supe- riors, tenures, or titles of the several lands were different.' 632. Where different portions of lands contained in a charter with a clause of union had heen sold or feued ; Were separate acts of infeftment in these portions neces- sary? No ; the union being an inherent quality of the lands, which is not dissolved by a separation of a part from the whole, neither the part alienated, nor the part retained, being deprived of the benefit.^ 633. What words have been held indispensable in the no- tary's docquet ? The words " vidi scivi et avdivi" have been held indispen- sable ; " and a sasine was reduced from the docquet of which these words were omitted, " diim sic ut prwrnittitur, dicerentur agerentur et fierent una cum prcenominatis testibus presens personaliter inter- fui."\l) 634. Is it necessary that the witnesses sign each page of the instrument ? The subscription of each page (jn) by the witnesses was neces- sary in infeftments in the old form, because they were called to witness and attest the facts ; but it is unnecessary in the case of sasines in the new form, because the witnesses attest merely the 1 Ersk., 2, 3, 45 ; Bell's Prin., 874. ' Primrose, M., 14326. ^ BeU's Prin., 874 ; Montgomery, " Macintosh, 17th Nov. 1825, 4 S., 2d March 1813, F.C. ; Heron, M., 190. 8684. [t) In the case of Macintosh, cited, reference was made to Maxwell, M., 16837, and observed, that it should not be followed. There a sasine with the short attestation, " Ita esse attestor signo et subseriptione his meis manuali- bus," was sustained. (m) The Act 1686, c. 17, requires the subscription only of each leafhj the notary and witnesses, and a sasine so signed by the notary was sus- tained. It does not appear from the report how the witnesses had signed ; Carnegie, 26th Feb. 1796, M., 8858. The practice was as stated in the answer. Digitized by Microsoft® 300 INSTRUMENT OF SASINE. subscription of tlie notary.(ra) The Burgage Tenure Act enacts that burgage sasines shall be authenticated in the manner shewn in schedule D, which directs that the witnesses shall sign on the last page only.'(o) 635. What is the effect of erasures in sasines ? Erasures in sasines do not aifect their validity, unless there be proof of fraud, or the record is not conformable to the instrument. But the statute conferring the protection does not extend to sasines propriis nianibus.'(^p) 636. Is it a relevant objection to a sasine that at the time of taking infeftment the testing clause of the disposi- tion was not filled up ? State the reason. No ; because the delivery of the deed, containing the precept to the grantee, was a warrant to him to insert the testing clause, and when filled up it is prohatio probata of the fact of the deed being completed by subscription at its date.^ 637. "What changes were introduced in the form of giving infeftment by the Infeftment Act of 1845 ? (1) The ceremony of infeftment on the lands and the symbols were abolished ; and it was provided that sasine should be eiFec- tually given, and infeftment obtained by producing the warrant to a notary public, and expeding and recording an instrument of sasine, in terms of the Act. (2) One act of infeftment is declared ' 10 and 11 Vict., c. 49, § 5. « Leith Bank, 22d Jan. 1836, 14 ■^ 6 and 7 WiU. IV, c. 33, § l.{^) S., 332. (n) This is the general opinion as to the import of the Act 8 and 9 Vict., u. 35, and schedule ; but the practice has not been at all uniform, many conveyancers continuing the old rule of having each page subscribed by the witnesses. (o) The schedule to the Burgage Tenure Act directs the notary to prefix his motto to his signature, which is not required in sasines in lands not held burgage ; 8 and 9 Vict., c. 35, schedule (B). (p) The provisions of the 6 and 7 Will. IV, c. 33, are now extended to notarial instruments, and instruments of resignation ad remanentiam, instru- ments of cognition, and other notarial instruments in burgage subjects, and to all notarial instruments expede under the 8 and 9 Vict., c. 31 ; Titles to Land Act, 1858, I 33 ; and Titles to Land Act, 1860, ? 19, which also corrects the error in ? 33 of the Act of 1858. Digitized by Microsoft® INSTRUMENT OF SASINE. 301 to be effectual, whether the lands lie contiguous or discontiguous, or are held by the same or different titles, or of one or more supe- riors. 638. Enumerate the clauses of the instrument of sasine in the new form ? (1) The production (r) of the charter to the notary by or on behalf of the grantee ; (2) the narrative of the dispositive clause of the charter ; (3) the insertion of the precept ; (4) the giving of sasine ; and (5) the testing clause. 639. State generally the leading provisions of the Statute 1617, c. 16, establishing the Eegisters of Sasines, and of the subsequent relative Statutes ? (1) 1617, c. 16, established the General Eegister of Sasines in Edinburgh, and Particular Eegisters in each of the districts into which the kingdom is thereby divided ; and ordained that all sasines, reversions, &c., should be recorded either in the General Eegister or in the Particular Eegister of the district within which the lands are situated, within sixty days of their date. The keeper of each register is appointed to record the deeds within forty-eight hours after presentation, and to engross the whole of the body of the writ in the register. Sasines not thus registered, it is de- clared, shall make no faith in judgment in prejudice of a third party who has acquired " a perfect and lawful right " to the lands ; but that the unregistered writs may be used against the granter, his heirs and successors. (2) 1672, c. 16, appointed the keepers of the registers to make minute-books containing the names and designations of the par- ties, and the common designation of the lordship or barony of the lands mentioned in the writ. (3) 1681, c. 11, established the Burgh Eegister of Sasines. (4) 1686, c. 19, enacted that when sasines were presented to the keepers, and dehvered back with a certificate of registration, that should be sufficient for the parties' security, although the writs were not engrossed in the register. 1 8 and 9 Vict., c. 35, § 1. {r) At a place specified. Digitized by Microsoft® 302 INSTEUMENT OF SASINE. (5) 1693, c. 13, enacted that all infeftments or other real rights shall, in all competitions, he preferable and preferred ac- cording to the date and priority of registration. (s) (6) 1693, c. 14, provides that the minute-book (t) shall express the day and hour when, and the names and designations of the persons by whom, the writs shall be presented ; and that each minute shall be immediately signed by the presenter of the writ and the keeper ; and that the writs shall be registered in the order of the minute-book. (7) 1696, c. 18, repealed the Act of 1686, and enacted that no sasine, or other writ appointed to be registered, should be of any force against others than the granters and their heirs, unless duly booked and inserted in the register. (8) A.S., 17th Jan. 1756, appointed the notary's docquet, as well as the body of the sasines, to be fully engrossed in the re- gister. 640. What are the provisions of the Infeftment Act of 1845 with respect to the registration of sasines on precepts by subjects ? (1) Sasines, in the new form are made registrable at any time during the life of the party in whose favour the instrument is ex- pede ; (2) it is enacted that the date of presentment and entry set forth on the instrument by the keeper of the record should be taken to be the date of the instrument of sasine and infeft- ment ; (3) in case of error or defect, it is made competent to (s) Two sasines were presented for registration on the same day and by the same agent, and were both stated in the mimite-book to be given in be- tween the same hours, but the one first in date was first entered in the minute-book and first recorded. Held incompetent to prove by parole that they were de facto presented together ; Douglas, 21st Feb. 1835, 13 S., 505. Where it is intended that two bonds are to rank pari passu, a declaration to that effect should be inserted in each of them. In the old forms, this was done in the dispositive clause and precept, so as to insure its entering the record ; it should now be at the end of the dispositive clause. {t) The entry in the minute-book, and not that in the record, is the evi- dence of the date of recording a presentation for that purpose ; and a discre- pancy between them, which, if the record had been taken as the evidence, would have made the registration beyond the sixty days, held of no im- portance ; Maclaine, 16th June 1852, 14 D., 870 ; aff. 6th July 1855, 18 D., 44. Digitized by Microsoft® INSTRUMENT OF SASINE. 303 record another instrument, having effect from the date of its regis- tration, (m) 641. What are the provisions of the Titles to Land Act with respect to the registration of a conveyance, as an equi- valent to infeftment ? That it shall be competent and sufficient for the grantee of the conveyance, instead of expeding and recording an instrument of sasine, to record the conveyance itself in the Eegister of Sasines ; and the conveyance being presented for registration with a warrant of registration thereon, specifying the person on whose behalf it is presented, and signed by him or his agent, (ic) and being so re- corded along with such warrant, shall have the same legal force and effect as if the conveyance had been followed by an instrument of sasine duly expede and recorded at the date of recording the conveyance, according to the former law and practice, in favour of the person in whose behalf the conveyance is presented for regis- tration.^(2/) 642. What are the essential acts in recording a sasine or a conveyance ? (1) The entry in the minute-book ; (2) the transcription of the sasine into the record, and, in the case of a conveyance, the tran- 1 21 and 22 Vict., c. 76, § 1. (m) This was competent under the former system, it being held that a precept was not exhausted till a valid sasine had been taken and duly re- corded ; Watson, 15th May 1818, Hume, 719 ; Moncrieff, 29th Jan. 1830, 8 S., 416 ; Kibbles, 18th Dec. 1830, 9 S., 233 ; aff. 5 W. and S., 553. (x) The warrant must contain the designation of the person on whose behalf the deed is to be recorded, and there must be added after the agent's signature his designation and residence and character as agent of the party (see schedule to Act). A disposition was recorded with a warrant in these terms — -"Register on behalf of Matthew Pettigrew. William Maclean, agent." Held in a competition that the registration was invalid and null ; Johnston, 16th June 1865, 3 M'P., 954. (y) In case of any error or defect in the recording of a conveyance or warrant, it may be recorded of n^w either with the original or a new war- rant of registration ; Titles to Land Act, 1860, § 35. In the case of notarial instruments, the remedy is " of new to mate and record a notarial instru- ment," &c. ; ibid. Digitized by Microsoft® 304 INSTRUMENT OF SASINE. soription also of the warrant of registration ; (3) the certificate of registration. 643. Must marginal additions in the record he signed ? It is not essential that marginal additions in the register be signed, if they are in the same hand as the body of the record ; because the register, being in puhlica custodia, is exempt from sus- picion.' 644:. Within what time must sasines or conveyances be re- corded in the Eegister of Sasines ? (1) Sasines in the old form, and sasines propriis manihus, must be recorded within sixty days of their date.^ (2) Sasines in the new form, and the whole writs and instru- ments comprehended within the term "conveyance," by the in- terpretation clause of the Titles Act, may be recorded at any time during the life of the grantee.^ (3) Before the Infeftment Act, Chancery precepts were void, if infeftment was not given before the first term of Whitsunday or Martinmas posterior to the date of the precept ; and that statute provides that such precepts shall be void unless the sasine be re- corded before such first term.^ 645. Where an error has been committed in recording a con- veyance, or in the warrant of registration ; How may the defect be remedied ? (1) Where an error has been made in recording a conveyance, the defect may be remedied by recording of new the conveyance and the original warrant. (2) Where the error occurs in the war- rant, the conveyance with a new warrant may be recorded.' 1 Maolaine, 16th June 1852, 14 « Duff's Feud. Conv., 482 ; 8 and D., 870 ;(2) aff. 6th July 1855, 18 9 Vict., o. 35, § 6. D., 44. ' 21 and 22 Vict., u. 76, § 31.(a) ^ 1617, c. 16. The Act, however, does not appear ° 8 and 9 Vict., c. 35, ? 3 ; 21 and expressly to provide for errors in the 22 Vict., 0. 76, §? 19, 36. warrant itself; but only for error or (z) The point referred to in the answer was not appealed. It does not appear from the report in whose hand the marginal addition was made, and it is to be observed that the body of the record is not authenticated by the .subscription of each page. (a) This section of the Act is repealed by the Titles to Land Act, 1860, Digitized by Microsoft® INSTRUMENT OF SASINE. 305 646. "What is the criterion for iixing the date of registration of a sasine or conveyance ? (1) Before the Infeftment Act, the date and fact of registration were held to depend on the entry in the minute-hook.' (2) By that Act it was provided that the date of presentment and entry set forth on the instrument by the keeper of the record shall be taken to be the date of the instrument of sasine and in- feftment.^ (3) By the Titles to Land Act it is enacted that the date of entry in the minute-hook shall be held to be the date of registration.^ 647. What is the effect of an unrecorded sasine ; and by what consideration was the Court influenced in deter- mining the question ? It has been settled that an unrecorded sasine is absolutely void, although some persons may not be entitled to plead the nullity ; the ratio of the decision being, that great insecurity would be occasioned if a real right were held to result from an unrecorded sasine, for then the warrant, being exhausted, would be no longer effectual, and the grantee would be prevented from making his right secure against third parties by expeding and re- cording another sasine. ''(6) defect in the registration of t]ie war- ^ 8 and 9 Vict., c. 35, § 3. rant, although it enacts that the ori- * 21 and 22 Vict., c. 76, ? 19. ginal, or a new warrant, may he * Kihhles, 18th Dec. 1830, 9 S., used as the case may require. 233; aff. 5 W. and S. App., 553; 1 Maclaine, 16th June 1852, 14 Young, 16th Jan. 1844, 6 D., 370. D., 870. I 35, which now regulates the matter (see note [y), p. 803). There is no direct provision as to errors in the warrant of registration, which is left just as it was ; but the authority "of new to record the conveyance, &c., with the original or a new warrant of registration, as the case may require," seems necessarily to imply that, if requisite, an error in the warrant may he so corrected ; such is the practice; and in the case of Johnston (note [x), p. 303), no objection seems to have been taken to its competency. The pro- vision of the Act extends to the case of procuratories of resignation ad re- manentiam. In case of any error in any notarial instrument expede in virtue of the 8 and 9 Vict., cc. 31 and 35, or of the Titles to Land. Acts, or the recording thereof, the remedy is of new to make and record a notarial instrument or instrument of resignation ; Titles to I^and Act, 1858, J 31, and 1860, J 18. (b) The majority of the judges in Kibbles, cited, in which case the opi- U Digitized by Microsoft® 30(3 INSTEUMBNT OF SASINE. 648. What is sasine ^jropms manibus ; and what is necessary in the attestation of such sasines ? Sasine propriis manibus, now ohsolete, was when infeftment was given hy the superior personally on the ground, without the in- tervention of a bailie, whether there was an antecedent conveyance or not. "When such sasines proceeded on a separate conveyance, the attestation of the notary and witnesses was sufficient. But when there was no antecedent conveyance, the granter of the infeftment required to sign the instrument as well as the notary and witnesses ; because such sasines operated as conveyances, and there- cannot be an eiFectual conveyance without the written deed of the proprietor divesting himself, the instrument being merely the assertion of the notary.^ It has been held, however, that the instrument bearing the granter's subscription is effectual without a testing clause.^(c) IV. MISSIVES OF SALE, FEOGRESS OF TITLES, SEAECHES OF INCUMBEANCES, ETC. 649. What are the essentials of missives of sale ? (1) The missives must be probative ; (2) they must point out the subjects and the price, or afford in themselves materials for conclusively determining the subjects and the price ; and (3) they must import a finished obligation, without condition or quahfioa- tion on either side.^ 650. A party made an offer, by letter, for the purchase of an estate. Thereafter the seller posted an acceptance of the offer, while, on the same day, the offerer posted a retractation ; and the letters, both of acceptance and ' Bisk., 2, 3, 38 ; King, M., 12523. ' Menzies Lect., 827 (879). ^ Kibbles, M., 14314. nion of the whole Court was taken, seem to have rested their judgment on the ground that under a sound construction of the Act 1617 such a sasine was absolutely null, one test being, that the granter of the precept could have given another, which would have been effectual to a third party, and therefore that he could not be divested, and that so long as he could give a new precept the old one must remain in force. See note (w), p. 303. (c) The most common instance of such sasines in modern times was in the case of provisions by husbands to their wives. Digitized by Microsoft® MISSIVES OF SALE, ETC. . 307 retractation, were delivered on the following day ; Was the estate sold ? State the reason. In these circumstances it was held that there was a completed sale ; the grounds of the decision being, that the mere posting of a letter of recall does not make it effectual as a recall, so as from the moment of posting to prevent the completion of the contract by acceptance ; that the purpose of recall being to prevent ac- ceptance, such purpose fails if the acceptance has gone forth ; that it is sufficient if the acceptance has been put into the post office, after which it is out of the party's power ; and that it is not necessary to a completed acceptance that the letter reach its destination. '(d) 651. Where the lands were sold as " my property of A," and the minerals were not part of the seller's pro- perty, being reserved to his superior ; Was the sale eifectual ? No ; the purchaser being entitled to resile if not apprised at the time of the purchase that the property is held under any ma- terial reservation. ^(e) > Thomson, 13th Nov. 1855, 18 "■ Robertson, 27th Nov. 1841, 4 D., 1. D., 121. [d) This point may be explained a little more fully. The principle seems to be that the recall will fail if the acceptance has gone forth "before the notice of recall has reached, or ought in ordinary course to have reached," the offeree ; and that it is suiBcient for a completed acceptance that the letter, properly addressed, be dispatched so that in due and regular course it should reach the offerer within the time allowed, either by express stipu- lation or otherwise, for accepting, though, in consequence of casualties in the post ofSce, it should not actually reach him within that time, the offeree not being responsible for such casualties, provided it does reach the offerer dum res sunt integrae, by his not having, in the bona fide belief that his oflFer was declined, disposed of the property otherwise. How long (apart from any recall) an offerer would remain bound in the event of a duly posted ac- ceptance not reaching him in course is a question, on the whole circum- stances, for the determination of a jury ; Thomson, supra, note 2 ; Higgins, 2d July 1847, 9 D., 1407 ; aif. 24th Feb. 1848, 6 Bell, 195 ; Bell's Com., i, 326, 7. (e) In the case of Eobertson, cited, there was no averment by the seller that he had made the purchaser aware of the reservations ; but after the re- cord had been closed, and the cause had come by reclaiming note to the u2 Digitized by Microsoft® 308 MISSIVES OF SALE, ETC. 652. What are the leading provisions of the Act 1617, c. 12, in so far as it relates to the positive prescription ? That those persons, and their heirs and successors, who have possessed their heritages for the space of forty years continually and together, following and ensuing the date of their infeftments, without lawful interruption, shall never be troubled or disquieted in the heritable right and property of their lands by the Crown, or sulDJect-superior, or any other person pretending right by virtue of prior inf eftment, or on any other ground except falsehood ; pro- vided the possessor can shew a charter to himself or his predeces- sors, with sasine upon it, preceding the forty years; or, where there is no charter extant, instruments of sasine, one or more, standing together for the said space, proceeding either upon re- tours or precepts of dare constat. And the statute declares, that the years of minority of those against whom the prescription is pleaded shall not be counted. 663. What must be the prescriptive title in feudal subjects of a purchaser, heir, or adjudger ? (1) Purchaser. A charter (/) and sasine, with possession for forty years from the date of infeftment (g) uninterrupted by minority. Sasine alone is sufficient in the case of infeftment pro- priis manibus, not proceeding on a separate warrant, and an in- strument of resignation and sasine -mcn-e hurgi is of itself a good prescriptive title. (2) Heir. An instrument of sasine, founded on a retour or precept of dare, or an instniment of cognition and sasine more Inner House, the seller was allowed to lodge a minute " specifying what he averred and offered to prove in support of his statement, that the defender actually knew of the reservation " " and restrictions;" so that knowledge of the fact admitted or proved might perhaps bar the objection. Such reserva- tions are not unusual in feus for building, and the fact might be so patent and notorious as to render notice unnecessary. (/) It will be kept in view that not only charters, but dispositions, pro- curatories, precepts, and every deed of alienation serving as a warrant for sasine, are sufficient to ground prescriptive character. [g) If the party, though himself a singular successor, has a progress con- nected with heirs, it is not necessary to produce charter and sasine dated more than forty years back ; it is enough if he produce sasine or consecutive sasines in favour of heirs with whom he is connected together with convey- ance to himself; Stair, 2, 11, 20. Digitized by Microsoft® MISSIVES OF SALE, ETC. 309 hurgi, with possession for forty years, or a series of such sasines successively following each other, or connected by the uninter- rupted possession of apparent heirs. (3) Adjudger. Charter of adjudication, with sasine, followed by forty years' possession after expiry of the legal.^(/i.) 654. What must be the nature of the possession to found pre- scription ? (1) The possession must be continuously and together for forty years following the date of the first infeftment. (2) It need not be actual, but only civil. (3) It must be perfect in degree.^ 655. An heir succeeded in 1830 to his father, who had been infeft in 1818. The heir made up a title in 1845, and then sold the estate. In instructing a prescriptive title, are the years between 1830 and 1845 to be de- ducted ? State the reason. The period between 1830 and 1845, during which the heir possessed on apparency, is not to be deducted ; because his posses- sion is accounted a continuance of that of his ancestor.^ 656. By what methods may the positive prescription be in- terrupted, and what is the effect of the interruptions ? Positive prescription may be interrupted (1) viafacti; (2) by notarial protest ;({) and (3) by judicial process. Interruptions via facti, or by notarial protest, are effectual against the possessor of the ground only, and not against singular successors, unless an in- strument shall be extended and duly registered within sixty days. Interruption by citation, in order to have effect against singular successors, must be recorded within sixty days,(fc) and lasts only 1 Ersk., 3, 7, 5 ; BeU's Prin., 2010, » DufPs Feud. Conv., 178. ; sea. ' Caitcheon, M., 10810. (A) See Johnston, M., 10789, and Kobertson, 10th May 1815, Dow's App. 8, 108. {«■) Erskine (3, 7, 40) classes interruption by protestation and via facti as the same. {k) These registrations are required by 1696, c. 19, and the renewals by 1669, e. 10. Digitized by Microsoft® 310 MISSIVES OF SALE, ETC. for seven years, unless followed by an action which prolongs its effect for forty years.' (J) 657. What registers ought to be searched in making a search of incumbrances, with a view to a sale of the property ? (1) The General Eegister of Sasines, and the Particular Ee- gister of the district in which the lands lie, for forty years ; or, if the subjects are held in burgage tenure, the Burgh Eegister of Sasines for the same geriod. (2) The G-eneral and Particular Eegister of Inhibitions for forty years, against all the parties who have successively been pro- prietors of the lands during the prescriptive period. (3) The Eegister of Adjudications, for forty years. Sometimes a search is also made in the Eegister of Entails and the Eegister of Interruptions of Prescription ; and if it is sus- pected that inhibitions or adjudications may have been recently used, a search ought to be made in the Signet Books. 658. What burdens or incumbrances may not be disclosed by a search for forty years ? (1) Heritable bonds, or other securities constituted before the commencement of the prescriptive period ; which may have been kept up by payment of interest. (2) Adjudications before the prescriptive period, followed by possession. (3) Eeal burdens may be constituted by the titles of the pro- perty, without being noticed in the search. (4) Eestraint on alienation produced by Utigiosity, either by action or diligence.^ (5) Deathbed, which is a ground of reduction attaching to the property, and available against a purchaser.^ (6) Objections, on the ground of forgery, or force and fear, which are pleadable against an onerous disponee. 1 Bell's Prin., 2007. ^ Ersk., 3, 8, 97 ; Bell's Prin., " Ersk., 2, 12, 41 ; 2, 11, 7 ; Duff's 1786. Feud. Conv., 183. [I) ProTided it be prosecuted to compearance and judicial acts ; Wilson, M., 11330. This case is also reported, M., 10974, whei-e it appears that in the action pleaded on there had been " a debate and an interlocutor," which, though the interlocutor was one finding " No process." was held sufficient. Digitized by Microsoft® MISSIVES OF SALE, ETC. 311 (7) Claims of ancestor's creditors under the statute 1661, o. 24, which enacts that no right or disposition made hy an apparent heir, to the prejudice of the ancestor's creditors, shall be valid, unless made a fuU year after the defunct's death, an enactment which affects the heir's onerous deeds. ^ (8) Servitudes, whether positive or negative, may be consti- tuted without infeftment. (9) Tacks do not necessarily enter the register. (10) Terce, which is measured by the husband's sasine, but the widow's right does not enter the record. (11) Courtesy, constituted by law.^ (12) Succession duty, payable out of the estate of a deceased proprietor, attaches preferably to the lands. (m.) (13) Securities for repairs on subjects in burghs constituted by jedge warrants of the Dean of Guild. ^(o). 659. What is the effect of a stipulation in articles of roup, that the purchaser shall be satisfied with the title as it stands ? (1) Such a stipulation is effectual and binding on the pur- chaser where the title is feudally defective only, as the matter re- solves into a question of expense. (2) But it is not binding where the title is radically bad, the substantial right to the property be- ing wanting ; because the mere exposure of a property for sale implies a guarantee that the exposer has the rights 1 Mags, of Ayr, M., 3135 ; Taylor, * Anderson, 4th Dec. 1818, F.C. ; M., 8128.(m) Carruthers, 26th May 1825, 4 S., 34 ; 2 Duff's Feud. Couv., 185. Sorley's Trs., 14th Feb. 1832, 10 S., ' Ersk., 3, 1, 34. 319 ; Menzies Leot., 831 (m) See also Christie, 17th May 1839, 1 D., 745. (») This is under the 16 and 17 Vict., c. 51, § 42. It is provided (? 52) that " every receipt and certiiicate purporting to be in discharge of the whole duty" "shall exonerate a. bona fide purchaser," "notwithstanding any sup- pression or mis-statement in the account," and that no bona fide purchaser, " under a title not appearing to confer a succession, shall be subject to any duty with which such property may be chargeable," " of which he shall not have had notice." (o) Also minorities that may fall to be deducted from periods of pre- scription. Digitized by Microsoft® 312 MISSIVES OF BALE, ETC. 660. A purchaser, who was taken bound to relieve the seller of the sum in an heritable security over the property, having been sequestrated ; Is the creditor in the se- curity entitled to rank on his estate ? State the rea- son. No ; because the purchaser's obligation was not such as to make him personally liable to the holder of the security.' 661. Where the lands purchased are liable in real warrandice of other lands, is the purchaser entitled to insist for a discharge of that burden ? Yes ; unless the title to the principal lands is amply secured by prescription.^ 662. Where the missives contain a stipulation that the price is to remain a real burden on the property, but the seller dies before the purchaser's title was made real ; Whether is the price heritable or moveable ? The price is heritable destinatione; the matter depending on intention, which in this case is sufficiently expressed by the sti- pulation in the missives that the price was to remain a real burden.^ 663. May the purchaser reject a title, originally limited or defective, on which prescription has run ; or if the seller absolutely warrants the subject ? (1) The purchaser may reject a defective title, although pre- scription has run on it ; because the course of prescription may have been interrupted. (2) It is not a good answer that the seller absolutely warrants the subject ; because warrandice is merely personal.* 664. Is a seller bound to enter with the superior before dis- poning to a purchaser ? (1) Where the seller is infeft on a disposition, with an alter- native holding from his own author, who is alive and entered, the ' Kippen, 24th Feb. 1852, 14 D., « Mead, 27th June 1828, 6 S., 633. 1034. ' Durham's Tra., M., 16641. * Nairne, M., 14169 ; Durham's Trs., M., 16641. Digitized by Microsoft® MISSIVES OF SALE, ETC. 313 purchaser oaDnot insist on the seller's entry, because he may com- plete a public title, if he chooses, at an expense not greater than if the seller were entered.(j9) (2) But if the subjects are in non-entry by the death of the last entered vassal, the seller must enter with the superior prior to granting the disposition ; because the purchaser is not obliged to accept of a title which would force him immediately to enter as a singular successor.' 665. Is the seller bound to grant a disposition with a double holding ? In the case cited infra, an opinion was given, although the point was not expressly decided, that a seller is not bound to grant a disposition with a double holding, but only a conveyance a me, which is sufficient to enable the purchaser to take the seller's place.^ It is understood, however, that the case adverted to is on this point of doubtful authority. V. DISPOSITION, (r). 666. What is meant by public and base infeftments ? Infeftments granted by vassals holding immediately of the Crown were originally called public ; and those which flowed from their vassals were termed base, as being of a lower description, and further removed from the Grown. By a public infeftment is now ' Gardiner, M., 15087. = Miller, 1st Dec. 1848, 6 D., 149. (p) So far as the expense of entry is concerned, the purchaser would probably not be affected one way or other whether the seller was or was not entered. The reason rather seems to he because the purchaser cannot be called on to enter, and he is secured by his alternative holding ; but some conTeyancers are of opinion that even where the seller is infeft, as stated, and the fee is full, but not in his person, then, if there be a prohibition of subinfeudation, he is hound to enter to protect the title from challenge. This might, so far as the superior is concerned, depend on whether or not he was entitled to demand an entry from each purchaser, because otherwise he would have no interest, and might therefore have no right to enforce the prohibition. See Tailors of Aberdeen, supra, note 1, p. 280. (r) Some questions relating to Dispositions will be found in branch II. of this Part, " Original Charter." Digitized by Microsoft® 314 DISPOSITION. meant an infeftment a me, to be held of the disponer's supei'ior ; and a base or subaltern infeftment is de me, one holding of the disponer himself. 667. What is the effect of a completed conveyance de me, and of a completed conveyance a me ? (1) The conveyance de me creates a sub-vassalage, the dis- ponee being vassal to the disponer, while the latter, continuing to hold of his superior, is divested only of the dominium utile. (2) The conveyance a me, when completed, produces a change of vassals, the disponee being substituted in the place of the dis- poner, who is entirely divested.' 668. Explain the operation of the disposition with a holding a me vel de me. It enables the disponee, by taking infeftment on the convey- ance, or recording it in the Eegister of Sasines, at once to com- plete a base right or perfect feudal title to the dominium utile, held in blench of the granter in virtue of the de me holding, and convertible at any time by the. superior's confirmation, in virtue of the a me holding, into a holding of him, so as to substitute the disponee exactly in the place of the disponer.'' 669. What led to the cessation of subaltern rights in Eng- land ? The statute of Edward I, Quia emptores terrarum (1290), pro- hibited the creation of subordinate feus of a rank inferior to those held immediately of Crown vassals ; and the provisions of the sta- tute were extended by subsequent Acts to the immediate vassals of the Crown.' 670. Was subinfeudation anciently prohibited in Scotland ? In early times subinfeudation was permitted, as this form of conveyance was not regarded as an alienation. It is said that subinfeudation was prohibited by an Act passed in the reign of Eobert I, containing provisions similar to those of the English ' Menzies Leot., 60G (636). = Menzies Lect., 583 (609). ■■' Ersk., 2, 7, 16. Digitized by Microsoft® DISPOSITION. 315 statute Quia emptores terrarum, but the former statute, if ever it was in observance, fell soon into disuse.' 671. Enumerate the leading statutory relaxations of the feudal rule against alienation of the feu. (1) 1469, 0. 36, enabling oreditors-apprisers to obtain an en- try from the debtor's superior on paying a year's maill, as the lands are set for the time. (2) 1672, c. 19, extending the same power of obtaining an entry to adjudgers. (3) 1681, c. 17, and 1690, c. 20, entitling purchasers of bank- rupt estates at judicial sales to an entry on the same terms as adjudgers. (4) 1685, c. 22 (Entail Act), enabling proprietors to entail their land*, and substitute heirs, uncontrolled by the superior. (5) 20 Geo. II, c. 50, enabling heirs and singular successors holding a proouratory of resignation to compel the superior to give an entry by charter of resignation, on payment of the fees and casualties. (6) 10 and 11 Vict., o. 48 (Lands Transference Act), § 6, enabling heirs and disponees to enforce an entry by charter of confirmation . (s) (7) 21 and 22 Vict., o. 76 (Titles to Land Act), §§ 7 and 9, by which superiors are bound to grant writs of confirmation (f) and resignation. »Ersk., 2, 7, 8. (s) Professor More says, in reference to this enactment — " This is a very important provision, because it enables a party, where subinfeudation is pro- hibited, to grant an effectual disposition containing the alternative holding, which, being operative against all parties except the superior, he himself may now be compelled to confirm the right when required to do so ;" Lect., i, 493 : but it may be doubted whether this view is well founded, because, though the terms of the enactment are very broad, there is a proviso that every superior, when charged to give such entry, may in a suspension " show cause why he ought not to be compelled " to do so, and it might be a sufficient cause that the infringement of the prohibition of subinfeudation was injurious to his interests. (<) " Provided always that the party requiring such confirmation shall be entitled to demand an entry by confirmation." See note (s), supra. Digitized by Microsoft® 316 DISPOSITION. 672. How did a purchaser complete his title before the Act 1469, 0. 36? Before the Act 1469, a purchaser took two charters from the seller, one a me and the other de me. On the latter he immedi- ately took infeftment, and then brought an action of maills and duties against the tenants, which was equivalent to possession, thus securing himself in the property, while the former charter a me afforded the means for an entry with the superior, when his consent was obtained.^ 673. By what means did purchasers compel an entry with the superior after the Act 1469, c. 36 ? Where the superior refused to receive the purchaser, the seller granted to the latter a bond for a sum exceeding the value of the lands, upon which he led an apprising, and, in the character of a creditor, the purchaser compelled the superior, in virtue of the statute, to give him an entry as a vassal-appriser.^ 674. What was the criterion of preference of base rights be- fore the system of registration was established ; and what is now the criterion ? Before the establishment of the registers for publication, the criterion of preference of base rights was their date ; but as they might be kept secret, and facilities were thus afforded for fraudu- lent preferences, it was enacted by the Act 1540, c. 105, that whoever purchased lands on an onerous title, and obtained peace- able possession, should be preferred to those who claimed under a private or base right, though it should bear a prior date. This statute remained in force after the Act 1617, establishing the Ee- gister of Sasines, until the passing of the statute 1693, o. 13, by which it was enacted that all sasines should be preferable accord- ing to the priority of their registration, " without respect to the distinction of base and public infeftments, or of being clad with possession or not clad with possession."^ 675. What led to the disuse of the two charters a me and de me; and what disadvantage resulted from completing a purchaser's title on separate charters ? ' Duff's Feud. Conv., 144. =■ Ersk., 2, Y, 10, et seq. ; Menzies = Ersk., 2, 1, 6. Lect., 606 (635). Digitized by Microsoft® DISPOSITION. 317 The increased facility of transmission, arising from the Act 1469, by which superiors were compelled to enter creditors, com- bined with the confidence produced by the progress of the system of registration, gradually led to the disuse of the two charters.^ A disadvantage resulting from the completion of a purchaser's title on separate charters was, that a base fee was thereby created, and the subaltern right could be extinguished and consolidated with the superiority only by resignation ad remanentiam, whereas that result does not follow when the disponee's title is properly completed under a conveyance with an alternative holding. 676. Enumerate the clauses of the modern disposition. (1) The narrative ; (2) the dispositive clause ; (3) the term of entry ; (4) clause of tenendas,('((.) instead of an obligation to infeft, the latter clause being now unnecessary ; (5) clause of resigna- tion ; (6) assignation of writs ; (7) assignation of rents ; (8) clause of relief of feu-duties and public burdens ; (9) clause of warran- dice ; (10) clause of registration; (11) precept of sasine, now un- necessary; (12) testing clause. (a:) {See Questions on the Clauses of the Original Charter.) ' Menzies Lect., 609 [u) A clause of tenendas is not necessary; Titles to Land Act, 1858, § 5, and Titles to Land Act, 1860, § 36. (x) Some recent cases of competing rights under dispositions may be here noticed. I. Onekous and GKATuiTons Dispositions. 1. The proprietor of a burgage tenement disponed one storey of it to a purchaser in 1792, and in 1793 disponed the whole gratuitously, without ex- cepting that storey, to his wife, who in 1794 was infeft. The purchaser and his heirs possessed on a personal title till 1837, when the then heir was infeft. In 1842 a singular successor of the wife acquired the whole property, and in 1862 a purchaser from him, who had acquired right and been infeft in 1853, brought an action against the heirs of the purchaser of the storey, conclud- ing for (1) declarator of the pursuer's right to the whole house ; (2) reduc- tion of the defenders' title ; and (3) their removal from the storey. Held (1) that neither party had a title by prescription, the pursuers from want of possession, the defenders from not having been infeft for forty years ; and (2) that the defenders' title was preferable as in right of an onerous dis- ponee, while the original disposition 'by the common author to his wife was gratuitous. Observed that, the record disclosing two infeftments in the storey, it was the duty of the purchaser (1) to examine the warrants on Digitized by Microsoft® 318 DISPOSITION. 677. Is it necessary that the words " and my whole right, title, and interest, present and future therein," be added to the description of the lands ? which the sasines proceeded, and (2) to inquire which had been followed by possession ; Anderson, 13th Nov. 1863, 2 M'P., 100. 2. A and B, as " heirs -portioners and pro indiviso proprietors" of sub- jects, disponed them for a price to B, " whom failing, to her children etjually, with all right, title and interest ivhich A and B, " as heirs-por- tioners and joint proprietors pro indiviso" had in the subjects. A and B were truly not heirs-portioners, A having right to two-thirds, as representing her father and an aunt ; and B to one-third, as representing her mother, their sister, and neither had made up a valid title. B's eldest son and heir sub- sequently got from A a gratuitous disposition in his own favour of her share of the subjects, and after B's death made up a title to her share by passing her by and serving himself heir to his grandmother, and he also served A heir to her father and aunt. Held that the other children of B had, under the disposition by A and B to her, a sufiScient title to sue a reduction of the gratuitous disposition subsequently obtained by B's heir. Observed, per Lord Justice-Clert Inglis, that under a conveyance " with all right, title," &c., " the disponee is entitled to the benefit of every right to the lands be- longing to or vested in the disponer, in whatever character that right may belong to him. The disponee is entitled to have bis right fortified by all which the granter can do, no matter whether in the character set forth de- scriptivi in the deed, or under some other title in his person, whether per- sonal or feudal ;" Gilmour or Dunlop, 14th Jan. 1864, 2 M'P., 412. II. Ineffectual Disposition followed by Possession, Falsa Demonstratio. A, who was proprietor of a piece of ground with houses thereon, on the eve of entering into a second marriage, executed a disposition in favour of B, the only child of his former marriage, which bore to be granted " in name of tocher or bairn's part of gear." The deed was intended to convey part of the said ground and houses, but it contained no feudal clauses, and assigned an unexecuted precept which had no relation to the subjects conveyed or in- tended to he conveyed. It contained a clause of warrandice and an obliga- tion that " I have not granted nor shall not grant nor subscribe any writs or deed to the hurt or prejudice hereof," and iufeftraent and possession fol- lowed. A thereafter executed a disposition in favour of C and D, the child- ren of his second marriage, which embraced the subjects possessed by B under the conveyance in her favour. After the lapse of nearly eighty years the representatives of C and D brought an action against the representative of B to have it found and declared that thoy had right to the subjects which had been so possessed by B and her representative. Held that the pur- suers, as representatives of A, were personally bound to do whatever was ne- cessary to complete the title of the defender, who was accordingly assoilzied from the conclusions of tlie action; Burke, 27th March 1865, 3 M'P., 799. Digitized by Microsoft® DISPOSITION. 319 These words are not essential, but their absence might, in certain circumstances, occasion difficulty, as where the seller holds the property and superiority split, and upon dififerent titles ; it being doubtful whether, in that state of the seller's title, a dis- position wanting the words adverted to would transmit both fees. (2/) 678. Where the seller's title is burdened with conditions and jDrovisions which are appointed to be inserted verhatim in the subsequent deeds of transmission, under the pain of nullity ; Is full insertion of the conditions and provisions necessary ? The insertion of the conditions and provisions in the disposi- tion is unnecessary, it being sufficient to refer to them as set forth at full length in any recorded instrument or conveyance, forming part of the progress of titles of the lands. It is to be observed, however, with respect to reference for the conditions, &c., to a re- corded conveyance, that the Lands Transference Act authorises re- ference only to " the recorded instrument, whether of sasine or of resignation ad remanentiam, wherein the same were first inserted, or in any recorded instrument of sasine of subsequent date ;" and that the Titles to Land Act does not contain a similar provision authorising reference to a recorded conveyance, (z) so that the (y) The clause of " all right, title," &c., or, in the new form, " my whole right," &o., has very important eifects (see Ersk., 2, 7, 2, and 3, and oh- servations of judges in Love, 6th Nov. 1863, and Anderson, 13th Nov. 1863, and Gilmour, 14th Jan. 1864, 2 M'P., 22, 100, and 412, and Burke, 27th March 1865, 3 M'P., 799, supra, note (x), p. 317), hut not the one here sup- posed. Where the two fees have been split, as stated in this answer, they become, and, until consolidated, remain, separate rights or estates, requiring separate conveyances, unless the effect shall be worked off by possession and exercise of all the rights of ownership during the period of prescription on a progress of titles ex facie sufiScient to carry both fees, though really only of the superiority ; Bald, M., 15084 ; Bruce, M., 10805 ; Walker, 27th Feb. 1827, 5 S., 469 ; Wilson, 29th Nov. 1839, 2 D., 159. [z) The difficulty here referred to is removed by the Titles to Land Act, 1860, which provides (§ 31), "With reference to the first section of the Titles to Land Act, 1858," " that in all and each of the cases set forth " " in the 5th section of the Act 10 and 11 Vict., c. 48," "it is and shall be lawful to refer, as in the said Acts of the 10 and 11 Vict, is provided, to such real burdens or conditions or limitationti as are therein specified, as set forth at full length in any conveyance or notarial instrument, recorded in the ap- Digitized by Microsoft® 320 DISPOSITION. competency of sueli reference rests entirely on the enactment in the first section of the Act, that the recorded conveyance shall have the same legal force and effect in all respects as if it had been followed by an instrument of sasine duly expede and recorded. Notarial instruments expede in virtue of the Act are placed on a different footing, it being enacted by the twenty-ninth section that obligations, burdens, &c., appointed to be inserted in instruments of sasine, shall be inserted in notarial instruments.^ 679. What is the statutory import of the obligation to infeft a me vel de me ? It imports " an obligation on the disponer to infeft the dis- ponee, and his heirs and successors, upon their own expenses, by two several infeftments and manners of holding, one thereof to be holden of the disponer,- and his heirs and successors, in free blench, for payment of a penny Scots, in name of blench farm, at "Whitsunday yearly, upon the ground of the lands, if asked only, and freeing and relieving him and them of all feu-duties and other duties and services exigible out of the said lands and others, by their immediate lawful superiors thereof ; and the other of the said infeftments to be holden from the grantor, and his foresaids, of and under their said immiediate lawful superiors, in the same man- ner as the granter, or his predecessors or authors, held, hold, or might have holden the same, and that either by resignation or con- firmation, or both, the one without prejudice of the other. "^ ■680, What is the import of an obligation by the disponer to infeft the disponee " by two infeftments, and manners of holding, and that either by resignation or confirma- tion?" It imports an obligation to infeft a me only, as it refers solely to the modes of completing a public right.^ 1 10 and 11 Viot., c. 48, J 5 ; 21 - 10 and 11 AMct., c. 48, § 2. and 22 Vict., c. 76, §5 1, 29. ' Peebles, 9th Dec. 1825, 4 S., 290. propriate register of sasines, of the lands to which such burdens or condi- tions or limitations apply, and that such reference is and shall be equivalent to the full insertion in the disposition, conveyance," &c., " or other deed or instrument in which such reference occurs of such real burdens," &c. This provision applies also to the Acts 10 and 11 Vict., c:. 47, 49, 60, and 51. Digitized by Microsoft® DISPOSITION. 3'2l 681. What would be the effect of omitting the words a me from the holding of the conveyance ? If the words a me were omitted from the holding, and de me alone expressed, infeftment on the conveyance would create a base fee, holding permanently of the disponer, and incapable of being converted into a public right by confirmation. 682. Where no holding is expressed in the conveyance, what kind of holding is implied ? Where no holding is expressed, an a me holding is implied ;(o) " a base infeftment not securing against feudal deKcts and the mediate-superior."^ It is enacted by the Titles Act, that where no holding is expressed the conveyance shall be held to imply that the lands are to be holden in the same manner in which the granter of the conveyance " held or might have held the same •,"^ an expression which imports an a me holding.^ In the case cited, the words were, " to be holden in the same manner, and for payment of the like feu-duties, that I hold or may hold the same. ' '(i) 1 Buchan, M., 2258. lar import which occur in the 12th, 2 21 and 22 Vict., c. 76, § 5. 2l3t, 22d and 27th sections relative 3 M'Nair, 16th Feb. 1827, 5 S., to the manner in which the lands 372. The following clanse occurs mentioned in the said sections are in the Bill to extend and amend the to he held, are declared and con- Titles Act, adverted to at p. 99, note strued to mean that the lands are 2. " The words ' to be holden in to be held a me vel de me, where the the same manner in which the investiture of the lauds contains no granter of the conveyance held or prohibition against subinfeudation, might have held the same ; ' which or an alternative holding ; and a me occur in the fifth section of the Act, only, where the investiture contains and the words of the same or simi- such prohibition." (a) This seems to be correct in principle, but it will be observed that in Buchan there was no question as to the effect of a sasine following on a dis- position in the terms supposed. A party had obliged herself in a minute of sale " to obtain herself infeft in the lands validly and sufficiently, and being infeft, to dispone the estate ;' and it was held that that obligation imported a public infeftment. The real question was as to entering with the superior. (6) In M'Nair's case, cited, there followed after the words quoted, " and that either by charters of resignation or confirmation, or both, the one being always without prejudice to the other ;" and these words were held to be very important in the judgment in Peebles, supra, note 3, p. 320. This point is now regulated by the Titles to Land (Scotland) Act I860, X Digitized by Microsoft® 322 DISPOSITION. 683. What is the import of the clause, " I resign the said lands and others for new infeftment" ? (c) Before the Titles to Land Act came into effect, this clause was equivalent to a procuratory of resignation infavorem, and in con- veyances by a vassal to his superior it was equivalent to a procura- tory of resignation ad remanentiam} But in conveyances granted aftel- the Titles Act came into effect, a clause of resignation is held to import a resignation infavorem only, unless specially ex- pressed to he a resignation ad remanentiam? {See Charter of Eesignation.) 684. Is an obligation of warrandice, or an obligation to re- lieve of stipend and augmentations, transmitted by a general assignation of writs and evidents ? An obligation of warrandice being a right necessarily attach- ing to the lands, is transmitted along with them, and consequently passes by the general assignation of writs and evidents.' But it 1 10 and 11 Vict., c. 48, § 3. » Ersk., 2, 3, 81. 2 21 and 22 Vict., c. 76, § 5. whiot enacts that " the words ' to be holden in the same manner in which the granter of the conveyance held or might have held the same,' " in the 5th, and the words of similar import in the other sections of the Act of 1858, " shall be construed to mean that the lands are to be held a me vel de me where the investiture of lands contains no prohibition against subinfeu- dation or against an alternative holding, and a me only where the investi- ture contains such prohibition ;" 23 and 24 Vict., c. 143, § 36. It will be noticed that where, notwithstanding a prohibition, it is desired to take the benefit valeat quantum of an alternative holding, so as to divest the seller, it must be inserted in the disposition, as otherwise the statutory p].'ovjsion^wiJl exclude it. In judging of the expediency of inserting such alternative hold- ing, the enactment in § 38 of the Act of 1858, that where the investiture prohibits it, " nothing contained in this Act shall operate to authorise sub- infeudation or an alternative holding," must be kept jn view ; but tjie Act of 1860 provides " that where the investiture contains such prohibitfm, the conveyance or instrument shall, if an entry in the lands therein specified or thereby conveyed be expede with the superior within twelve months from the date of such conveyance or instrument, have the same preference in aU respects from the date of recording in the appropriate register of sasines the conveyance or instrument, as if the same contained an a me vel de me hold- ing, and the investiture did not contain any prohibition against subinfeuda- tion or against an alternative holding." (c) There is now generally added " or investiture." Digitized by Microsoft® DISPOSITION. 323 has been held that an obligation to relieve of stipend and aug- mentations is a separable right, and one "which does not run with the lands, and therefore is not transmissible by a general assigna- tion of writs, but requires a special conveyance. '(d) ' Horn, 23d Jan. 1841, 3 D., 435; tended to be permanent, and so in- rev. 21st Feb. 1842, 1 Bell's App., timately connected with the subject 1 ; Sinclair, 16th Jan. 1844, 6 D., of the feu that it can be aTailable, 378 ; rev. 14th Aug. 1846, 5 Bell's as a profitable obligation to no one App., 353. See Lennox, 14th July but him, it forms one of the condi- 1843, 5 D., 1357. This question tions of the feu-right, remaining iu has again arisen in the case of Sir all time pleadable by the vassal W. D. Stewart v. the Duke of Mon- against the superior, not as specially trose, in pendente, the parties stand- transmitted, but on the ordinary ing in the relation of superior and principles of mutual contract, and vassal. In addition to the plea, that through the mere force of their re- the obligation of relief is transmit- lation to one another, as superior ted by a general assignation of writs and vassal. The case has been re- and evidents " and whole clauses mitted by the judges of the First thereof," it is maintained for the Division for the opinion of the whole vassal, that the obligation being in- Court, (d) [d) The case of Stewart here referred to was decided 15th Feb. 1860, 22 D., 755, when it was held by a majority of one of the whole Court that the obligation transmitted to and was enforceable by a singular successor of the vassal against the superior without special assignation, as the obligation, occurring as it did in a feu-contract, was to be regarded as the counterpart of the vassal's obligations and an inherent condition of the feu. The judg- ment was afidrmed by the House of Lords, 27th March 1863, 4 M'Q., 499, 1 M'E., 25. It was also held in this case that the obligation might be en- forced beyond the value of the superiority. The result of the cases referred to seems to be — ■ .jr 1. Tha,t where the obligation is perfectly collateral to the subject-matter (ff^the contract, and the grantor is thereby divested of that subject-matter, lb that there arises out of the contract no privity of estate between the con- tracting parties, the obligation is merely personal, and not transmissible, except by special assignation, and any one claiming under it must show that it is so vested in his person. Of this the case of Horn [supra, note 1) was an example. There the contract was one of absolute sale, after which the seller and obligant ceased to have any connection with the lands, and the conveyance constituted no relation between the parties in reference to the lands, so that the obligation was merely personal, and transmissible only in the same way as other simple personal obligations. 2. That where the obligation forms a condition in a contract in which it i^the counterpart of other obligations undertaken by the other contracting party, and where the contract does not divest the obligant of the lands, but x2 Digitized by Microsoft® 324 DISPOSITION. 685. What warrandice are trustees bound to give to a pur- chaser ? "Warrandice from fact and deed qua trustees, with an obliga- tion on the heirs and representatives of the truster to warrant the conveyance at all hands, and they may be required to grant an assignation to the clause of warrandice in the trust-deed, if it contains such a clause. 686. In what cases is it unnecessary to record the whole conveyance in order to obtain a real right ; and how is such partial registration effected ? (1) Where a conveyance of lands is contained in a deed granted for further purposes and objects, such as a marriage-con- tract, deed of trust, or deed of settlement, it is unnecessary to record the whole deed ; but it is sufficient to expede and record leaves him with an interest and estate therein, and constitutes between the parties the relation of superior and vassal, so that there is a privity of estate between them, the right transmits to the vassal's successors in the fen, and can be enforced against the superior at all events where he is the personal representative of the granter of the obligation. This was the case of Stewart, supra, note 1 (see infra, 4) ; but — 3. That even where the obligation is in the original feu-right, if it is sought to be enforced against the personal representative of the granter, but who is not the superior, the vassal must show that the right has been trans- mitted to himself by assignation. This was the case of Sinclair [supra, note 1), where the action was brought against M. of Breadalbane, who was the personal representative of the granter, but was not superior of the lands, the right having been alienated, and where the plea of want of title by special assignation was sustained. 4. From some observations in Stewart in House of Lords, it might seem that the question as to the effect of the superior being a singular successor was intended to be reserved. The point might have been tried, and pos- sibly might have led to a different result in Sinclair, where Sir Ealph Anstruther, the superior at the time, was made a party to the action, but against whom the pursuer, for some unexplained reason, did not insist. As, however, a vassal has been allowed, without a special title (Stewart), to en- force the obligation against the representative of the granter, being the su- perior, while as against the representative, not being the superior (Sinclair), he was not allowed to do so, it may probably be assumed that the obligation will transmit and be enforceable against the superior, though not the repre- sentative of the granter, and that in regard to it the superior and vassal for the time will always stand in the same position to each other as the original parties did, with a privity of estate between them. See Campbell's Trs. 17 Nov. 1865, 4 M'P., 50. Digitized by Microsoft® DISPOSITION. 325 a notarial instrument, setting forth generally the nature of the deed, and containing at length those portions of it by ^vhich the lands are conveyed, and the burdens are imposed. (2) Where a deed conveys separate lands, or separate interests in the same lands, to the same or different persons, it is sufficient to expede and record a notarial instrument, setting forth generally the nature of the deed, and containing at length the parts of the deed by which particular lands are conveyed to the person in whose favour the instrument is expede, and the part which speci- fies the nature and extent of his right and interest with the real burdens, if any. (3) It is competent to insert in a conveyance, immediately before the testing clause, a clause of direction specifying the parts which the granter desires to be recorded, and the recording of such parts, together with the clause of direction, and the testing clause, and a warrant of registration, has the same eflfeot as if a notarial instrument containing such parts had been expede and recorded in favour of the party in whose behalf the conveyance is presented. But the whole conveyance may be recorded (e) or a notarial instrument expede and recorded, notwithstanding such clause of direction, provided the notarial instrument contains the whole parts directed to be recorded.^ 687. What should be the terms of the warrant of registra- tion, when the deed contains a clause of direction ? Eegister on behalf of A B, in terms of the within written clause of direction, and of the relative provisions of the Titles to Land (Scotland) Act 1858.(e) 688. Where the disponer has obliged himself and his heirs to infeft the disponee by two manners of holding, and the disponee has taken infeftment on the disposition ; 1 21 and 22 Vict., c. 76, §§ 2, 3. (e) This is now regulated ty the Titles to Land Act 1860, ? 25, which provides that if the clause of direction is intended to he acted on, there shall be " express reference thereto in the warrant of registration, if any, which, in terms of the recited Act or this Act, is otherwise required to be indorsed on such deed or in a separate warrant of registration," &c. ; " and in the absence of such express reference," &c., " such deed shall be engrossed in the register as if it had contained no clause of direction." Digitized by Microsoft® 326 DISPOSITION. May the disponer's heir be required to make up a title so that the disponee may continue to hold of him? No ; because the granting of the disposition containing war- rants enabling the disponee to take the disponer's place is full implement of his obligations to the disponee.' {See Completion of Disponee's Title.) VI. CHAETEES OF CONFIEMATION AND EESIGNATION. 689. What were the original purposes of the charter of con- firmation ; and what is its modern use ? The form of confirmation was anciently used by barons and prelates to ratify the grants of their predecessors, and likewise to express the superior's consent to subinfeudation. The modem purpose of the charter of confirmation is to dissolve the superior's relation to the vassal, and to substitute the new vassal in his place. ^ 690. Explain the difference in effect betwixt confirmation of an infeftment de me, and of an infeftment a me. (1) Confirmation of an infeftment de me (now obsolete) merely protected the sub-vassal from casualties inferring forfeiture of the feu, incurred by his immediate over-superior ; but it did not raise the sub-vassal into the vassal's place. (2) Confirmation of an infeftment a me completely divests the former vassal and invests the new vassal in his full right and place, the confirmation ope- rating retro to the sasine ; thus validating not only the title con- firmed but all subsequent (/) precepts of sasine and procuratories of resignation, with the instruments following upon them. 691. "What is the effect of a charter of confirmation which ' Dundas, M., 15035. 2 Eoss Lect., ii, 257; Duff's Feud. Couv., 212. (/) There seems to he some mistake here ; a confirmation of a particular title would not validate any other subsequent in date to it, nor, until the 10 and 11 Vict., u. 48, did it validate titles prior in date. Digitized by Microsoft® CONFIRMATION AND RESIGNATION. 327 confirms only the lands and the last sasine, there being a series of unconfirmed rights ? It operates as a confirmation in favour of the grantee, so far as regards the lands, of the whole dispositions and instruments of sasine, and other deeds, instruments, and writings of and concern- ing the same, necessary to be confirmed, in order to complete the grantee's investiture in the lands as immediate vassal of the su- perior ; and that although such deeds, instruments, and writings, may not be enumerated or set forth in the charter.i((?) 692. In a competition of rights completed by confirmation, on what date does the preference depend ? In crown charters it is the date on which the Great Seal is affixed ; ^ [h) and in charters by subjects-superior, the date of deli- very of the charter.^(«) 693. What are the provisions of the Titles to Land Act, relative to entry by confirmation, where the lands are held of a subject-superior ? (1) Where a confirmation of any deed or instrument recorded 1 10 and 11 Vict., o. 48, § 7. 3 Dalziel, 2 Br. Sup., 81. 2 Ersk., 2, 7, 14. {g) This is not quite accurate. Tlie provision of the 10 and 11 Vict, ap- plies only to the case where the charter confirms the lands, " and the instru- ment of sasine in favour of the person receiving such charter.'' Where there- fore the person entering was not himself infeft, as in an entry by resignation and confirmation, it was necessary to coniirm all the prior titles ; and it is important to keep this in view in examining titles made up under that Act as well as those made up prior to its date. (A) By 10 and 11 Vict., u. 51, § 15, it was provided that "the date of sealing shall in all cases he held and expressed to he the date of the charter," and, by the Titles Act 1858, I 32, sealing is declared unnecessary unless when required by the receiver of the charter {infra, note (p), p. 352); the date therefore now regulates the preference. («■) This was the rule prior to the passing of the Titles to Land Act 1860 ; but it is by that Act provided (§ 36) that where no manner of hold- ing is specified, and the investiture prohibits subinfeudation, " the convey- ance or instrument shall, if an entry " "be expede with the superior within twelve months from the date of such conveyance or instrument, have the same preference in all respects from the date of recording in the appropriate register of sasines the conveyance or instrument as if the same contained an a me vel de me holding, and the investiture did not contain any prohibition against subinfeudation or against an alternative holding." Digitized by Microsoft® 328 CONFIRMATION AND EESIGNATION. in the Eegister of Sasines is required, it is competent to the supe- rior to confirm such deed or instrument by a writ of confirmation, to be written on the deed, confirming the deed in favour of the grantee, but only in so far as consistent with the last (/) charter and the superior's own rights. (2) The confirmation so granted, is declared to be as effectual, to all intents and purposes, as a charter of confirmation under the former law and practice. (3) The superior is bound to grant confirmation in that form, if required so to do ; provided, 1, that the party is entitled to de- mand an entry by confirmation ; 2, that he produces to the supe- rior, if required, a charter or other writ shewing the tenendas and reddendo of the lands ; and 3, that he pays or tenders to the superior such duties and casualties as he may be entitled to de- mand. (4) The confirmation is held to confirm the whole prior deeds and instruments necessary to be confirmed, in order to complete the investiture of the party obtaining the confirmation.^ 694. What should be the terms of the writ of confirmation where the conveyance contains lands held of differ- ent superiors, an entry being required with one of the superiors, and the parties having agreed upon a dif- ferent reddendo ? (fc) I, A B, confirm this deed, but only in so far as it relates to the lands contained in the (describe the last charter), and in so far as consistent with the said charter and my own rights ; paying therefor yearly (specify the altered reddendo). In witness whereof, &o.(/) 1 21 and 22 Vict., c. 76, ? 7. [j) The reference in the writ need not be to the last charter. See Sche- dule E, annexed to Act. [k) It will he seen that this is not intended as a perfect style of such a writ. The reference for the lands should be, not to the charter, but to the deed coniirmed, as the writ and deed together should contain evidence of the lands to which the writ relates, and for this purpose the several lands in the conveyance should be numbered. [l) It was the practice to insert a testing clause in writs of confirmation and resignation by subjects-superior, though the schedules did not provide for it ; but it is now made imperative ; 23 and 24 Vict., c. 143, § 40. Digitized by Microsoft® CUNFIRMATION AND RESIGNATION. 329 695. What is the meaning of the words " perpetually con- firm," in the dispositive clause of the charter of re- signation — " I give, grant, and dispone, and perpe- tually confirm "? These words are expressive of the ratification of investiture given by delivery of the baton to the new vassal in the obsolete antecedent ceremony of resignation.-' 696. What are the object and contents of the qumquidem clause ? The object of the qucequidem clause is to express the modus vacandi, or the manner in which the property has returned to the superior, and the purpose for which the resignation has been made. It bears that the lands formerly pertained heritably to the former vassal, holden by him of the granter of the charter as immediate lawful superior thereof, and that they were resigned by him in virtue of the procuratory contained in the disposition in the hands of the superior, in favour and for new infeftment to be granted to the disponee.^ 697. What are the provisions of the Titles to Land Act, with respect to entry by resignation, where the lands are held of a subject-superior ? (1) Where a new investiture by resignation is required, it is competent for the superior to grant in favour of the party in right of the deed, which is the warrant for resignation, a writ of resig- nation, to be written on the deed, by which the superior, in re- spect of the clause of resignation, dispones to the disponee the lands contained in the deed, but only in so far as consistent with the last charter (m) and the superior's own rights. (2) The writ of resignation so granted is declared to be as ef- fectual, to all intents and purposes, as a charter of resignation under the former law and practice. (3) The superior is bound to grant such a writ of resignation, 1 Ross Lect., ii, 288. 2 lb. (m) The schedule requires reference only to " a charter or other writ." See note (J), p. 328. Digitized by Microsoft® 330 CONFIRMATION AND EESIGNATION. if required so to do, but subject to the same provisions as are made in the case of writs of confirmation.^ (4) The writ of resignation is held to operate as a confirma- tion of all prior deeds and instruments necessary to be confirmed in order to complete the investiture. (5) It is competent to record in the Eegister of Sasines the deed, with the writ of resignation, and a warrant of registration, and the recording of the same has the same force and effect as if a charter of resignation had been granted and followed by infeft- ment at the date of recording the deed and writ in favour of the party in whose behalf the deed and writ are presented for regis- tration. (6) The Act meant to provide that the recording of the deed, along with the writ of resignation, should not have the effect of an instrument of sasine following on the deed, but by the omis- sion of the word " not " from the enactment, the clause is rendered abortive.^(m) 698. Explain the effect of the omission from the proviso at the end of the ninth section of the Titles Act of the word " not," adverted to in the preceding question? The registration of the deed, with a writ of resignation there- on, having the effect of a double infeftment, would necessarily create a mid-superiority, by giving registration the effect of in- feftment on the deed in terms of sec. 1, and on the writ in terms of sec. 9.(o) 699. Is the superior, in all cases, entitled to insist on the in- sertion of the tenendas and reddendo in charters by progress ? The superior is not entitled to insist on the insertion of the tenendas and reddendo where these clauses are contained in any 1 See Ans. 693. 2 21 and 22 Vict., c. 76, 3 9. (n) This error is now remedied by the Titles to Land Act 1860, which provides (§ 33) that the part of the 9th section of the Act of 1858 referred to shall be repealed, and that " the recording of such deed, along with such writ, shall not have the effect of an instrument of sasine following on such deed." (o) See note (n), supra. Digitized by Microsoft® CONFIRMATION AND RESIGNATION. 331 charter or other writ recorded in any public register ; it being suf- ficient to refer to the tenendas and reddendo as set forth in such recorded writ.' 700. "What is the effect of a mid-impediment in connection with confirmation ; and how may such mid-impediments be produced by voluntary conveyance? A mid-impediment prevents the retroactive effect of confirma- tion ; and it may be produced by any intermediate right by which the disponer is divested before the investiture of the disponee is completed. And (1) where the disponee's title is an unconfirmed a me infeftment, a mid-impediment may be produced by a subse- quent infeftment de me, or a me vel de me, or an infeftment a me first confirmed ;(p) (2) where the disponee's title is an infeftment a me vel de me, the prior confirmation of a subsequent a me infeft- ment has the effect of preventing the disponee from making his infeftment public, and holding immediately of the superior. 701. In what cases may a charter of resignation and confirma- tion combined be used ? (1) Where a disponee has acquired right by disposition a me vel de me, or a me, with procuratory of resignation from one infeft but unentered, he may be entered with the superior by a charter of resignation and confirmation, by which the infeftment of the disponee's author is confirmed, and resignation made on the second procuratory, the infeftment being thus made public from its date, and the disponer's procuratory rendered a valid warrant for resig- nation in favour of the disponee. This form may be used what- ever may be the number of the base rights, care being taken that the confirmation shall end with the sasine in favour of the grantor of the disposition upon which the resignation proceeds. (2) Where a disponee has acquired right by disposition a me vel de me from one infeft, but not entered, and has taken infeft- ment on the disposition, it has been held (although the propriety of the decisions has been questioned) that he may complete a title 1 21 and 22 Vict., o. 76, a 10. {p) See provision of Titles to Land Act 1860, referred to in note (t), p. 327. Digitized by Microsoft® 332 CONFIRMATION AND KESIGNATION. by infeftment on a charter of confirmation and resignation, con- firming both his author's infeftment and his own infeftment on the disposition in his favour, and proceeding on the procuratory contained in that deed. The disponee has thus a double title, one by resignation and the other by confirmation ; and it has been de- cided that they do not destroy one another, since the obligation to infeft authorises entry by resignation or confirmation, or both, the one without prejudice of the other. ' 702. A, infeft but unentered, dispones to B by disposition a me vel de me, with procuratory and precept, and B takes infeftment and dispones to 0, who, without taking infeftment on the disposition, is entered by the superior by a charter of resignation and confirmation combined ; State the contents of the quasquidem clause. Which lands and others above described formerly belonged to B, holden by him in virtue of the confirmation hereinafter con- tained immediately of me as superior thereof, and have been re- signed by him into my hands, in virtue of a clause of resignation contained in a disposition of the said lands and others granted by him in favour of the said C, dated, &c.^ 703. Where a charter by progress does not- contain a clause reserving the superior's rights, is he precluded from insisting in rights competent to him in the dominium utile ? State the reason. No ; because superiors being bound to grant charters by pro- gress, they are given periculo petentis, and without prejudice to the superior's rights.' 704. What is the effect of an entry by a superior whose title • is personal ? The entry is absolutely null ; but it is capable of being valid- ated by the subsequent infeftment of the superior,(r) provided (1) 1 Stewart, 20th Feb. 1827, 5 S., 3 b. of Glasgow, M., 6516; Forbes, 883. See Menzies Lect., 768 (811). M., 6517. 2 Jur. St., i, 416. (r) Martin, 3d Feb. 1841, 3 D., 485. The expression " absolutely null ' Digitized by Microsoft® CONFIEMATION AND EESIGNATION. 333 that the superior's title he completed during his life ; (2) that the superiority has not in the meantime been carried off by the dili- gence of creditors; or (3) that it has not been conveyed to an- other disponee whose right has been made real. {See Completion of Disponee's Title.) VII. DISPOSITION AND ASSIGNATION. 705. In what cases is the disposition and assignation used ; and explain the difference bewixt the executive clauses of that writ and those of an ordinary disposition ? The disposition and assignation is used where the seller's title is personal. It contains all the clauses of the ordinary disposi- tion, with the exception of a procuratory of resignation and precept of sasine, the disponee's title being completed in virtue of the un- executed warrants in favour of the seller, the transference of which is the essence of the conveyance. 706. Might a personal right to lands be effectually transmit- ted without dispositive words before the Titles Act came into effect ? A personal right to lands might be effectually transmitted by a simple assignation of the unexecuted procuratory or precept with- out the use of dispositive words, provided it appeared from the terms of the assignation that its object was to transmit the right, and to enable the assignee to obtain infeftment.^ 707. What is the criterion of preference in the transmission of personal rights to land ? (1) While the rights continue personal, the date of the trans- mission (t) is the criterion of preference, personal rights to land being incapable of intimation. 1 Benton, 5tli Dec. 1837, 16 S., 184; aff.(«) 2 Bell's App., 214. is perhaps not quite appropriate, as such an entry could hardly admit of be- ing validated ; it is ineffectual unless, and until, validated. («) 18th Aug. 1843. (t) Bather " the date of the completion of the right by infeftment or its equivalents," because, if a subsequent assignee were to get delivery of the titles constituting the personal right, and complete his right, he would be preferable to a prior assignee whose right had not been completed. Digitized by Microsoft® 334 DISPOSITION AND ASSIGNATION. (2) But there is a distinction betwixt a personal right and a mere jus crediti to demand a conveyance. Where the latter has been transferred to an assignee, he may acquire a preferable title to it by intimation ; and it has been held that registration in the Register of Sasines of the writ importing a conveyance of the jus crediti is equivalent to intimation.^ 708. Enumerate the clauses of an instrument of sasine in favour of a party who has acquired right by disposi- tion and assignation. (1) The production to the notary of the conveyance contain- ing the warrant of sasine, and also of the disposition and assigna- tion. (2) The narrative of the dispositive clause of the former conveyance. (3) The deduction of the disposition and assigna- tion. (4) The recital of the obligation to infeft, and the insertion of the precept. (5) The giving of sasine in virtue of the precept and transmission thereof; and (6) the testing clause. 709. A, whose title is complete, dispones to B, with obliga- tion to infeft a me vel de me, procuratory and precept, and B is infeft. The lands are afterwards disponed with similar clauses by B to C, who transfers his per- sonal right by disposition and assignation to D ; and D enters with the superior by charter of resignation and confirmation. State the contents of the qiuequi- dem clause in the charter. "Which lands and others above described, formerly belonged to B, holden by him in virtue of the confirmation hereinafter con- tained immediately of me as superior thereof, and have been re- signed by him into my hands by virtue of a clause of resignation, contained in a disposition of the said lands and others made and granted by him to 0, dated the : In and to which dis- position the said D has right by disposition and assignation granted by the said C in his favour, dated, &c. 710. Where a party holds lands in virtue of an unrecorded conveyance, with a holding a me vel de me and precept 1 Edmond, 16th Nov. 1855, 18 D., 47 ; aff. 16th Feb. 1858.(u; (m) 20 D., 5, 3 M'Q., 116. Digitized by Microsoft® DISPOSITION AND ASSIGNATION. 335 of sasine ; What are the forms of conveyance by which he can transfer his personal right to a purchaser, and how can the latter make his right real without going to the superior? (1) Simple assignation of the precept of sasine, and infeftment in virtue of the precept and assignation. (2) Disposition and assignation, and infeftment as ahove. (3) Disposition with precept and infeftment, the right of the granter being afterwards completed by infeftment upon the origi- nal precept, which will render the purchaser's infeftment valid by accretion. (?;) (4) Assignation in the form prescribed by the Titles Act, either separate from or written upon the unrecorded conveyance, completed by recording the assignation along with the conveyance itself, and a warrant of registration thereon in the Eegister of Sasines, the assignation, at least when separate, being docqueted with reference to the warrant of registration. It appears to have been intended, that where the assignation is written upon the conveyance, the ordinary warrant of registration, Schedule A, No. 1, should be used; but the clause of the statute, declaring the effect of the registration, refers only to the warrant Schedule A, No. 2, directed to be vn^itten on the conveyance when pre- sented, with an assignation apart ;(a;) and it has therefore been recommended, for greater safety, that when the assignation is (v) By the doctrine of Accretion, " WhateTer right befalleth to the author after his disposition or assignation accresceth to his successor, to whom he had before disponed, as if it had been in his person when he disponed, and as if it had been expressly disponed by him ;" Stair, 3, 2, 1 ; Ersk., 2, 7, 3 and 4 ; Bankton, 3, 2, 16. In such a case as is put in the answer, it was quite ad- mitted that the principle operated, but in regard to a different case Bell ex- pressed a doubt ; he said (Prin., J 882) — " If the granter of the precept have at the time no right to the subject, but acquire a right by subsequent title, it may be doubted whether accretion will take place ;" but this view has been overruled ; Swan, 22d March 1866, 4 M'P., 663, where it was held that in such circumstances accretion did take place. In Munro, 4th July 1844, 6 D., 1249, which was a similar case, accretion was prevented by a mid-impediment. See question as to accretion, Gilmour, supra, note {x), p. 317. (?) The difficulty here referred to has, where there is a clause of direc- tion, been removed by the Titles to Land Act 1860, ? 25, and Schedule K ; but where there is no such clause, the matter remains as before in the case of lands not held burgage. See note infra to Ans. 747. Digitized by Microsoft® 33G DISPOSITION AND ASSIGNATION. ■written tcpon the conveyance, both forms of the warrant should be employed, and that the assignation should be dooqueted as directed by Schedule A, No. 2.i (5) Disposition and assignation, completed (1) by notarial instrument in favour of the purchaser, in the form of Schedule K, setting forth the conveyance, and the title by which he ac- quired right, and by recording the conveyance with a warrant of registration thereon, along with the notarial instrument in the Eegister of Sasines ; or (2) by notarial instrument in the form of Schedule B, setting forth the nature of the deed, and containing at length the portions of it by which the lands are conveyed, and also setting forth the title by which the party acquired right to the conveyance, and by recording the instrument alone in the Eegister of sasines.^ 711. What may be the terms of the docquet to be written on an assignation of an unrecorded conveyance ? This is the assignation referred to in the warrant of registra- tion, written on the disposition (describing it), and which is to be recorded along with this assignation, in virtue of the Titles to Land (Scotland) Act 1858. 712. What is the nature of the conveyance granted by (1) an heir unentered, whose ancestor was infeft, and (2) by one whose ancestor was not infeft ; and how does the disponee, in each case, acquire a real right ? (1) A conveyance by an heir unentered, whose ancestor was infeft, in addition to the ordinary executive clauses, contains an obligation by the granter to procure himself duly and lawfully served heir to his ancestor, and infeft and seised in due and com- petent form, and it likewise contains a procuratory for that pur- pose. In order to obtain a real right, the disponee will take in- feftment on the disposition, or record it in the Eegister of Sasines, and then cause the grantor's title to be made up by service and infeftment or registration, which will accresce to and validate his own right. (2) Where the ancestor was not infeft the conveyance takes the form of a disposition and assignation, and contains a procura- 1 21 and 22 Vict., c. 76, § 13. 2 /&., § 14. Digitized by Microsoft® DISPOSITION AND ASSIGNATION. 337 tory for the service of the granter as heir in general ; and a real right may be acquired either by infeftment on the assigned pre- cept or by notarial instrument, or by infeftment on or registra- tion of a charter of resignation in .virtue of the assigned procura- tory. But the service must be first expede, as it is essential that the decree be deduced in the sasine or notarial instrument, or in the qucequidem of the charter.' {See Completion of Disponee's Title.) VIII. DISPOSITION OF SUPERIORITY AND CONSOLIDATION. 713. In what respects is the superior restrained in regard to the disposal of the superiority ? (1) The superior cannot, without the vassal's consent, dispose of the superiority to be held of himself so as to interject a mid- superior ; because the vassal would be farther removed from the Crown, and would have one superior more to charge for an entry before he reached the Crown, on the failure of intermediate supe- riors. But such a conveyance is not a nullity, the objection being competent only to the vassal. Where the superior has succeeded by forfeiture to his vassal, and has thus become superior of the sub-vassal, he may revive the intermediate superiority unless he has given the sub-vassal an entry.^(y) (2) The superior cannot, without the consent of the vassal, split the superiority into parts where there is one fee and one reddendo, so as to impose on the vassal a plurality of superiors ; ' Duff's Feud. Con¥., 203 ; Men- « Stair, 2, 4, 5 ; Ersk., 2, 5, 4 ; zies Lect., 629 (661). BeU's Prin., 857. (y) This qualiflcation is not quite in conformity with the doctrine of Stair and Erskine. Stair says — ■" Superiors must receive and infeft their sub-Tassals upon the refusal or incapacity of the vassal, and may at any time thereafter receive the immediate vassal or his successor or another if the im- mediate vassal's right he extinct or acquired by the superior." Erskine says — " Such superior is entitled by the nature of the feudal contract to pro- vide a new vassal for himself in the room of the forfeiting person," "unless he has by some deed accepted the sub-vassal as his immediate vassal ;" tut for this effect probably a grant of the mid-superiority would be necessary ; merely receiving biiti as vassal is not sufficient ; Gordon, M., 10975 ; Argyll, M., 15013. y Digitized by Microsoft® 338 CONSOLIDATION. but the vesting of the superiority in two or more jointly, and pro indiviso, is not an infringement of this rule. Where separate subjects, held of the same superior, have been acquired by the same vassal, he is not entitled to demand that the several subjects shall be embraced in one charter, nor can he object to the superior selling the superiorities to different parties ; and although the superior should have included the separate subjects in one charter, having distinct quoequidem and reddendo, it is stUl competent to sell the superiorities separately. ' 714. Point out, and explain, the peculiar clauses of a disposi- tion of superiority. (1) In the dispositive clause the lands themselves are conveyed, the dominium directum being the radical right. But a conveyance of the superiority would be an effectual transmission. ^(z) (2) The obligation to infeft is usually a me only, as a holding de me would create an interjected superiority, to which, if perma- nent, the vassal is entitled to object. But an alternative holding has been recommended ; because, although the vassal did object to the title, it would be as easy to get confirmation of a disposition a me vel de me, as of one a me only, while the disponee would, in the meantime, have all the advantages of an indefinite infeftment.' (3) The disposition contains an assignation, not to the rents, but to the feu-duties and casualties. (4) The clause of warrandice contains an exception of the feu and other rights and infeftments of property granted by the dis- poner and his predecessors. 715. When the superiority and property of an estate are vested separately in the same person, how may they be con- solidated ? (1) Consolidation of- the two fees can be directly accomplished only by the proprietor, as vassal, making resignation ad remanen- 1 Stair, 2, 4, 5 ; Bell's Prin., 859. " Duff's Feud. Conv., 204. 2 Gardner, 9th Feb. 1841, 3 D., 534. (z) It was so held in Hamilton, 23d Feb. 1819, F.C. In Gardner, cited, opiniona to the same effect were expressed, but the point was not there de- cided. Digitized by Microsoft® CONSOLIDATION. 339 tiam of the donnnium utile, in his own hands, as superior.^ (2) But if there has been possession for forty years on the superiority title, which is a good title to the lands, the base infeftment will be worked off, and the two fees effectually consolidated by prescrip- tion,^ provided they stand destined to the same series of heirs. ^(c) 1 Bald, 8th March 1786, M., 15084; = Durham, M., 11220 ;(6) Wil- aff. 3d April 1787. M., 15089. son, 29th Nov. 1839, 2 D., 159, ' Middleton, M., 10944; Graham,(a) p. Lord Mackenzie.(c) 6th Aug. 1840, H. of L., 1 Rob. App., 347. (ffl) In Court of Session, Bontine, 2d March 1837, 15 S., 711. (4) Durham was a case, not of possession of property on superiority title, but of double titles, as to which see note (c) , infra. (c) The opinion of Lord Mackenzie here referred to states the view at that time generally entertained on the point ; but since then a case has oc- curred in which, with bis Lordship's sanction, a more extensive effect was given to prescriptive possession on the superiority title ; Dalrymple, 10th March 1841, 3 D., 837. Here a party who held the property of lands under one title, with a destination to heirs-male, acquired the superiority by a title with a destination to heirs-of-line. Both titles remained for some years per- sonal ; thereafter a feudal title was completed in the superiority, and the lands were possessed on it for more than forty years without any valid feudal title being made up in the property. Held that the possession on the supe- riority title extinguished the base title to the property ; per Lord Cuning- hame — " It is a general rule of law that when a party holds a diversity of titles to the same lands, his possession ought to be ascribed to that title which it is most for his interest to hold by. But it was obviously the in- terest of the Earls of Stair to ascribe their possession of Cults to their title of superiority rather than to the conveyance of the dominium utile. The title of superiority was the more unlimited of the two rights, as Linn's conveyance of the superiority was to heirs whatsoever, while Lord Bargany's disposition of the property was limited to heirs-male. On this ground, it is thought that in general the heirs were entitled to have their possession ascribed to the more general right constituted by the conveyance of the superiority rather than to a right limited to heirs-male, which was the destination of the dominium utile." Per Lord Moncreiff — " It is true that the resignation was apparently on the procuratory in the title of the superiority, but I think the argument sound, that in the circumstances the investiture in the lands was sufficient to carry the plenum dominium, holding the dominium utile to have been sunk in or consolidated with the superiority by long possession on the title of Linn." " In holding therefore that the sixth and seventh Earls, by their possession on the investiture 1791, extinguished any possible right under the separate title by the procuratory in the dominium utile, I am only holding that they must be considered as having possessed on that which was y2 Digitized by Microsoft® 340 CONSOLIDATION. 716. What is meant by resignation ad remanentiam ; and their test title, and to wMch no unlimited or less-limited title stood op- posed." Per Lord Mackenzie—" I am willing to adopt the opinions as to the extinction of the base right to Cults by prescription on the feudal title under the Crown." The principle here referred to seems to have been recognised in Bruce, 6th Deo. 1770, M., 10805 ; aiif., M., 10809, where it was found that " An in- feftment in fee-simple upon a precept of dare constat in the superiority of lands contained in a deed of entail, with possession maintained of said lands for forty years, but which, quoad the property thereof, had been originally acquired upon a different title, viz., the right of apparency, was sufficient by prescription to work off the limitations of the entail, and to establish a right both to superiority and property in fee-simple." If this case is to be held as authority on the point, there seems to be no necessity for the superiority and property being destined to the same series of heirs in order to consolidation. Besides the cases cited in the author's notes, see Harvie, 24th Jan. 1822, 1 S., 277; Walker, 27th Feb. 1827, 5 S., 469, F.C.; Elibank, 21st Nov. 1833, 12 S., 74. Graham is reported in Court of Session under name of Bontine, 2d March 1837, 15 S., 711. Another point may be here noticed, viz.. Double Titles. It sometimes happens that the same person succeeds to a property under two different titles, as heir of investiture, and as heir or disponee under a deed of settle- ment or marriage-contract, but is under no restraint, as by entaO, to possess exclusively under the latter. The general rule is, that every fee-simple pro- prietor having right under various titles is understood to possess equally by virtue of every title available to him, even though he should complete a title under only one of them, and the mere fact of his making up a title as heir-of-line does not defeat or evacuate the destination under a settlement ; Snodgrass, 16th Dec. 1806, F.C. Neither does possession for forty years on such a title ; Smith and Bogle, M., 10803 ; Durham, 11220 ; ZuiU, 4th March 1813 ; nor a trust-deed for payment of debt followed by reconvey- ance ; Ogilvy, 26th May 1837, 15 S., 1027. It follows from this, that though the party may sell, yet if he does not, and if the personal right comes at any time, however distant, to call to the possession "■ person dif- ferent from the heir of investiture, it will determine the right to the estate ; to prevent which the personal right must be taken up and evacuated by a new destination (which is called sopiting), and is held to be effected in all cases where a renewal of the investiture to a new series of heirs, or to heirs and assignees, is obtained by resignation and new charter; Molle, 13th Dec. 1811, F.C. If, however, one of the titles be a limited right, as an entail, the limita- tion may be wrought off and the destination defeated by prescriptive posses- sion on an unlimited title ; Makdougal, M., 10947 ; Kirkness, M., 10955 ; Ayton, M., 10956 ; and H. of L., M., 10959. The principle of the distinc- tion between this class of cases and that of Smith and Bogle, &c., supra, is that, where both titles are fee-simple, there is, until the two destinations Digitized by Microsoft® CONSOLIDATION. 341 what steps were necessary for completing such resig- nation before the passing of *he Titles to Land Act ? Eesignation ad remanentiam is a resignation of the feu by the vassal into the hands of the superior for his own behoof, in order that the right of property standing in the person of the vassal might be united and consolidated with the right of superiority in the person of the superior in all time coming. Before the passing of the Titles to Land Act the steps necessary for completing re- signation ad remanentiam were, (1) a procuratory of resignation ad remanentiam by the vassal, his own title being complete.^ (2) The ceremony of resignation in the hands of the superior, or his commissioner, or his known agent, by delivery to him of a pen by a procurator for the vassal, in presence of a notary and witnesses. (3) A notarial instrument of resignation ad remanentiam, contain- ing a narrative of the ceremony ; and (4) registratioii' of the in- strument in the Eegister of Sasines within sixty days of its date. 717. "What changes and modifications were introduced with respect to resignations ad remanentiam, by the infeft- ment Act 1845, the Lands Transference Act 1847, and the Titles to Land Act 1858, respectively? (1) By the Infeftment Act, the notary's docquet in the instru- I See Ans. 717, (2). separate, no one, valens agere, that is entitled to challenge, so as to interrupt prescription, while under an entail any heir can compel the one in posses- sion to make up his title under it. Whether or not the principle recognised in Dalrymple, awpra, may operate in cases of double titles (holding the right under a special destination, as to heirs-male, to be in one sense a more limited right) so as to modify the rule laid down in Smith and Bogle, &c., has not been decided ; but in Ogilvy, mpra. Lords Gillies, Mackenzie, and Corehouse, all expressed opinions unfavourable to the decisions in Smith and Bogle, &c., though they held themselves bound to give effect to them. It has been objected that the decisions in such cases as Smith and Bogle and Wilson, mpra, note 3, p. 339, are inconsistent, and so perhaps in one view of the effect of prescription they are, but the supposed inconsistency arises from not keeping in view that the first case was one of double titles to the same property, while the second was one of two fees, with one title to each, that is, the property and superiority standing on separate titles ; and that the Court have ruled that the two classes of cases fall under the oper- ation of different principles. Digitized by Microsoft® 342 CONSOLIDATION. ment was dispensed with ; and it was enacted that resignation might be accepted on behalf of the superior by his known agent for the time, as well as by a special commissioner.' (2) The Lands Transference Act enacted that, in conveyances by a vassal to his superior, the short clause of resignation should be equivalent to a procuratory of resignation ad remanentiam.^ (3) The Titles to Land Act provides (1) that it shall not be necessary to expede and record an instrument of resignation ad re- manentiam, on any procuratory, or on any conveyance contain- ing an express clause of resignation ad remanentiam ; but that it shall be sufficient for the superior to record the procuratory or con- ve3rance with a warrant of registration thereon, or to expede and record a notarial instrument in the form of Schedule B, the cere- mony of resignation, when either of these forms is used, being virtually dispensed with. (2) All instruments of resignation ad remanentiam may be in the new form, in Schedule D ; and when in such form, may be recorded at any time during the life of the party in whose favour the resignation is made. (3) A general clause of resignation in any conveyance shall import a resignation infavorem only, but it is competent to expede and record an in- strument of resignation ad remanentiam on a conveyance granted before the passing of the Act, and containing a general clause of resignation.^ 718. Does resignation ad remanentiam in the hands of a pro- prietor of an entailed superiority bring the dominium utile within the fetters of the entail ? It is thought that resignation ad remanentiam does not bring the property within the operation of the entail, unless the resig- nation is made under burden of the conditions and provisions of the entail, and the other requisites of the Act 1685 are observed for giving efficacy to the fetters.* 719. Where the feu is re-acquired by the superior. Is it charged with the burdens iniposed on it by the vas- sal? (1) Where the feu returns to the superior by the operation of » 8 and 9 Vict., c. 35, §8. =21 and 22 Vict., c. 76, || 4, 5, 19. « 10 and 11 Vict., u. 48, I 3. < Duff's Feud. Conv., 493. Digitized by Microsoft® CONSOLIDATION. 343 the feudal casualties, it reverts to him as free from burden as when the right was first granted. But the rale does not apply to liferent escheat, by which casualty no higher right accrues to the superior than was vested in the vassal himself at the time of its falling. "• (2) "When the superior re-acquires the feu by resigna- tion ad remanentiam, it continues to be charged with all the bur- dens imposed on it by the vassal.^ [See Completion of Disponee's Title.) IX. COMPLETION OF DISPONEE'S TITLE. 720. How may a dispense complete a public title under an ordinary disposition a me vel de me, with procuratory and precept, the disponer being infeft and entered ? (1) By registration or infeftment, and writ or charter of con- firmation; or (2) by writ or charter of resignation, and registra- tion or infeftment, respectively.^ 721. How may the disponee complete his title under a dis- position a me only ? Either by confirmation or resignation, as in the preceding case ; the only difference being, that infeftment or registration, where the holding is a me only, confers no real right till confir- mation. 722. How would the disponee complete his title if no hold- ing were expressed in the disposition ? Either by confirmation or resignation ; the holding being pre- sumed to be a me. {See Ans. 682. )(e) 723. How would the disponee complete his title if the hold- ' Ersk., 2, 5, 79. the mistake (adverted to in Ans. ' Ersk., 2,,7, 21. 698) occurring in the proviso at the ' It will, of course, be improper to end of the 9th section of the Titles use the writ of resignation in giving Act, is corrected by an Act of Amend- entries by subject-superiors, until m.ent.(d). (d) See note (n), p. 330. (e) And note (b), p. 321 Digitized by Microsoft® 344 CiOMPLBTION OF DISPONEE's TITLE. ing were de me, but the disposition coBtained a pro- curatory of resignation ? By resignation and registration, or infeftment. If the dis- pones were first to record the disposition, or take infeftment, it would still be necessary, in order to complete a public title, to ob- tain a charter (/) of resignation, and record it, or take infeftment ; but a split would thereby be occasioned ; which, however, might be removed by resignation ad remanentiam.{g) 124t. A disponee, after recording his disposition, which con- tains an a me vel de me holding, obtains a crown-writ of resignation, and records the disposition and writ of new ; What is the state of the title ? By registration of the disposition, the disponee holds the pro- perty base of the seller, and by registration of the disposition of new, with the writ of resignation, the disponee is vested with thp mid-superiority left in the person of the seller. The disponee thus holds a mid-superiority of the Grown, and the property of himself. 725. How may a disponee complete a public title on an or- dinary disposition a me vel de me, with procuratory and precept, the seller's title being a recorded but un- confirmed conveyance a me only ? The disponee's title may be completed, (1) By infeftment on, or registration of, his disposition, and by charter or writ of confirmation, either of which operates as a confirmation of all previous deeds necessary to be confirmed. (2) Passing over the seller's unconfirmed infeftment, the dis- ponee, having right to the precept in the seller's disposition by assignation to writs, may again take infeftment on it in his own favour, and obtain confirmation ;'(A) or he may expede a notarial instrument in the form of Schedule K (j) (Titles Act, § 14), and ' If tlie confirmation here were held to acoresoe to the seller's in- (/) Or writ. {g) A disposition such as is here supposed would be anomalous and in- consistent in its terms. What its effect might be must depend on the cir- cumstances which should lead to its adoption ; but it may be possible that simple resignation and registration would split the fees, as that seems hardly a competent mode of destroying the effect of the de me holding. (h) It seems hardly consistent with legal principle to make the extent of Digitized by Microsoft® COMPLETION OF DISPONEE'S TITLE. 345 record the same along with the disposition in favour of the seller, and a. "warrant of registration ; or he may expede and record a no- tarial instrument in the form of Schedule B,(7i;) and then obtain confirmation ; or (3) The title may be completed by a charter or writ of resig- feftment, this, of course, would be confirmation of his own and his an incompetent method of complet- author's infeftment, to the effect of ing the title, as the confirmation leaving invalidated a prior infeft- would operate retro to the date of ment flowing from the same author, the seller's sasine, and thus exhaust But the circumstances here are dif- the precept on which it proceeded. ferent, and it is thought that the In certain circumstances, it is true, confirmation of the purchaser's in- the effect of confirmation cannot be feftment would not accresce to the restricted so as to validate one sa- seller's sasine, the latter not being sine and leave another unaffected. a deed or instrument " necessary to Thus the holder of a right flowing be confirmed in order to complete the from a person whose infeftment had investiture of the party obtaining not been confirmed, cannot obtain the confirmation." (t). the operation of the statutory provision regarding confirmation dependent on, or it may be variable with, the object and intention (not even declared) of the person receiving the confirmation ; but apart from this question, the course here suggested seems incompetent. It is true that a public title un- confirmed does not divest the granter of the precept on which the sasine fol- lowed ; but supposing that sasine to be unobjectionable, the precept is ex- hausted, it has been used to the whole extent to which it was available, and does not admit of being thereafter assigned so as to be made the warrant of a new sasine. The recording of the disposition is by the Titles to Land Act declared to be equivalent to the expeding and recording of a sasine in favour of the person on whose behalf it is recorded. When it has been, as is here supposed, once validly recorded, it is to that effect "exhausted, and recording it again is incompetent, and would not vest the party with any right capable of being confirmed. The answer involves the mistake of supposing that there can be two valid sasines in favour of different persons proceeding on the same precept. (i) See note (h), supra, p. 344. (y) It is to be observed that § 14 of the Act and schedule K refer to unrecorded conveyances ; but in the case supposed, the conveyance having been recorded, the provision does not apply to it, and the Act contains no warrant for recording of new in such a case. It certainly could not be so where the sasine proceeded on a disposition with an alternative holding ; and, for the reason stated in the note (A), supra, p. 344, the fact of its being a public holding seems to make no difference. [k) If the views stated in the preceding notes (A) and (J) be correct, the instrument here referred to must proceed on the second disposition alone. See also note to Ans. 917. (') Digitized by Microsoft® 346 COMPLETION OF DISPONEE's TITLE. nation on the proouratory, in favour of the seller, the purchaser's connecting title being deduced in the charter or writ, and by in- feftment or registration ; or (4) By writ of resignation on the procuratory by the seller, the writ operating as a confirmation of all deeds necessary to be confirmed, and by registration ; or (5) By charter of resignation and confirmation, confirming the recorded conveyance in favour of the seller, and resigning on the procuratory in the disposition in favour of the purchaser ; and by infeftment or registration.^ 726. A, infeft but unentered, dispones by ordinary disposition to B, who obtains and takes infeftment on a charter of resignation proceeding on the procuratory in the disposition on which A had already been infeft, as having right to it by assignation ; What is the state of the title, and how is the defect to be remedied ? (1) By this title the base fee constituted by A's infeftment is left behind, B being A's superior in that fee, and nothing being carried but the bare mid-superiority. (2) In order to remove the defect in the title, B should re- cord his disposition, by which another base fee will be constituted, held by him of A, who will thus be in right of a mid-fee between the two fees held by B. He will then grant in favour of himself a writ of confirmation of the registered disposition in his favour, which will evacuate the mid-fee, and he will then consolidate the two fees held by him, the one of the over-superior, and the other of himself, by resignation ad remanentiam." 727. A, whose title was complete, disponed to B by disposi- tion with an a me vel de me holding and clause of re- signation. He recorded his disposition in the Eegis- ter of Sasines, and then obtained a charter of resigna- tion. State the modes in which B's title may be completed. B's title may be completed (1) by writ of confirmation by the ' See Note 3, p. SiS.{l) ' Dufif's Feud. Conv., 244. [l) And note (»), p. 330. Digitized by Microsoft® COMPLETION OF DISPONEE's TITLE. 347 superior, the charter of resignation being dropped from the pro- gress ; or (2) by recording tire charter of resignation ; which, however, occasions a split, that must be removed by consolida- tion. 728. A, a crown vassal, having a complete title, sold to B, who was infeft ; B sold to C, who was infeft ; and C sold to D, who was not infeft, the dispositions being in the ordinary form, with holdings a me vel de me, and D entered with the Crown by resignation, before the passing of the Titles Act ; What form of writ did he then obtain, and what form of writ would he have got if his entry had been subsequent to the Titles Act ? (1) Before the Titles Act the form of writ was a charter of resignation and confirmation, confirming B and C's infeftment, and proceeding on the procuratory in C's disposition to D. (2) Under the Titles Act, the form of writ is a writ of resig- nation, which has the effect of confirming the whole prior deeds and instruments necessary to be confirmed in order to complete the investiture. 729. B, infeft, holding of A, sells to C by disposition, with a holding a me vel de me ; C is infeft, and sells to A ; Specify the executive clauses of the conveyance, and state how A's title ought to be completed ? (1) The executive clauses of the conveyance by C to A are the dispositive clause, and the clause of resignation ad remanen- tiam. (2) A's title will be completed as follows : — 1, confirmation by A of C's infeftment ; and 2, registration of the disposition by C to A, with a warrant of registration thereon, in the Eegister of Sasines. 730. A is superior of B's feu. B sells to 0, who sells to D, both dispositions having an a me vel de me holding, and being duly recorded. D then purchases the superiority from A, and completes his title thereto ; What steps are necessary for vesting in him the pro- perty and superiority as one fee ? Digitized by Microsoft® 348 COMPLETION OF DISPONEE'S TITLE. (1) A writ of confirmation by D in favour of himself, to ex- tinguish the infeftments of B and C, and to make his own infeft- ment public. (2) Procuratory of resignation ad remanentiam by D, as vassal, in favour of himself as superior. (3) Kegistration of procuratory, with warrant of registration in the Eegister of Sasines.(m) 731. Lands were sub-feued by A to B, disponed by B to U, and sold by C's heir to D, a singular successor of A in the sujjeriority ; each transfer, both of property and superiority, having been fully but separately completed, and the two fees consolidated, all after the passing of the Lands Transference Act, but prior to the Titles to Land Act ; What steps were necessary for these purposes ? (1) Transmission of the property — 1 . Feu-disposition by A to B de me, and infeftment. 2. Disposition by B to a me vel de vne, or a me; and [a] in- feftment and charter of confirmation by A to ; or [J] chai-ter of resignation by A to C, and infeftment. 3. Precept of dare constat by A to C's heir, and infeftment ; or special service by C's heir to his ancestor, and infeftment on decree of service and charter of confirmation by A to C's heir. 4. Disposition by C's heir to D, with a general clause of re- signation which implied resignation ad remanentiam: (2) Transmission of the superiority — Disposition by A to D a me or a me vel de me; and [a] infeft- ment and charter of confirmation by A's superior to D ; or [J] charter of resignation by A's superior to D, and infeftment. (m) The purchase and title in this case might he completed also as fol- lows : — 1. A wi'it of confirmation by A in favour of D, which would evacuate the mid-superiority and make D hold immediately of A. 2. Deed of relinquishment by A (in consideration of the price) in favour of D. 3. Acceptance by D written thereon. 4. Writ of investiture by the over-superior also written on the deed. 5. Kegistration of Nos. 2, 3, 4, and 5 in the Eegister of Sasines ; 21 and 22 Vict., 0. 76, II 23, 24, and Schedule N. Digitized by Microsoft® COMPLETION OF DISPONEE's TITLE. 349 (3) Consolidation — Instrument of resignation ad repianentiam in favour of D, proceeding on tte disposition by C's heir in his favour, and regis- tration thereof in the Eegister of Sasines within sixty days. 732. A, publicly infeft, disponed by disposition a me vel de me to B. After B had registered his disposition, A granted a second disposition for a full price to C, who entered with the superior by resignation and infeft- ment ; What is the nature of the rights of B and C respectively ? B's right to the property is secure, but his infeftment by re- gistration being base there was left a mid-superiority in the person of A, which was vested in C by his infeftment on the charter of resignation. By C's entry with the superior B is prevented from making his infeftment public, and he will hold blench of G for an elusory duty. 733. A, publicly infeft, sold by disposition a me vel de.me to B. After B had registered his disposition, A's heir made up a title to the mid-superiority by precept of dare and infeftment ; Does the title made up by A's heir create a mid-impediment, preventing the com- pletion of B's title with the superior? No ; because the heir is the same person in law as his ances- tor, being bound by his deeds, and liable in warrandice of A's conveyance to B. This is merely a pressing forward of the right of mid- superiority into the person of the heir.^ 734. A, publicly infeft, dispones to B by disposition a me vel de me, with procuratory and precept. Without taking infeftment, B dispones by disposition and assignation to C, and thereafter grants a second disposition and assignation to D, who immediately takes infeftment on the assigned precept. C then resigns upon the assigned procuratory, and obtains a charter of resig- nation from the superior, and infefts thereon ; What is the state of the title ? ' Fullerton, 22cl Nov. 1833, 12 S., 117. Digitized by Microsoft® 350 COMPLETION OF DISPONEE's TITLE. The dominium utile is vested in D, held by him blench of C, whose infeftment carries nothing more than the interjected sujpe- riority which was left with A after D's infeftment. 735. A, publicly infeft, dispones to B by disposition a me vel de me, with procuratory and precept. Without taking infeftment, B dispones by a similar disposition to C, who takes infeftment on the precept therein ; What is the effect of the infeftment, and how is C's title to be made complete ? C's infeftment is null, as the precept upon which it proceeds was granted by one non Jiabente potestatem, his title being personal. C's title may be completed (1) by a charter of resignation, pro- ceeding upon the procuratory contained in the disposition by A to B, and assigned to C by the assignation to writs in his dispo- sition, and infeftment on the charter ; or (2) by taking infeftment on the assigned precept contained in the disposition by A, and obtaining confirmation, C's first infeftment in these two cases being allowed to lapse ; or (3) by infefting B upon the precept in the disposition by A, which will render C's infeftment on B's disposition valid by accretion, and obtaining confirmation of both sasines. 736. A, possessing upon a personal title, granted an heri- table security to B, and afterwards an heritable secu- rity to C, upon which he immediately took infeftment. B, discovering that A was not infeft, got infeftment expede in favour both of A and himself; What was the effect of the infeftments of A and B ? A's infeftment accresoed first to C's infeftment, and validated it from its date, according to the rule jus superveniens aiidori accrescit successori, and, being prior in date to B's infeftment, was thus rendered the preferable security. '(m.) 1 Paterson, M., 7775. (n) But had B, instead of getting A infeft, expede an infeftment in his own favour, proceeding on his bond and the precept in the disposition in favour of A, to which B had right under the assignation to writs in his bond, his security would have been preferable to C's. See Melvin, 17th June 1843, 5 D., 1217. Digitized by Microsoft® COMPLETION OF DISPONBe's TITLE. 351 737. A, a crown vassal, whose title is complete, dispones to B a me vel de me, with procuratory and precept. B obtains a crown charter of resignation, but, without being infeft on the charter, takes infeftment on the precept in the disposition. B then grants a disposi- tion de me to C, on which he is infeft, and B after- wards takes infeftment on the charter of resignation. C then sells to B. "What is the state of the title, and how may B's right be completed? By the infeftment of B on the disposition by A a base fee was constituted, held by B of A ; by the infeftment of C on the disposition by B another base fee was constituted, held by C of B ; and by the infeftment of B on the charter of resignation he was vested with the superiority left in the person of A. There are thus three fees, namely, — (1) a superiority held by B of the Crown ; (2) a superiority held by B of himself ; and (3) the pro- perty held by G of B, the last being incapable of being made public by confirmation, as it proceeds on a disposition de me only. B's title may be completed as follows : — (1) B will obtain from C a disposition, with a procuratory of resignation ad remanentiam ; (2) he will execute and record in the Kegister of Sasines a pro- curatory of resignation ad remanentiam in his own favour of the mid-fee held of himself ; and (3) he will record in the Eegister of Sasines the disposition in his favour by C.(o) X. CKOWN CHAETEES. 738. What was the procedure for obtaining a crown charter before the passing of the Crown Charters Act ? A signature, containing the substance of the charter required, was left with the Presenter of Signatures, and during term time presented to the Judges in Exchequer. It was afterwards revised by one of the Judges in Exchequer, who, along with the Writer to the Signet acting as agent, compared the description and red- dendo with the last charter. The signature was then signed by the Barons of Exchequer and the Presenter, and, after it had (o) For mode of completing title of general disponee, see Ans. 894. Digitized by Microsoft® 352 CROWN CHARTER. been recorded in the Exchequer Eecords, it was taken to the office of the G-reat Seal and stamped with the cachet, which was a stamp hearing a/ac simile of the royal sign-manual. The signa- ture, thus completed, was the warrant for a Latin precept under the Signet, directed to the Keeper of the Great Seal, and the pre- cept was the immediate warrant of the charter, which was pre- pared in the office of the Director of Chancery. The Great Seal was then affised, and a note of the date of sealing written on the charter and signed by the Keeper ; and after the date of seal- ing had been entered in the register kept in Chancery, it was ready for delivery.^ 739. What was the procedure introduced by the Crown Charters Act ? A draft of the proposed charter is prepared and indorsed by a Writer to the Signet, and lodged at any time with the Presenter of Signatures, together with a short note, praying for a charter in terms of the draft ; and, along with such note and draft, there must be lodged the last crown charter, retour, decree of service, or chancery precept of the lands, and all the title-deeds subse- quent thereto, together with evidence of the valued rent, when necessary, and an inventory and brief of the titles ; the date of lodging the note being marked thereon by the Presenter or his clerk. The draft is revised by the Presenter along with the agent, and, after revisal, it is docqueted by both as approved ; the composition being indorsed on the draft, and certified by the Presenter and Auditor of Exchequer. It is then transmitted to Chancery, where it is engrossed, and, after being sealed with the Great or Union Seal,(^) and recorded in Chancery, it is delivered to the applicant on payment of the duties and fees.^ 740. Where the applicant is dissatisfied with the revisal, what is his remedy ? ^ Menzies Lect., 182 (827). ' 10 and 11 Vict., c. 51, ? 2, et seq. (p) By the Titles to Land Act, 1858, § 32, sealing of crown charters is in all cases dispensed with, " unless the receivers of such charters shall re- quire the appropriate seal to be appended ;" and the statement in the test- ing clause with reference to the seal, " that the same is accordingly ap- pf'uded," is directed to he omitted except where the " seal is actually appended." Digitized by Microsoft® CROWN CHARTBR. 353 He may lodge a note of objections with the Presenter of Sig- natures, which are disposed of by the Judge in Exchequer, and his judgment, repelling or sustaining the objections, is the war- rant for the preparation of the charter. '(g) 741. What is the procedure when application is made for a charter containing a clause of novodamus f The party applying for the charter must, previously to lodging the note in the office of the Presenter of Signatures, obtain the consent of two of the Commissioners of Woods and Forests, and written evidence of such consent must be produced along with the note. The charter is then revised and engrossed as in the ordinary case, but, before being sealed, it is lodged with the Queen's Kemembrancer, and transmitted by him for the royal sign-manual and the signatures of three of the Lords of the Trea- sury .^(r) 742. What is the procedure introduced by the Titles to Land Act for obtaining a new investiture by confir- mation and by resignation in lands held of the Crown ? (1) Where a new investiture by confirmation is required, it is competent to apply to the Presenter of Signatures, in the same manner as a charter of confirmation was applied for according to the former practice, for a writ of confii-mation to be written on the recorded deed or instrument of which confirmation is wanted ; and' on the Presenter of Signatures being satisfied that the party applying would be entitled to a charter of confirmation, a writ of confirmation is written on the deed and signed by the Presenter 1 10 and 11 Vict., c. 51, § 11, et seq. ' lb., § 22. (q) The duties here referred to are now discharged by the Lord Ordinary in Exchequer causes ; 19 and 20 Vict., c. 56, J 18 ; and as all interlocutors pronounced by him are subject to review of the Inner House, and such in- terlocutors, and also interlocutors of the Inner House, are subject to appeal to the House of Lords (§ 20), probably judgments in regard to crown charters may be submitted to review, or appealed. (r) The provision of the Act is that the charter shall be transmitted " for the sign-manual of Her Majesty, and the signatures of the Lord High-Trea- surer, or of the Commissioners of Her Majesty's Treasury, or any three of them." Z Digitized by Microsoft® 354 CROWN CHARTER. of Signatures, and the amount of fees, duties, and casualties is marked on the deed and certiiied by the Presenter and the Audi- tor of Exchequer. On payment of the fees, duties, and casualties, the confirmed deed is officially transmitted to the Director of Chancery, who enters or causes to he entered, in a book kept for the purpose, entituled the Eegister of Confirmations and Resigna- tions, 1st, the leading name or names, or other short distinctive description, of the lands ; 2d, the date of recording the deed or in- strument ; 3d, the register in which it is recorded ; ith, the name of the party in whose favour the writ of confirmation is granted ; 5th, the date of the confirmation ; 6th, the name of the last entered vassal ; and, 7th, the date of his entry ; — and the deed is then de- livered to the applicant. The confirmation, so granted, is declared to be as effectual as a charter of confirmation, and to confirm the whole prior deeds and instruments necessary to be confirmed in order to complete the investiture.' (2) The procedure for obtaining a new investiture by resigna- tion is similar to that above detailed. Nos. 2 and 3 of the parti- culars to he entered in the Eegister of Confirmations and Eesigna- tions, in the case of confirmation, are inapplicable to resignations, and these of course are omitted. The writ of resignation operates as a confirmation of the whole deeds and writs necessary to be confirmed ; and the recording of the deed and writ, with a warrant of registration in the Eegister of Sasines, has the same effect as if a charter of resignation had been granted, and infeftment expede thereon, and recorded at the date of recording such deed and writ ; and the Act declares that registration shall not have the effect of sasine on the deed.^ 743. In what respects is the qucequidem of a crown charter of resignation different from that clause in a charter of resignation by a subject-superior ? The qucequidem of a crown charter of resignation must set forth the titles of the last vassal, and state that the lands were re- signed upon the date of applying for the oharter,^(s) such clauses being unnecessary in charters by subjects-superior. > 21 and 22 Vict., c. 76, ? 6. =10 and 11 Vict, c. 51, i 17, and ' ib.,i 8. Schedule C, No. 1. (:) But " without the necessity of specially setting forth such date.' Digitized by Microsoft® BURGAGE CONVEYANCES. 355 XI. CONVEYANCES OF SUBJECTS HELD IN BURGAGE TENURE. 744. What is the nature of the tenure of subjects held bur- gage ? Subjects held in burgage tenure are held by the individual proprietors as vassals immediately of the Crown, for the service of watching and warding, the bailies of the burgh being Her Majes- ty's bailies or commissioners, under the Act 1567, c. 27, for giving infeftment.'(f) 745. Point out and explain the peculiarities of a disposition of burgage subjects, as contrasted with an ordinary disposition, according to the form in use before the passing of the Titles Act, of subjects held in feu. Eesignation in the hands of the magistrates, as the Crown's bailies, being the only competent method of transmitting burgage subjects, the obligation to infeft contained in the disposition is not a me vel de me, but " to be holden of Her Majesty in free bur- gage," and the deed has no precept of sasine, because in the cere- mony of infeftment (now superseded by the equivalent form of in- vestiture by the town-clerk) the magistrate gave sasine by his own hand. In other respects the clauses of the two dispositions are similar.(it) 746. How was the disponee's title completed before the In- feftment Act of 1845 ? The disponee's title was completed by a double ceremony, of resignation and infeftment, upon the ground of the subjects ; the resignation being made in the hands of one of the magistrates, as for the sovereign, by the symbols of staff and baton ; and sasine being given by the magistrate, by deliveiy of the symbols of earth and stone and hasp and staple. The res gestce were embodied in 1 Ersk., 2, 4, 9 ; Menzies Leot., 787 (834). {t) If a royal burg]i is suppressed, the holders of tenements by burgage tenure still continue to hold of the Crown, under a change to blench tenure ; Urquhart, 17th Jan. 1758, F.G. (u) The obligation as to public burdens is "to free and relieve of all cess, annuity, ground-annual, and other public and parochial burdens." z2 Digitized by Microsoft® 356 BURGAGE CONVEYANCES. one instrument of resignation and sasine, authenticated by the town-clerk, who has the exclusive privilege of acting as notary in burgage infeftments,(aj) and the instrument was recorded in the Burgh Eegister of Sasines, within sixty days of its date.' 747. What changes were introduced by the Infeftment Act 1845, and by the Act for the Transference of Burgage Subjects 1847, in the forms of transmission ? (1) The Infeftment Act dispenses with the notary's docquet in the instrument of resignation and sasine, and declares that the delivery of symbols may be given either on the ground of the sub- jects or within the council-chamber of the burgh by delivery of a pen.^ (2) The Act for the Transference of Burgage Subjects dis- penses with the ceremony of resignation and infeftment, and de- clares that it shall be lawful and competent to resign and obtain infeftment in the subjects by presenting the disposition or other warrant to the town-clerk, being a notary, and by his giving sasine by subscribing and recording an instrument in the form annexed to the Act, the instrument being registrable at any time during the life of the party in whose favour it is expede.'(y) ' Ersk., 2, 3, 38 ; Duff's Feud. » 8 and 9 Vict., c. 35, § 7. ConT., 510 ; Menzies Lect., 788 = 10 and 11 Vict., c. 49, §? 5, 7. (835). (x) By the Titles to Land Act, 1860, ? 21, it is provided that no town- clerk of any royal or other burgh, appointed suhsequent to 8th March 1860, " shall have any exclusive right or privilege of preparing or expeding any conveyance, instrument, or other writ applicable to land ;" but town-clerks ■who held appointments at that date are entitled, during the period to which fsuch appointments extend, to receive certain fees from parties presenting conveyances for registration. (y) The 10 and 11 Vict., c. 49, contains provisions as to short forms of clauses in dispositions, &c., and their import, and reference to, instead of in- sertion of, conditions of entail and real burdens, similar to those in c. 48 of same year, in regard to lands not held burgage. It also provided (see Ans. 634) that vpitnesses should subscribe only the last page of sasines, and it will be observed (§ 5, and Schedule D ) that the notary's motto is required as part of the authentication of the instrument. By the Titles to Land (Scotland) Act 1860 (23 and 24 Vict., c. 143), the provisions of the Titles to Land Act 1858, are generally extended " to titles to land held by burgage tenure," and instruments of resignation and Sasine are declared unnecessary, and the title is completed by registration Digitized by Microsoft® BURGAGE CONVEYANCES. 357 748. A completed a title to burgage subjects by charter from the Crown and infeftment, and B subsequently com- pleted a title to the same subjects by resignation and infeftment in the ordinary burgage form ; Which is the preferable title ? B's title is preferable ; because the magistrates of the burgh, through whose intervention B's title was completed, act as com- missioners of the sovereign under an express statute, and thus ex- clude the ordinary officers of the Crown. ^ 749. Where the town-clerk has acquired burgage subjects, how may he obtain infeftment ? The Court, on an application by the town-clerk, will authorise the sheriff-clerk of the county to oificiate for him in expeding in- feftment in his own favour.^(«) 1 Duff's Feud. Conv., 509; C. of ^ Duflf, 16tli Jan. 1823, 2 S., 117. Kincardine, M., 6894. of the conveyance with warrant. It is not necessary here to repeat those provisions, but the following points may be noticed : — 1. Where an assignation or assignations of an unrecorded conveyance are written thereon, they do not require to be docqueted with reference to warrant of registration ; §2 9 and 25, and Schedules A and K (see Ans. 710). 2. The same question arises as under the Act of 1858 (see Ans. 645) as to the competency of recording of new where there is an error in the war- rant of registration ; § 18. 3. The reference to real burdens, &c., may be to a recorded conveyance ; §31. 4. The description of lands may be by reference to recorded deed ; § 34. See note {x), p. 268. 5. The provisions of 6 and 7 Will. IV, c. 33, as to erasures in sasines, &c., are extended to instruments under this Act ; § 19. 6. Warrants of registration may be signed by the person on whose be- half the deed is to be recorded, or his agent (§ 3), except in any burgh in which lands are held burgage and no register of sasines is kept, in which case it must, during the subsistence of the rights of the existing town-clerk, be signed by him ; and where no warrant is required, the deed or instru- ment itself must be subscribed or indorsed by him ; § 22. 7. The provisions of the Act are made applicable to lands in the burgh of Paisley held by the tenure of booking ; g 23. («) This is now changed. The Titles to Land Act 1860, § 26, provides that " it shall be competent for the town-clerk of any burgh to expede and Digitized by Microsoft® 358 BURGAGE CONVEYANCES. 750. May burgage subjects be feued ? (1) The individual proprietors of subjects held in burgage tenure cannot convey the subjects to be held in feu-farm ;^ at least a real right cannot be completed under a disposition in that form, it being declared by the Act 3 567, c. 27, that sasines of burgage subjects, given otherwise than by one of the bailies and by the common clerk, shall be null. (a) (2) But the magistrates may grant feu-rights of land belonging to the burgh to be holden of themselves for an adequate feu-duty. ^(6) ' Bell's Prin., 844 ; Duff's Feud. ^ pean, M., 2522 ; Mags, of Sel- Conv., 51. kirk, 11th June 1828, 6 S., 955. record, and for the keeper of any burgh or other register of sasines, rever- sions, &c., to record any instrument of sasine, or of cognition and sasine, or any notarial instrument or conveyance or other writ in which such town- clerk or keeper may he personally interested, either individually or as trustee for another, or otherwise ;" and provides that no deed or instrument pre- viously so espede or recorded shall he challengeable on the ground of such personal interest, saving any action or proceeding instituted before the pass- ing of the Act. (a) It is commonly laid down, as here stated, that a proprietor of subjects held burgage cannot sub-feu them (Bankton, 2, 3, 68), but it is not easy to see on what ground. It is said that it changes the tenure, but though A grants a precept to be held of himself, Ms own tenure remains burgage as before. The Act 1567 does not seem to create any difficulty, because, though under its provisions only a magistrate could act, it applies entirely to sasines by burgage tenure, while in the case supposed, the holding being feir, a magistrate wijuld not be required. Indeed, if this objection be well founded, it would he equally fatal in the case of feus by the magistrates themselves. The only real difficulty is one, not of principle, but of prac- tice. If the superior's heir did not take up the superiority, the vassal's heir could not take the usual course of going to the Crown for an entry, but he could make up a perfectly valid title by special service recorded under 10 and 11 Vict., c. 47, and Titles to Land Act 1858. (6) The doctrine here stated is laid down by Brskine (2, 4, 9) and other institutional writers, has been confirmed as opinion by judges, and seems to be unquestionable in principle ; but the question does not appeal to have been decided in a pure shape. In Dean (cited) the point was as to the magistrates' right to alienate the burgh property, not as to the mode of do- ing so. In Davie, 2d June 1814, F.C., the question was as to the register in which a sasine on a grant by magistrates, hearing to be held feu, should be recorded. In Dawson, 14th Nov. 1827, 6 S., 19, and 4 W. and S., 81, ■ the question was as to the nature of the holding, which was found to be burgage. In this case Lord Balgray said — " I think they " (the magis- Digitized by Microsoft® TRUST-DISPOSITION FOR CREDITORS. 359 XII. TRUST-DISPOSITION FOR CREDITORS. 751. "What are the leading objects of the trast-disposition for creditors ? (1) The vesting of the estate and eifects of the granter in the person of a trustee for behoof of the creditors ; (2) the payment of the granter's debts ; and (3) the discharge of the granter, and the reconveyance to him of any reversion after payment of the debts and the expenses of the trust. 752. Is it necessary, in order to make a trust-deed effectual against future creditors, that the trust-creditors be enumerated in the deed, and the amount of their debts therein specified ? State the reason. No ; the principle being that the trust-estate is vested in the trustee for behoof of the acceding creditors as a right under re- version ; and it is only upon the reversionary right, after the pur- poses of the trust have been fulfilled, that future creditors are en- titled to rely. -(c) 753. May non-acceding creditors proceed by separate dili- gence against the trust-estate ; or may the trust-deed be superseded by a sequestration at their instance ? (1) Where the trust-deed, being a disposition omnium honorum, and containing no such conditions or limitations as shall in any 1 Bell's Com., ii, 1172 (ii, 490). trates) " have the right to feu and to grant a subaltern right, to be held of themselves, by which they are constituted mid-superiors between the grantee and the Crown." In Mags, of Selkirk (cited), the question was whether there had been a grant of any kind made, and it was found there had not. In Donald's Trs., 11th July 1839, 1 T>., 1249, the point at issue was as to an agent's liability to complete a valid title, and it was held that the one made up was bad, whether the holding was burgage or feu; and in Fife's Trs., 25th May 1842, 4 D., 1245, where » grant by magistrates of burgh property in feu was sustained, the judgment was rested on the ground " of a special power contained in the title of the magistrates empowering them to grant such feus." (c) It is essential, however, that the debtor be divested, and the trustee vested habili modo with the real right to the estate. Digitized by Microsoft® 360 TBUST-DISPOSITION FOR CBEDITOES. way interfere with the beneficial interests of the creditors, has been granted before the commencement of diligence, and the transference has been completed sixty days at least before the granter's notour bankruptcy, the non-acceding creditors cannot disturb the trust by separate diligence.^ (2) But the trust-deed is no bar to sequestration, which completely supersedes it.^ 754. What is the purpose of the deed of accession? The deed of accession is an instrument executed by the cre- ditors approving of the trust, and acquiescing in the plan of management, disposal, and distribution of the estate set forth in the trust-conveyance ; the effect of the deed being to render the conditions binding on them, and to prevent them from taking measures, by diligence or otherwise, for recovery of their debts independently of ihe trust. 755. Is a creditor, after signing the deed of accession, bound by the trust-arrangement, if some of the creditors have refused to concur in the deed ? No ; because the deed of accession being a mutual contract, it is an implied condition that the accession shall be general, and that all shall be bound or none.^ 756. Is the trustee, who is infeft and in possession of the trust-property, personally liable for implement of the truster's obligations to his superior ? Yes ; because by taking infeftment the trustee adopts the feu and he cannot refute invito domino.* 757. Does the conveyance of land to a trustee for creditors make the debts due to them heritable, though origi- nally moveable ? No ; unless the trust is so conceived as to vest in the creditors a, pro indiviso real right in the estate.^(c?) 1 Bell's Com., ii, 1175 (ii, 492). « M. of Abercorn, 16tli Dec. 1835, ^ Bell's Com., ii, 1177 (ii, 3.S3 and 14 S., 168. 496). ^ Ivory's Note on Ersk., 2, 2, 15. = Watson, M., 6397 ; Bell's Com., ii, 1179 (ii, 500). (rf) Even then the principle laid down by Erskine in the passage referred Digitized by Microsoft® SEQUESTRATION. 361 XIII. JUDICIAL TRANSFERENCE. (1.) Sequestration. 758. In what cases may sequestration be awarded ? Sequestration may be awarded of the estate of any person in the following cases : — (1) In the case of a living debtor, subject to the jurisdiction of the Supreme Courts of Scotland, 1st, on his own petition, with the concurrence of one creditor whose debt amounts to not less than fifty pounds, or of any two creditors whose debts together amount to not less than seventy pounds, or of any three or more creditors whose debts together amount to not less than one hun- dred pounds, whether such debts are liquid or illiquid, provided they are not contingent ; and, 2rf, on the petition of a creditor or creditors, qualified as above mentioned, provided the debtor be notour bankrupt, and have within a year before the date of the presentation of the petition resided or had a dwelling-house or place of business in Scotland ; or otherwise, in the case of a com- pany being notour bankrupt, if it have within such time carried on business in Scotland, and any partner have so resided, or had a dwelling-house, or if the company have had a place of business in Scotland. (2) In the case of a deceased debtor, who, at the date of his death, was subject to the jurisdiction of the Supreme Courts of Scotland, 1st, on the petition of a mandatory, to whom he had granted a mandate to apply for sequestration ; and, 2cZ, on the petition of a creditor or creditors qualified as before mentioned.^ 759. What persons are declared by statute to be ineligible to the office of trustee ? (1) The bankrupt ; (2) a person conjunct or confident with 1 19 and 20 Vict., u. 79, ?? 18, 14. to must not be overlooked, that " As the nature of the creditor's right can- not be changed without his own consent by the debtor, the creditor must do some deed importing his acceptance of the heritable right offered by him." See also Bell's Com., ii, 6. In any case, a sale of the estate would again render the debt moveable. Digitized by Microsoft® 362 SEQUESTEATION. the bankrapt ; (3) one who holds an interest opposed to the gene- ral interest of the creditors ; and (4) one whose residence is not within the jurisdiction of the Court. "■ 760. What is the procedure for vesting the bankrupt's estate in the trustee after his election ? (1) The trustee lodges with the sheriiF-clerk a bond of cau- tion, signed by him and his cautioner (e) for the amount of secu- rity fixed by the creditors at the meeting for the election of a trustee, (2) On the bond of caution being lodged, the sheriff confirms the election, and the sheriff-clerk issues an act and warrant of confirmation, a copy of which is immediately transmitted by the tmstee to the Accountant in Bankruptcy, who makes an entry of the name and designation of the trustee in the Eegister of Se- questrations.^ (3) The trustee, within twenty-one days after his election is confirmed, causes an abbreviate of his confirmation to be recorded in the Eegister of Abbreviates of Adjudications.' 761. What is the effect of the act and warrant of confirma- tion in favour of the trustee ? It i;pso jure transfers to and vests in him, for behoof of the creditors, absolutely and irredeemably, as at the date of the se- questration, with all right, title, and interest, the whole property of the debtor to the effect following : — (1) The whole moveable estate and effects of the bankrupt, wherever situated, so far as attachable for debt, to the same effect as if actual delivery or possession had been obtained, or intimation made at that date, subject to preferable securities existing at the date of the sequestration. (/) (2) The whole heritable estate in Scotland, to the same effect as if a decree of adjudication in implement of sale, as well as a decree of adjudication for payment and in security of debt, subject ' 19 and 20 Vict., c. 79, ? 68. « lb., J§ 72, 73. » lb., I 79. (e) If the creditors agree, a bond liy a guarantee society may be taken instead of a cautioner ; § 72. (/) And not null or reducible. Digitized by Microsoft® SEQUESTKATION. 363 to no legal reversion, had been pronounced in favour of the trustee, and recorded at the date of the sequestration, and as if a poinding of the ground had then been executed, subject to preferable secu- rities ; provided that such transfer and vesting shall have no effect on the rights of the superior, nor upon any question of succession between the heir and executor of any creditor, nor upon the rights of the creditors of the ancestor (except that the act and warrant shall operate in their favour as complete diligence) ; and if any part of the bankrupt's estate be held under an entail, or by a title otherwise limited, the right vested in the trustee shall be effectual only to the extent of the interest in the estate which the bank- rupt might legally convey, or the creditors attach. (3) All real estate in England, Ireland, or in any of the British dominions ; provided that, as regards freehold, copyhold, and leasehold estate, the act and warrant be properly registered in the Books of the Court of Bankruptcy for the country in which the property is situated ; and likewise that it be enrolled and re- corded where, according to the laws of that country, conveyances would require registration or enrolment.^ 762. How may the trustee complete a feudal title to lands in which the bankrupt is publicly infeft ? (1) By charter of adjudication from the superior, and infeft- ment or registration of the charter in the Eegister of Sasines. (2) By disposition from the bankrupt, which he is bound to grant, and infeftment or registration ; or resignation and infeft- ment, or registration. (3) By expeding and recording a notarial instrument in the form of Schedule M, annexed to the Titles Act, setting forth the act and warrant, and specifying the lands, and the title by which they are held by the bankrupt ■,[g) but as the effect of registration of the instrument is equivalent to infeftment on a conveyance of the lands by the bankrupt, to be holden in the same manner as 1 19 and 20 Vict., c. 79, ? 102. {ff) This provision is now by the Titles to Land Act 1860 extended to lands held burgage, which did not previously fall under it. The mode of proceeding and effect are similar to what is here stated. See Act, § 15, and Schedule I. Digitized by Microsoft® 364 SEQUESTRATION he held or might have held the same, confirmation by the superior is necessary, (^) the holding implied being a me} 763. How may the trustee complete a feudal title to lands, the bankrupt's title being an unrecorded conveyance? As the act and warrant of confirmation operates a transference to the trustee of all personal rights and unexecuted warrants, he may complete a feudal title in the same manner as if he held a disposition and assignation from the bankrupt, viz., (1) by infeft- ment, in virtue of the assigned precept ; or (2) by notarial instru- ment, in the form either of Schedule K (i) or of Schedule B (fc) (Titles Act); and, where either of these forms is used, confirma- tion is unnecessary if the unrecorded conveyance in favour of the bankrupt contains an alternative holding. The notarial instru- ment. Schedule M, apparently is not intended to be used where the bankrupt's title is personal, but only where it has been feudal- ised. (3) If the unrecorded conveyance in favour of the bank- rupt contains a procuratory of resignation, the trustee may com- plete his title by a charter of adjudication and resignation, and infeftment or registration. (Z) 1 21 and 22 Vict., u. 76, \ 22. See Ans. 682. ill) This, Tinder §§ 5 and 22 of the Titles Act 1858, depended on whe- ther or not the investiture contained a prohibition of suhinfeudation or al- ternative holding. The 5th section of that Act is now explained by \ 36 of the Titles Act of 1860, and the result is the same. See note (6), p. 321. («■) And recording the conveyance with warrant of registration thereon, and the instrument. (i) It is to be observed that, under \\ 2 and 14 of the Act, Schedide B is to be used only where it is not desired to record the whole conveyance, and therefore, if the conveyance itself is not to be recorded, the proper course would be, if the terms of the deed admitted of it, to expede and record a sasine. {t) The preceding rules apply to lands not held burgage. Where lands are held burgage, the title will be made up under the Titles to Land Act 1860 ; and (1) where the whole deed is not to be recorded (§ 10) by notarial instrument in the form of Schedule B ; (2) by expeding a notarial instru- ment (^ 10) in the form of Schedule G, and recording the conveyance with a warrant of registration thereon, and a notarial instrument. The notarial instrument. Schedule I, does not seem to be applicable where the bank- rupt's title is personal. Digitized by Microsoft® SEQUESTRATION. 365 764. How ought the trustee to complete a feudal title to lands which the bankrupt was possessing on appa- rency, and in which his ancestor was infeft, the bank- rupt having granted heritable securities to several of his creditors ? The trustee ought to complete a feudal title by charter of ad- judication from the superior, and infeftment or registration, and not by infeftment on, or registration of, a conveyance in his favour by the bankrupt, as the latter title could be validated only by the bankrupt's subsequent service and infeftment, which would ac- cresce to and validate the prior heritable securities. '(m) 765. Where the title of the bankrupt's ancestor was an un- recorded conveyance, and the bankrupt himself has made up no title. May the trustee make up a feudal title on a conveyance from the bankrupt without vali- dating the prior securities ? Yes ; care being taken to avoid making up a feudal title in the person of the bankrupt himself, by which alone the prior secu- rities can be validated. But before the trustee's title can be com- pleted, whether it be made up by infeftment on the precept in the ancestor's favour, or by notarial instrument, the bankrupt must first be served heir in general, as it is necessary that the service be deduced in the sasine or notarial instrument.^ 766. A trustee, without making up a feudal title, sold lands in which the bankrupt was infeft, and the purchaser registered his disposition in the Eegister of Sasines ; Did he thereby acquire a real right ? State the reason. Yes ; it being enacted by the Bankrupt Act that the trustee may, without making up a feudal title in his person, and without concurrence of the bankrupt, grant conveyances of heritable estate belonging to the bankrupt, with such procuratories, precepts, or ' Duff's Feud. Conv., 306. ' Duff's Feud. Oonv., 203, 306. (m) As, before the trustee could make up a title to the lands, the bank- rupt must be vested fictione juris with a right to them, a decree of adjudica- tion against him must be got before a charter of adjudication can be ob- tained. If the lands are held burgage, the trustee's title will be completed directly by registration of the decree. Digitized by Microsoft® 366 SEQUESTBATION. other warrants, as the bankrupt might competently have granted ; which conveyances are declared to be as effectual to the purchaser as if they had been granted by the bankrupt with concurrence of the trustee.' (m) It is consequently unnecessary for the trustee to make up a feudal title, unless there be a special object in doing so, as for the exclusion of preferable rights. 767. The estates of a person having been sequestrated after his death, and his heir having made up titles to the heritable estate ; How may the trustee get the pro- perty transferred ? The trustee may apply by petition to the Lord Ordinary on the Bills, praying that such estate shall be transferred to and vested in him ; and the Lord Ordinary orders the petition to be served on the heir, and to be answered by him within fourteen days, an abbreviate of the petition and deliverance being recorded in the Eegister of Inhibitions, which has the effect of an inhibi- tion. If, on the expiration of the inducioe, no cause is shewn to the contrary, the estate is declared to be transferred to and vested in the trustee, as at the date of the sequestration ; and the de- cree (o) is recorded within eight days in the Eegister of Adjudica- tions.^ 768. Where the holder of a bill payable by the bankrupt, with recourse on other parties, has received payment from the bankrupt, in ignorance of the sequestration, and given up the bill ; Is he liable to repay to the trustee the amount received ? The holder of the bill is not liable to make repetition ; unless the trustee shall replace him in the situation in which he stood, or reimburse him for any loss or damage.^ 769. May the trustee sell the heritable estate of the bankrupt by private bargain ? 1 19 and 20 Vict., c. 79, § 105. ' lb., I 106. « lb., ? 111. [n) Held that the provision in tliis respect in the former Act (2 and 3 Vict, c. 41) applied to the estates of deceased as well as liying bankrupts ; Melville, 1st June 1842, 4 D., 1311. The same rule holds under the exist- ing Act. (o) An abbreYiate of the petition and dflivernncp. Digitized by Microsoft® SEQUESTRATION. 367 He may do so with concurrence of a majority -of tlie creditors in number and value, and of the heritable creditors, if any, and of the Accountant in Bankraptcy.' 770. Is it lawful for a creditor, or the trustee, or adjudger selling, to purchase the bankrupt's estate ? When the estate is sold publicly, any creditor (^) may pur- chase ; but the trustee, or commissioners, or adjudgers (r) selling, are not entitled to purchase.^ (2.) Adjudication in Implement. 771. Enumerate and explain the forms of preliminary pro- cedure in use before the passing of the Lands Trans- ference Act, in leading an adjudication against an unentered heir, in implement of his ancestor's obli- gation. (1) Letters of general charge, — on which the heir was charged to enter himself as heir to his ancestor ; the intention of the charge being to fix the rejDresentation of the heir, and conse- quently to subject him in liability to implement his ancestor's obligation. (2) Action of constitution against the heir, — proceeding on his ancestor's obligation, and the general charge, and concluding that he should be ordained to make up titles to the lands, and convey them to the obligee. (3) Letters of special charge, — where the ancestor was infeft, on which the heir was charged to enter heir in special to his an- cestor, with certification that, upon his failure, the obligee should have adjudication and other diligence against him, as charged to enter in special. The effect of the charge was to establish in the 1 19 and 20 Vict., c. 79, § 115. = lb., ? 120. (p) Held, under 2 and 3 Vict., o. 41, ^ 99, -whicli contained a similar provision, tliat heritable creditor concurring in sale may buy ; Cruicksbanlr, 15th Feb. 1849, 11 D., 614. (r) The words " or adjudger selling as aforesaid " in the clause referred to have no application to any part of the Act. They had reference to a clause giving adjudgers power to sell like creditors in bonds and dispositions in security, which was in the bill, but was dropped in the House of Lords. See Kinnear's Law of Bankruptcy, p. 141. Digitized by Microsoft® 368 ADJUDICATION IN IMPLEMENT. heir a fictitious title, equivalent to special service. A general spe- cial charge was used where the ancestor was not infeft. (4) Action of Adjudication in implement, — founding upon the whole procedure, and concluding that the lands should he adjudged from the heir as charged to enter, and as representing his ancestor upon the passive titles, and that they should he ordained to belong to the pursuer in implement of the obligation.' 772. What was the change in the procedure where the heir appeared in the action of constitution, and renounced the succession ? Instead of a personal decree against the heir in the action of constitution, decree cognitionis causa only was pronounced, which was the warrant for a summons of adjudication in implement contra hcereditatem jaeentem, without an antecedent special charge. 773. Where adjudication in implement was to be led against an heir unentered, on his own obligation, What was the preliminary procedure? Where the heir himself was the granter of the obligation, there was no general charge, and no action of constitution, the procedure having commenced, if the ancestor was infeft, with a special charge ; or, if his title was personal, with a general special charge, which was followed by the summons of adjudication in implement. 774. Enumerate the changes introduced by the Lands Trans- ference Act, and the Titles to Land Act, in the pro- cedure of leading adjudication in implement against an unentered heir. (1) By the Lands Transference Act^ — 1. General, special, and general- special charges are abolished. 2. The citation upon, and execution of, a summons of consti- tution are declared equivalent to a general charge, with inducice expiring with the inducice of the summons ; and the execution of the summons is declared to infer the same certification. 3. The execution of the summons of adjudication is declared equivalent to a special charge, or a general-special charge, as the ' Mcnziea Lect., 747 (789). ' 10 and 11 Vict., c. 48, § 16. Digitized by Microsoft® ADJUDICATION IN IMPLEMENT. 369 ease may require, the inducice expiring at the same time,(s) and the same certification being inferred. 4. It was provided that the action of constitution and adjudi- cation might be combined, and the decrees of constitution and adjudication contained in one interlocutor.(i) But if the heir did not renounce, separate actions were neceBsary.^(M) (2) By the Titles to Land Act, 1st, it was enacted that both actions of constitution and adjudication may be combined in one summons, whether the heir renounced the succession or not ; 2d, the heir's tempus deliberandi, formerly a year and day, was re- stricted to six months. ^(cc) 775. How does a party who has obtained a decree of adjudi- cation in implement against the granter of the obli- gation, who was publicly infeft, complete a public title to the lands adjudged ? (1) By charter of adjudication and infeftment or registration ; or (2) by infeftment on or registration of decree (y) and confirma- tion. 776. Where the adjudication has been led against the unen- tered heir of the granter of the obligation. How does the adjudger complete his title ; the granter of the ob- ligation having been publicly infeft ? ' Browns, 28th Jan. 1851, 13 D., = 21 and 22 Vict., c. 76, J 27. 543. («) "With the inductee of the summons. (t) The combination of the constitution and adjudication Was known and established in practice before the Act referred to was passed, but could pro- ceed only contra hmreditatem, jacentem. tt was therefore adopted where it was expected that the heir should appear and renounce, failing which, the decree was limited to one of constitution, upon which the usual proceeding by special charge and adjudication followed. The judgment in Browns' case proceeded on the analogy of the former practice. (u) The Act here referred to applied only to lands not held burgage, but similar provisions in regard to lands held burgage are contained in the 10 and 11 Vict., c. 49, § 8. (x) This provision is now extended to lands held burgage; Titles to Land Act 1860, § 16. (y) See qualification of this provision of 10 and 11 Vict., c. 48, J 19, in Ans. 776 (2). 2 A Digitized by Microsoft® 370 ADJUDICATION IN IMPLEMENT. (1) By charter of adjudication and infeftment, or registration. (2) It is thought that under the Lands Transference Act only- it is not a habile method of completing the adjudger's title in this case to take infeftment on the decree ; the Act having declared that mode competent only "where the person adjudged from is entered with the superior, or in a situation to charge such superior to grant entry by confirmation."' But under the Titles Act, it ap- pears now competent to complete the title by infeftment on or re- gistration of the decree in the Eegister of Sasines, it being de- clared by the latter Act that the decree of adjudication shall be equivalent to, and shall have the legal operation and effect of, a conveyance /rom the ancestor of the lands adjudged in favour of the adjudger, to be holden in the same manner as the ancestor held or might have held the same.^ But that holding being a me only, the superior's confirmation must be obtained. (z) 777. How does the adjudger complete his title where the an- cestor's title was an unrecorded disposition, contain- ing a procuratory and precept ? (1) By infeftment on the unexecuted precept transferred by the decree ; or by expeding and recording a notarial instrument, Sche- dule K (along with the unrecorded disposition), or a notarial in- ' 10 and 11 Vict., o. 48, § 19. (i;) ^ 21 and 22 Vict., c. 76, I 27. See Liddle, 17th Nov. 1855, 18 D., 61. (v) This applies only to lands not held burgage. (z) The course suggested in this answer, under the Titles Act, is thought to be competent, as in the subsequent part of ? 27 there is express reference to recording either the decree of adjudication or a notarial instrument pro- ceeding thereon in the register of sasines, and in the interpretation clause (§ 36) the word "conveyance" is declared to extend to and include "de- crees of adjudication, decrees of sale," &c. By the Titles to Land Act 1860, § 16, a decree of adjudication of lands held burgage is declared " equivalent to a conveyance from such ancestor of all lands adjudged in favour of the adjudger," and in the interpretation clause (§ 2), which also applies to the Act 1858, the word " conveyance " is declared to include " decrees of adjudi- cation, decrees of sale (whether such decrees of adjudication or decrees of sale contain warrant for infeftment or not)." It is therefore competent in this case also to record the decree with warrant of registration. In all cases the nature of the holding will depend on the terms of the investiture ; Titles Act 1860, I 36. Digitized by Microsoft® RANKING AND SALE. 371 strument, Schedule B (a) and by confirmation ; or (2) by charter of adjudication and resignation, and infeftment or registration. (6) (3.) Hanking and Sale. 778. What are the objects of the process of ranking and sale ; and how were these objects formejly accomplished ? (1) The objects of the process of ranking and sale are, 1st, the sale of the estate, with adjudication of it to the purchaser ; 2d, the production by the real creditors of their grounds of debt, to ascer- tain the order of ranking ; and, 3d, the distribution of the price among the creditors according to their respective rights. (2) These objects were formerly accomplished by three sepa- rate actions, viz., 1st, an action of sale ; 2d, an action of reduction- improbation ; and, 3d, an action of multiplepoinding.^ 779. What must be the qualifications of the pursuer of a rank- ing and sale ? (1) He must be a creditor holding a real right ; and (2) the creditors must be in possession of the debtor's heritable property, either actually, or by decree of maills and duties, or by sequestra- tion of the rents.^ 780. Enumerate the leading conclusions of the summons of ranking and sale. (1) That proof should be taken of the rental and value of the debtor's lands, and that the titles should be produced ; (2) that the real creditors should be ordained to produce their grounds of debt, diligence, &c. ; (3) that the creditors should be ranked upon the rents and price, according to their preferences ; (4) that the debtor should be declared bankrupt ; (5) that the upset price should be 1 Ersk, 2, 12, 59, et seq.; Menzies ' gg^.g q^j^^ ;;_ io03 (ii, 258). Lect., 734 (774). (a) See note (i), p. 364. (6) In the case of burgage lands where the disposition contains a pro- curatory, the title will be completed by expeding a notarial instrument in terms of Schedule G, annexed to the Act of 1860, and recording the dis- position with a warrant of registration and such notarial instrument in the appropriate register of sasines. 2 A 2 Digitized by Microsoft® 372 RANKING AND SALE. fixed, and the lands sold and adjudged to belong to the highest offerer; (6) that the decree should be declared as valid and effec- tual as a disposition by the common debtor and the whole credi- tors ; (7) that the purchaser should be infeft, and the superior or- dained to grant all necessary charters; and (8) that the creditors should be ordained to assign their securities to the purchaser to fortify his title.'^ 781. "Who are called as defenders to the action of ranking and sale ? The debtor or his apparent heir, and all the real creditors in possession. Personal creditors also are called edictally.^ 782. Must the summons include the whole of the debtor's lands ? State the reason. Tes; because the debtor's bankruptcy or insolvency is expressly required by statute, and unless the whole of his heritage be brought before the Court, his bankruptcy cannot be proved.^ But it is sufficient, after enumerating all the lands known to the pursuer, to add a general clause of all other heritable estate belonging to the bankrupt, or to which he may succeed.*(c) 783. What is sufficient proof of the debtor's bankruptcy ? (1) Proof that the interest of the debts and the other annual burdens exceed the yearly income of the lands ; or (2) sequestra- tion of the debtor's estates.' 784. If the pursuer or any of the defenders die during the dependence of the action ; What is done ? (1) If the pursuer die, the action is carried on by a judicial factor, or any real creditor, or any creditor who is in a situation to 1 Parker's Styles, 100. « A. S., 17th Jan. 1856, ? 12. > Menzies Lect., 735 (775). » 54 Geo. Ill, u. 137, i 7.(rf) » Ersk., 2, 12, 60 ; Macpherson, M., 13863. (c) The Act of Sederunt requires this clause to be added. (d) This Act is repealed by the 19 and 20 Vict., c. 79 ; but similar pro- visions to those here referred to are contained in the 19 and 20 Vict., o. 91, M 3 and 4. Digitized by Microsoft® BANKING AND SALE. 373 adjudge ;(e) and it is not necessary to call the heir of the deceased pursuer.' (2) If any of the defenders die the heir of the party is called on letters of diligence.^ 785. How may the purchaser complete a puhlic title ? (1) By the charter of sale (combined with a confirmation, if the debtor was base infeft) and infeftment or registration ; or (2) by infeftment on or registration of decree and confirmation, if the debtor was entered with the superior or had a title capable of being confirmed; (3) if the debtor was not infeft, but had right to an open procuratory or precept, the purchaser may make up a title in virtue of these warrants, either by resignation and infeftment or registration ; or by infeftment or notarial instrument, Schedule K or Schedule B (g) (Titles Act), and confirmation. (A) » 54 Geo. Ill, c. 137, ? 10; (/) ' Menzies Leot., 736 (776). A. S., 23d Nov. 1711, § 4; Mont- gomerie, M., 13328. (e) The same course is followed where the pursuer does not insist in tha action or where his interest is extinguished, but a special warrant from tha Court is in all cases required; A. S., 28d Nov. 1711, § 4. (/) See note (<;), p. 372. (g) See note (k), p. 364. (A) In the case of lands held burgage, (1) by registration ; (2) if the debtor was not infeft, and held an open procuratory, 1, by expeding a no- tarial instrument (Schedule G, Act 1860), and recording deed with war- rant of registration and instrument ; or, 2, where it is not desired to re- cord the whole of the conveyance, by expeding and recording a notarial in- strument in form of Schedule B ; 23 and 24 Vict., c. 143, g§ 2 and 10. Digitized by Microsoft® 374 PAET IV.— SETTLEMENTS, SEKVICE, KEDEEMABLE EIGHTS, &c. I. DESTINATIONS. (1.) Gonjunct Rights to Strangers. 786. What is the effect of a destination to " A and B, and their heirs," or to " A and B jointly, and their heirs," or to " A and B in conjunct fee, and their heirs " ? A and B are proprietors to the extent of one-half pro indiviso each, and the share of each descends on his death to his own heir."i 787. What is the construction of a destination of heritage to " A and B, and the longest liver of them, and their heirs"? The survivor has the entire fee, " their heirs " being construed to mean the heirs of the survivor. But during their joint lives each may convey or burden his share ; and it is attachable by his creditors.^ 788. What is the effect of a destination to " A and B jointly, and, in the event of his survivance, to the said B and his heirs " ? B is sole fiar if he survive ; but if he predecease A, the fee is divided betwixt A and the heirs of B.^ 789. What is the effect of a destination to "A and B in conjunct fee and liferent, and their heirs"? ■ Ei-sk., 3, 8, 35. ' Jur. St., i, 120. °- Ersk., 3, 8, 36. Digitized by Microsoft® CONJUNCT EIGHTS TO STEANGERS. 375 A and B are equal fiars during their joint lives, and the sur- vivor has the liferent of the whole unaffected hy the predeceaser's debts or deeds. After the survivor's death, the fee divides equally between the heirs of both.^ 790. What is the effect of a destination to A and B jointly, and to the heirs of the said B ? A's right is limited to a bare liferent, and B is sole fiar, whose right cannot be impaired by the acts and deeds of A, whether onerous or gratuitous.^ 791. What is the effect of a destination to "A and B, and the longest liver in liferent, for their liferent use al- lenarly, and the heirs of the said A in fee " ? A's heirs are sole fiars, the survivor of A and B having the liferent of the whole, with a fiduciary fee for A's heirs. ^ 792. Where it is intended to give the survivor of A and B the entire liferent, and the fee unimpaired to his heirs ; How may the destination be expressed ? To A and B in conjunct liferent (or to A and B and the sur- vivor in liferent), for their liferent use allenarly, and the heirs of the survivor of them in fee.* (2.) Conjunct Bights to Parents and Children. 793. What are the general rules for determining the fiar in destinations of feudal subjects in favour of the hus- band and wife in conjunct fee and liferent, and the heirs to be born of their marriage in fee ? The general rule is, that the husband, being persona dignior, is sole fiar. But this rule suff'ers several limitations founded on the intention of the parties. And (1) the wife is fiar where the property has originally flowed from her or her relations, unless it appears from the deed that it was intended to give the fee to the husband. But where the property is derived from the wife and given as tocher, the husband is fiar. (2) Where the property is 1 Ersk., 3, 8, 35. " Duff's Feud. Conv., 321. ' Ersk., 3, 8, 35 ; Bell's Com., ii, " Duff's Feud. Conv., 321 ; Jur. 803 (i, 64). St., i, 121. Digitized by Microsoft® 376 CONJUNCT EIGHTS TO PARENTS AND CHILDEEN. destined to the wife's assignees, she is fiar. (3) The wife is fiar where her heirs are more favoured in the destination, as where her heirs are called after the heirs of the marriage. But where there are intermediate suhstitutes, that spouse is deemed fiar whose heirs are first called after the heirs of the marriage. (a) (4) Where the wife has a power to sell or burden the subjects, the fee is held (a) In regard to both the second and third rules here stated, it is to he ohser-?ed, that though they hold generally, yet they will he controlled and overruled hy the exception to the first rule in the answer, so as, notwith- standing destinations in the terms given, to vest the fee in the husband in every case where the subject assigned is tocher, Erskine (3, 8, 36) has laid down the rule as to the effect of such destinations, that " "Where the right is taken to the wife's assignees, the law considers her as fiar," for which he refers to the case of Fead ; and the report of this case (M., 4240) hears that the Lords found the wife to he fiar, because the destination " was in favour of her heirs and assignees ;" but Elchies, in his Annotations (p. 224), says — " I don't think this has been the true reason of the decision, but only an observation of the collector's, and that the true reason has been that the subject proceeded from the wife's father ex causa lucrativa, it being a right to all he should have at his death, and there being a separate tocher be- sides." This is also in accordance with Gairns, M., 4230, where the wife's father having disponed a tenement in favour of the husband and wife, and " the longest liver of them two in conjunct fee or liferent, and the heirs between them, which failing, the said Isobel" (the wife), "her heirs and assignees whomsoever ;" it was held that the fee was in the husband ; and Gosford states in his report of the case (M., 4232), that " that which moved the Lords was that the tenement was disponed as a tocher to the husband, and 60 it could not in reason be thought but he and his heirs had the greatest interest," Erskine further says, " a sum of money assigned by the wife in tocher to her husband in conjunct fee and liferent, and the bairns of the marriage, whom failing, to the wife's heirs, was adjudged to belong to the wife," for which he quotes Angus, M., 4244, which, as there reported, supports his view ; but it appears from Elchies' Decisions that the judgment in this case was the direct reverse. Elchies states (vol. i, No. 1, voce " Fiar ") that " the wife had assigned a bond for 1000 merks to herself and husband in conjunct fee and liferent, and the heirs of the marriage, whom failing, to herself, her own heirs, and donators ; yet the Lords found that the husband, and not the wife, was fiar of the sum." See also Creditors of Elliot, M., 4244. The same rule was followed in Henderson, 20th Jan. 1790, M., 4215 ; affirmed on appeal, 11th May 1791, where, under a destination by the wife nomine dotis in favour of her husband and herself in conjunct fee and life- rent, and the heirs of the marriage, whom failing, in favour of the wife and her heirs by any subsequent marriage, and after substituting her sisters and tlieir heirs, in favour of the husband, his heirs and assignees, the fee was found to be in the husband. Digitized by Microsoft® CONJUNCT EIGHTS TO PARENTS AND CHILDKBN. 377 to be in her. (5) Where the destination is to the husband in liferent alimentary, or liferent allenarly, his right is restricted to a liferent, with a fiduciary fee for the children.^ 794. Under a destination to a parent in liferent, and his children nascituri in fee ; Who is fiar ? The parent is fiar ; on the principle (1) of presumed intention, and (2) that a fee cannot be in pendente? 795. What is the construction of a destination by the hus- band of his property to himseK and his wife " in con- junct fee and liferent, and their heirs " ? The husband is fiar, the wife having only a liferent, and the words, " their heirs," being construed to mean the heirs of the husband. (5) 796. Under a destination to a husband and wife, and the longest liver of them, and their heirs ; Who is fiar, the wife having survived the husband ? (1) Where the subject is heritable, the fee belongs solely to the wife, to the entire exclusion of the husband's heirs, as if the right had been granted in the same terms to two strangers ; " their heirs " being construed to mean the heirs of the survi- vor.(c) (2) Where the subject is moveable, the wife and the hus- band's heirs succeed equally ; there being a presumption for divi- sion in destinations of moveables, as these are more easily divided than heritage.^ 797. Under a destination of the wife's heritable property to the spouses " in conjunct fee and liferent, for their ' Ersk., 3, 8, 36 ; Bell's Prin., ^ Fulton, Jan. 1811, Hume, 538. 1953, et seq. ; Menziea Leot., 650 ' Ersk., 3, 8, 86 : Bartllmo, M., (688). 4222. (i) On the other hand, under a destination of a wife's property to herself and her hushand in conjunct fee and liferent, and their heirs, the fee is in the wife. (c) Under a disposition taken hy a husband to himself and his wife in conjunct fee and liferent, and the survivor, and their heirs, assignees, or disponees whomsoever, it was held that the wife, having survived, was sole fiar ; Burrowes, 6th July 1842, 4 D., 1484. This case may be contrasted with that of Madden, infra, p. 379, note 1. Digitized by Microsoft® 378 CONJUNCT EIGHTS TO PARENTS AND CHILDREN. liferent use only, and the children of the marriage in fee, whom failing, the heirs whomsoever of the spouses equally ;" To whom does the fee belong ; there being no heirs of the marriage, and the wife being survi- vor ? The fee is untransferred and still in the mfe ; the destination to heirs whomsoever merely giving them a spes successionis} 798. The wife's lands were conveyed " to her and her hus- band, and the longest liver of them two, in conjunct fee and liferent, and to the child or children to be procreated betwixt them, whom failing, to the said longest liver of them two, and the longest liver's heirs and assignees in fee." The husband survived, and was sequestrated, and there were children of the marriage ; Was the fee of the lands carried by the husband's sequestration ? The fee was not carried by the husband's sequestration ; as it did not vest in him but in the wife, to whom the children are heirs of provision. ^(d) 799. Under a destination of heritage by the husband to him- self and wife " in conjunct fee and liferent, and to the longest liver of them, and their heirs " (or the heirs of the marriage) ; Who is fiar ; the wife being the survivor ? (1) Where the destination is to the spouses in conjunct fee and liferent, and the longest liver, and their heirs, the wife is fiar if she be the survivor, the words, " their heirs," being construed to mean the heirs of the survivor.' (2) But where the destina- ' Eeid, 4th Deo. 1827, 6 S., 198 ; » M'Gregor, 3d June 1831, 9 S., Bell's Prin., 1956. 675 ; aff. 13th April 1835. (e) 2 Myles, 12th Feb. 1857, 19 D., 408.(d) (rf) The grounds of the decision in Myles (cited) were (1) that the pro- perty had been the wife's ; (2) that the object of the conveyance was to in- vest her with her separate share of subjects which she had previously held pro indiviso with her sister ; and (3) that to hold that the husband was in- tended to take the fee under the "conjunct fee and liferent," was incon- sistent with the contingent fee afterwards given to him, failing children. (c) 1 S. and M'L,, 441. Digitized by Microsoft® CONJUNCT RIGHTS TO PARENTS AND CHII^DREN. 379 tion is to the heirs of the marriage, the presumption is against the husband's intention to give a fee to the wife on her surviv- ance.'(/) 800. Where it is intended to give the husband a bare life- rent, and the fee to the children to be born of the marriage ; How may the destination be expressed ? To the husband in liferent allenarly ^ (or alimentary '), and the children of the marriage in fee ; or to trustees for the husband in liferent, and the children of the marriage in fee.* 801. Where it is intended to give the wife the fee, the hus- band a bare liferent, and the children a spes succes- sionis ; How may the destination be expressed ? To the husband and wife in conjunct fee and liferent, for the husband's liferent use allenarly, and to the heirs of the marriage in fee. 802. What is the construction of a destination to A and B, spouses, in liferent, and C, their son, in fee? The fee is in C, and the parents have a liferent only. 803. In whom is the fee, under a destination to A and B, spouses, in liferent, and C, their son, and to any other » Madden, 22drel). 1842, 4 D., 749. (/) * Ewan, 10th July 1828, 6 S., ^ Newlands, M., 4289.(^) 1125; Ross, 22d June 1847 (9 D., " Gerran, M., 4402 ; Douglas, 9tli 1327). Marcli 1811, Hume, 173. (/) The point here stated was not decided in the case of Madden. In this case the destination, which occurred in a, feu-disposltion, was to the hushaud and wife, and the longest liver of them, in conjunct fee and life- rent, and to the heirs of the marriage, whom failing, to his and her own nearest and lawful heirs or assignees whomsoever, equally between them in fee. The husband predeceased, and there were no surviving children of the marriage, and thereafter the wife sold the subject, conceiving that by her survivanoe the whole property had vested in her, and the purchaser having objected to the sufficiency of the title, it was held that she was not sole fiar ; but the question whether she was so to the extent of one-half, though raised, was not decided. {g) See also "Watherstone, M., 4297. Digitized by Microsoft® 380 CONJUNCT EIGHTS TO PARENTS AND CHILDREN. children who shall he thereafter procreated equally among them in fee ? The fee is in C, for hehoof of himself and of the children af- terwards born, if any shall exist. ^ 804. Where a sum of money is assigned by the wife in tocher to her husband in conjunct fee and liferent, and the bairns of the marriage, whom failing, to the wife's heir's ; Who is fiar ? The husband is fiar ; on the principle that whatever is given as tocher is the property of the husband, and here the wife's heirs are only substitutes. 805. Under a destination by a husband to himself and his wife, and the longest liver, in conjunct fee and life- rent, for the wife's liferent use allenarly, and their son nominatim in fee ; What are the rights of the husband and son ? The husband is fiar, and the son is only a substitute, it being held that the destination imports a continuance of the fee in the father.^A) 1 Dykes, 3d June 1813, F.C. ' Wilson, 14th Dec. 1819, F.C. (A) The point involved in Wilson, cited, had been previously decided in the case of Napier, M., 15418 and 15461, and H. of L., 11th March 1765; Paton's Appeal Cases, ii, 108. Here the Countess of Findlater executed an entail " in favour of us, the said Countess and the said James, Earl of Find- later, our said husband, and longest liver of us two, in liferent and conjunct fee, and for the said Earl, his liferent use allenarly, and to James Living- stone of Bedlormie, and the heirs-male lawfully to be procreated of his body, •whom failing, to his other heirs-male," &c. James Livingstone took infeft- ment on the deed, without service, and sold the lands. In the reduction of a second purchaser's title, the Court found " that a general service was ne- cessary to James Livingstone in order to carry right to the Countess' tailzie, " and therefore find that James Livingstone's base infeftment, 1706, and the charter," &c., " proceeding without the said general service, were in- effectual, and did not vest the property of the lands in him." The same judgment was given, Gordon, 23d Feb. 1791, F.C, where the destination was to the entailer and D. M'CuUoch, his only son, and it was found that he required a service, and did not succeed as institute. The reason, how- ever, stated in the answer, though in itself correct, does not apply to Wilson (cited). In that case there was no continuance of the fee in the father, ths destination having been in a disposition taken by him. Digitized by Microsoft® CONJUNCT RIGHTS TO PABENTS AND CHILDREN. 381 806. Where it is intended to give the fee to the survivor of the spouses, and to exclude the husband's power of disposal ; How may the destination he expressed ? To A and B in conjunct liferent, for their liferent use allen- arly, and to the survivor of them, and the heirs of the survivor, in fee. 807. "What is the effect of a conveyance to a parent in life- rent, and his son nominatim in fee, the father having power to sell or burden ? The father is virtually the fiar ; yet on his death the nominal fee in the son becomes absolute, without the necessity of a ser- vice. '('O 808. What is the construction of a destination to a parent in liferent allenarly, and to his children to be born in fee, with power to the parent (1) to sell and dispone ; or (2) to burden for provisions to younger children ? (1) Under the above destination, with power to the parent to sell and dispone, the parent is fiar ; ^ (/c) (2) but where he has 1 "Wilson, 14th Deo. 1819, F.C. : ' Ersk., 3, 8, 36 ; Wilson, supra. M'Gowan, 16th Nov. 1822, 2 S., 21; M'Lean, 5 B. S., 444. (i) The rale is as here stated, and an opinion to the same effect was ex- pressed in Wilson (cited) ; but under the deed referred to in that case (which is the one quoted supra, p. 380, note 2), the father was ahsolute iiar by the destination, and accordingly it was held that a service by the son was necessary, and for want of it a disposition by him was found ineffectual. In M'Gowan, cited, the deed conferred a bare liferent, for liferent use allen- arly, with power to burden with provisions to younger children ; and M'Lean, cited, relates to an entirely different matter. (J) A, by contract of marriage, disponed " to himself in liferent, for his liferent use allenarly, and the children or bairns of the marriage " " in fee," but with reserved power inter alia to sell and dispose of the lands. Infeft- ment followed in favour of A in the above terms, but not in favour of the children nascituri. He thereafter granted a trust-deed for behoof of credi- tors, and in a question between the trustees and the only child of the mar- riage, who claimed the fee, the trustees were preferred ; but, according to the report, " in respect that the sasine taken on the marriage-contract was not so expressed as to divest A of the fee ;" Falconer, 20th Jan. 1825, 3 S., 455. The opinion founded on this case was that, though the children are Digitized by Microsoft® 382 CONJUNCT RIGHTS TO PARENTK AND CHILDREN. power to burden for provisions to younger children only, he has a bare liferent, with a fiduciary fee for the children. '(Z) 809. A fund was destined to A in liferent allenarly, and to his children in fee, but with power to A, " if he should have (m) no children, to bequeath, settle, and dispone, mortis causa," the whole fund. A, who did not exer- cise the power,(7)i) had two children, one of whom predeceased, and the other survived him ; To whom did the fund belong on A's death ? The fund belonged to the surviving child, to the exclusion of the heirs of the predeoeaser ; because, in consequence of the power of disposal, the fund did not vest in the children during A's life- time.^ {See Bonds of Provision, Legacies, Service.) > M'Gowan, 16th Nov. 1822, 2 S., ^ Eobertson, 28tli May 1858, 20 21. D., 989. nascituri, infeftment should be given to them on the deed (the competency of which had been sometimes doubted), otherwise the fee will remain with the granter, subject to his debts and deeds. See More's Notes, pp. 212-213. The effect attributed to such infeftment was that, while it divested the father of the fee under the former investiture, it vested him with a fiduciary fee for behoof of the children ; and the principle was fully recognised in Houlditoh, 9th June 1847, 9 D., 1204, though, from the way in which sasine was given (being limited to the father's liferent right, without any mention of the fee to the children), the deed was found to be ineffectual against creditors of the father. (I) The law is as here stated ; but under a destination to a parent in life- rent and his children in fee, any reserved power should be one of division rather than to burden in favour of younger children, because there all the children have an equal right to share in the succession ; Hay, 17th Feb. 1663, M., 12839 ; Kinloch, 21st Jan. 1678, M., 12841. But in the case of M'Gowan, cited, the destination was to-the disponer's daughter "in liferent, for her liferent use allenarly, and after her decease to the heirs of her body in fee," with power to burden, as mentioned in the answer ; and the judg- ment went on other grounds. As to legacies to parent in liferent and children in fee, see note to Ans. 933. (m) In Robertson, cited, the power was contingent on A's " leaving " no children, and though its existence suspended the vesting, it could not have been effectually exercised. Digitized by Microsoft® CONTKAOT OF MAERtAGE. 383 I[. CONTRACT OF MARRIAGE. (1.) Legal Rights. 810. What is the rule of division of a person's moveable es- tate who has died intestate, leaving a widow and child- ren ; or leaving a widow without children ; or leaving children, his wife having predeceased him ? (1) If there be a widow and children, the division is tripartite ; a third going to the widow as jus relictce, a third to the children as legitim, and a third going also to the children as their father's next of kin, called dead's part. (2) If there be a widow but no children, the division is bipar- tite ; one-half going to the widow as jris relictce, and the other to the next of kin as dead's part. (3) If there be children, and the wife have predeceased, the whole goes to the children ; one-half being legitim, and the other dead's part.' 811. How were the goods in communion divided before the passing of the Intestate Moveable Succession Act 1855 on the predecease of the wife, if there were issue, or if there were no issue of the marriage ; and what alteration on the legal rights of the parties was intro- duced by that statute ? (1) If there were children of the marriage, they were entitled to a third of the goods in communion, exigible at their majority, as their mother's next of kin, the other two-thirds remaining with the husband. (2) If there were no children, the wife's next of kin were en- titled to a half, the other belonging to the husband.^ (3) By the Intestate Moveable Succession Act it is enacted that " where a wife shall predecease her husband, the next of kin, executors, or other representatives of such wife, whether testate or intestate, shall have no right to any share of the goods in com- munion, nor shall any legacy, or bequest, or testamentary disposi- ' Ersk., 3, 9, 19, et seq.; Bell's ° Ersk. and Bell's Prin., ut supra. Prin., 1579, et seq. Digitized by Microsoft® 384 CONTRACT OF MAERIASE. tion thereof by such wife affect or attach to the said goods or any portion thereof."' 812. What is the rule of division of a person's moveable es- tate, dying unmarried, and survived by his father and a brother ? The father is entitled to one-half, and the brother to the other.^ 813. What is the rule of division of an intestate succession, consisting of moveables, and amounting, after pay- ment of debts, &c., to £1200, the intestate having been predeceased by his father, but survived by his widow, his mother, two brothers, and two nephews, sons of a predeceasing brother ? The intestate's widow is entitled to one-half as jus relidx, be- ing £600 ; his mother to one-third of the free moveable estate on which the deceased might have tested, being £200 ; his two brothers to £133, 6s. 8d. each, as the deceased's next of kin ; and his two nephews to £66, 13s. 4d. each, as representing their parent, and in right of the share to which he would have been entitled if he had survived the intestate.^ 814. What is the rule of division of an intestate moveable succession, the deceased having been survived by his widow, a son, and a grandson by a predeceasing son ? The widow is entitled to one-third as jus relictce ; the son is entitled to a third as legitim, and to one-half of the remaining third, being dead's part; and the grandchild takes only the other half of the dead's part, as representing his parent ; there being no representation in regard to legitim. 815. What is meant by collation ? Collation is the right competent to the heir in heritage, who is also one of the next of kin, to renounce his exclusive right to the heritage, and to insist for an equal share of the whole heri- table and moveable succession with the other next of kin.* The ' 18 Vict., u. 23, 5 6. '18 Vict., c. 23, JJ 1, 4. ^ lb., 'i 3. ■• Ersk., 3, 9, 3. Digitized by Microsoft® CONTRACT OF MARRIAGE. 385 right is extended by the Intestate Moveable Succession Act to the issue of the predeceasing heir.' 816. Where a person predeceasing would have been his father's heir in heritage, and the eldest son of such person refuses to collate ; Have his brothers and sisters right to any share of the moveable estate of their grandfather? They have right to a share of their grandfather's moveable estate equal in amount to the excess in value over the value of the heritage of such share of the whole estate heritable and moveable, as their predeceasing parent, had he survived the intestate, would have taken on collation.^ 817. What is terce ; and from what subjects is it excluded ? Terce is a liferent provided by law to a widow, who has not accepted of a conventional provision, (m) of a third part of the hus- band's heritable estate in which he was feudally vested at the time of his death. It is not due from subjects (1) to which the husband had only a personal right, unless there has been in- excusable delay on his part to complete a feudal title ;(n) (2) burdens by reservation ; (3) superiorities and feu-duties ;(o) (4) reversions'; (5) patronage ; (6) minerals ; (7) leases ; (8) teinds, unless there is infeftment of the teinds by erection ; (9) subjects ' 18 Vict., u. 23, § 2. 2 lb. (m) Terce may be reserved although there is a conventional provision ; and wherever it appears that it was not intended to be excluded, the right subsists. (n) The opposite of this found, Carruthers, M., 2252 and 15846. The report bears (2253) " that it would be too arbitrary to go upon presump- tions and designs that he lay out, of purpose to deprive her, and it was much safer to hold by the rule," that the husband's sasine is the measure of the terce. (o) Where a husband shortly before his death feued out the greater part of his estate by a single transaction, at a feu-duty greatly exceeding its agricultural rent, it was held that the widow's right of terce did not extend to the feu-duties, but only to the rent of the land unfeued ; but considerable doubt was expressed, particularly by Lord Moncreiff; Nisbet, 24th Feb. 1835, 13 S., 517. 2 B Digitized by Microsoft® 38b" CONTRACT OF MARRIAGE. held burgage ;(^) but it is due from tenements within the burgh held feu.^(r) 818. A party took a conveyance of feudal subjects to himself in liferent, with power to sell and dispone, and to his son and his heirs in fee, and sasine followed accord- ingly. The son predeceased his father, who after- wards disponed the lands to his grandson ; Had the son's widow a terce? State the reason. No ; because the substantial right of fee did not belong to the son at the time of his death, but to his father in virtue of the power to sell and dispone.^ 819. Do burdens by reservation affect the terce ? (1) Terce does not appear to be due out of burdens by reser- vation in favour of the husband. (2) Eeal burdens by reservation, in the husband's title, restrict the terce.' 820. An heritable proprietor granted an absolute conveyance, on which infeftment followed, but qualified by a per- sonal back-bond ; Was his widow's terce thereby ex- cluded? The sums covered by the security will diminish pro tanto the » Ersk., 2, 9, 44, et seq. ; Bell's 2 Gumming, M., 15854. Prin., 1598 ; More's Notes, 218. ' Bell's Prin., 1598, 1600. {p) This is now altered by 24 and 25 Vict., c. 86, § 12, which provides that " the widow of any person who shall, after the passing of this Act, die infeft in property held by burgage tenure, shall be entitled to terce there- from." (r) Terce formerly was due only where the marriage .subsisted for a year and day or produced a living child ; but by 18 Vict., c. 23, § 7, it is enacted that " Where a marriage shall be dissolved before the lapse of a year and day from its date by the death of one of the spouses, the whole rights of the survivor, and of the representatives of the predeceaser, shall be the same as if the marriage had subsisted for the period aforesaid." These terms seem broad enough to include the right of terce, unless, as is probably the case, they are to be restricted by the object of the Act, which is, " To alter the law of intestate moveable succession." Digitized by Microsoft® CONTKAGT OF MARRIAGE. 387 amount of the terce, but it will not be excluded as to the rever- sion. '(i) 821. Where the husband's infeftment is liable to be set aside on the ground of informality, Will it be sufScient to support the widow's claim to terce in a question with the heir ? State the reason. Yes ; the reason being that, as the husband could not have objected to the invalidity of his own sasine, no such objection is competent to his heir.^ 822. How may terce be excluded ? (1) By the wife's acceptance of a conventional provision, or by renunciation in an antenuptial marriage-contract; (2) by all hona fide transferences of the fee, feudally completed before the husband's death ; (3) by an express clause in a deed of entail. ^(k) 823. What are the measures for making the terce effectual ? (1) Service to the terce, which gives the widow a right of possession pro indiviso ; and (2) kenning, by which the subjects are divided between the widow and the heir, and the former ac- quires a proper right of liferent in her third.* 824. What is lesser terce ? Lesser terce is that which is due out of lands already burdened with a prior terce, and consists of a third of the remaining two- thirds of the rents, to be increased to the full extent on the death of the first tercer.^ ' Bartlet, 21st Feb. 1811, and 27th « Bell's Prin., 1600 ; Duff's Feud. Nov. 1812, F.C.(s) Conv., 406. 2 Hose, M., App., " Terce," No. * Ersk., 2, 9, 50. 1.(m) ^ Ersk., 2, 9, 47. (s) In Bartlet the question was raised whether, the lands having been sold, the widow was entitled to a third of the amount of the rents, or of the interest on the price ; but the judgment is not reported. {t) Suras advanced, though after the date of the backbond, will diminish the terce ; Bartlet, supra, note 1. (m) Observe — This case is No. 1 of Part I. of the Appendix, as there is an error in the printing in the Dictionary. {x) So found, Gibson, M., 14869. Digitized by Microsoft® 2 B 2 388 CONTRACT OF MAERIAUE. 825. What is the right of courtesy ; and on what contingen- cies does it depend ? Courtesy is a husband's right of liferent of his wife's heritable estate after her death. It depends on these contingencies : — (1) that there shall have been a child born of the marriage, heard to cry; (2) that the child shall be the wife's heir ;(2/) (3) that the subjects shall have been acquired by the wife by succession, as heir of line, tailzie, or provision ;(£) (4) that the wife shall have been feudally vested at the time of her death. '(a) 826. Do arrears of terce or courtesy transmit to heirs ? (1) If the widow has been served to her terce, arrears transmit to her representatives. It has been held that, without service, arrears do not transmit f but the decision is thought to be of doubtful authority.^(6) (2) Arrears of courtesy are not demandable by the husband's heir.' (2.) Conventional Provisions. 827. What are the leading objects of the antenuptial contract of marriage ? The settlement of provisions to the wife and children ; the se- curing of these provisions against the consequences of the husband's " More's Notes, 218. * "Ersk., 2, 9, 05 ; Macaulay, M., 3112. » Ersk., 2, 9, 52; ; Bell 's Priu., 11505. ^ M'Leish, 2d Feb. 1826, 4 S., 485. (y) Or, if dead, would have been her heir had he suiTived. It is not due to a second husband if there be an heir of the first marriage ; Darleith, M., 3113. (z) Courtesy is due where, though the wife takes the lands as disponee, she was alioquin successura; Primrose, M., voce " Courtesy," App., No. 1. (a) Courtesy is not excluded in respect of alleged nullities in wife's sa- sine, the same " not having been quarrelled in her lifetime ;" Hamilton, M., 8117. It was in one case held not to be due from burgage subjects; Gordon, M., 3116 ; but Erskine (2, 9, 54) denies this, and says the ground of the judg- ment was that the subject had been acquired iitulo singulari. Courtesy differs from terce in this respect, that while terce is diminished only by debts and burdens completed by infeftment, courtesy is accompanied by a general liability to that extent for all the wife's debts, but with relief against the executor for such of them as are personal; Monteith, M., 3117; Bell i, 62 ; More's Notes, 219. [b) The principle of the decision in M'Leish, cited, is laid down Stair 2, 6, 13, 14, and 15 ; and Ersk., 2, 9, 50. Digitized by Microsoft® CONTRACT OF MARRIAGE. 389 insolvency ; the limitation of the legal rights of the wife and child- ren ; and the disposal of the wife's property. 828. Where the hushand has bound himself for an annuity to the wife, payable after his death, What is the eifect of the provision on the husband's bankruptcy ? Such an obligation confers on the wife a jus crediti, and she is entitled to be ranked upon her husband's estate, and to draw a dividend corresponding to the value of the contingent annuity.^(c) 829. Where a fund has been conveyed in the contract, for "behoof of the wife, exclusive of the jus mariti ; Does that assignation require to be intimated, to exclude the husband's creditors ? Such an assignation does not require to be intimated to exclude the husband's creditors ; because they are not entitled to rely on their debtor having married without a contract, and so to have ac- quired the common law rights of a husband over his wife's for- tune.^(cJ) 830. Where bank shares are bought with the wife's funds, and the transfer taken to her husband and herself; Can the bank retain the shares for a debt due by the husband ? No ; because the investment of the wife's funds in the joint names of the husband and wife is notice to the bank that she has a separate and independent interest, and that the fund is not the absolute property of the husband.^ 1 Menziea Lect., 429 (445). = Gairdners, 22d June 1815, F.C. ' KoUo, 28th Nov. 1832, 11 S., 132. (c) If there is a sequestration, the valuation is made by the sheriff or trustee ; 19 and 20 Vict., c. 79, § 54. (d) An opinion to the effect here stated was expressed in EoDo (cited), and where, as was there the case, the conveyance is by the wife, the prin- ciple is plain enough ; but if the conveyance were by the husband, the result would probably be different. The real question, however, was as to the im- port of the destination in the contract, which was substantially the same as that in Watherstone (supra, note {ff), p. 379), and it was held that the hus- band had a mere liferent. The conveyance was to the wife herself and her husband, and was practically a trust for themselves and their children. Any intimation to the husband's creditors, which is what they contended for, seems hardly intelligible. Digitized by Microsoft® 390 CONXEACT OF MAEKIAGE. 831. Where furniture, belonging to the wife, has been settled by antenuptial contract for her behoof; May it be poinded for the husband's debts ? (1) Furniture in the possession of the husband, though settled by the contract for the wife's behoof, may be poinded for the hus- band's debts ; because all moveables are presumed to belong to the husband ; (2) where the jus mariti is excluded, and the furniture is inventoried with reference to the contract, the husband's creditors are excluded ; the furniture in this case being distinct and sepa- rate from the husband's property. -(e) (3) "Where a house, and the furniture contained in it, had been conveyed by a str-anger to an unmarried woman, exclusive of ih.Q jus mariti of any husband she might marry, and the husband whom she married having come to reside in the house, it was held that the furniture was not attach- able by his creditors. ^(/) 832. Where a special fund belonging to the wife has been conveyed in the contract to the husband ; May reten- tion of it be maintained in implement of the obliga- tions in her favour ? Eetention may be maintained where the fund has been specially destined to form a security for the wife's provisions, or has been ' Macdonald, M., 5848. ^ Young, 26tli June 1855, 17 D., (e) In the case of Macdonald, cited, there was no inventory, the convey- ance was to trustees, who, however, never took possession, and the furnitm'e was found liable for the husband's debts. In Campbell, 13th June 1848, 10 D., 1280, and Brown, 19th Dec. 1850, 13 D., 873, there were inventories, but the contracts were held to be mere devices to protect the furniture against the husband's creditors while securing to him the full benefit of it, and the deeds were found ineffectual. Beyond affording facility in proving the identity of the articles, which (see Young, supra, note 2) must be done in every case, there is no advantage in having an inventory. The only rule that can be laid down seems to be, that in order to make a settlement of furniture on a wife effectual, she must be put, or left, in the position of being entitled absolutely to dispose of it at her own pleasure, uncontrolled by her husband, or the settlement must be made through the intervention of a trust with the same absolute power. (/) The exclusion, however, though effectual against the husband's credi- tors, does not put it beyond the power of the wife to convey to the husband ; per Lords Curriehill and Deas in Napier, 18th Nov. 1864, 3 M'P., 57. Digitized by Microsoft® CONTRACT OF MARRIAGE. 391 conveyed under an obligation to lay it out for her behoof.' But it is otherwise where the conveyance is absolute.^ 833. Where the tocher has not been paid ; Is the husband bound to implement the wife's provisions ? Yes ; because the marriage itself, and not the tocher, is the chief consideration for the provisions settled by the husband on the wife.^(A) 834. A sum which was destined in a marriage-contract to the wife, in case of no child of the marriage surviving the husband, or in the event of all the children dying before majority, was assigned by the wife during the life of children of the marriage, all of whom died be- fore majority ; Was the fund effectually assigned, the wife having predeceased the survivor of the children ? Yes ; because this destination does not import a conditional institution of the wife, but is a contingent debt, assignable by the wife, and due to her assignee after her own death, on the condi- tion being purified.'' 835. What is embraced under a provision of conquest? Everything acquired during the marriage by industry, economy, purchase, or donation, after deducting debts. But it does not in- clude what the husband succeeds to as executor,(i) or what he acquires by legacy or by his jus mariti.^Qc) 836. Does a provision of conquest of lands, annualrents, goods, and gear, include bonds for sums of money ? Such a provision does not embrace bonds, unless it can be » Haddington Manufactory, M., " Wightman, M., 9201. 9144. * Ersk., 3, 9, 9 ; Burden, Cr. and "■ GreenMU, 24th June 1824, 3 St., 214. S., 169. (?) ' Esrk., 3, 8, 48. {g) See also Boswell, 4th Feb. 1846, 8 D., 430, where it was observed, per Lord FuUerton, " that the rule so broadly laid dowB by Erskine " (3, 3, 86) " cannot now be received without a most important limitation." (A) Unless the words of the contract bear that the tocher was the con- sideration; Wightman (cited). (i) Heir or executor. {k) See also Diggens, 7th March 1865, 3 M'P., 609. Digitized by Microsoft® 392 CONTRACT OF MARRIAGE. shewn that they were granted for sums or moveables acquired during the marriage.^ 837. How may the wife's provisions be made preferable to the claims of the husband's creditors ? (1) By prior diligence ; (2) by a conveyance in security ; (3) by a separate investment in trust ; (4) by the exclusion in the marriage-contract of the jus mariti and right of administration, the fund being clearly distinguished and separate ; (5) by declar- ing the provisions to be alimentary.^(Z) 838. Does the acceptance of conventional provisions by a wife, after her husband's death, discharge her legal claims ? (1) Acceptance of conventional provisions by a wife discharges her right to terce ; ^ but it does not, in the general case, discharge her jus relictce.* (2) Where the provision is declared to be in satisfaction of the jus relictce, or is contained in a mutual settle- ment of the whole estate, heritable and moveable, the wife's ac- ceptance of the provision will discharge her legal claim.* But it has been held that a discharge of the jus relictce was not implied by the wife's acceptance of the liferent of her husband's whole estate under a deed to which she was not a party.*(ra) (3) Ac- ' Robson, M., 3050 ; Erst., 3, 3, May 1821, 1 S., 18 ; Fraser, 17th 30; Ivory's Note. Dec. 1835, 14 S., 174.(m) 2 Duff on Deeds, 181; Menzies » Eiddel.M., 6457; Duff on Deeds, Lect., 4.30 (445). 137. " 1681, c. 10; Ersk., 3, 9, 16. = Thomson, 8th Dec. 1849, 12 D., * Ersk., 3, 9, 16 ; Howden, 18th 276.(n) (Z) The case here contemplated is that of a provision payable as an ali- mentary allowance during the husband's lifetime, which will give the wife a JUS erediti, but not per se a preference. (m) Fraser's case was in regard to rights of children, not of wife, and re- ferred to an antenuptial contract of marriage. [n) In Thomson's case, which was at the instance of the wife's repre- sentatives, the (juestion here stated was raised, but not decided, the claim having been held barred by taciturnity. In reference to marriage-contract provisions, Erskine (3, 3, 30) lays down the opposite rule, adding, " for it is presumed that the liferent of the whole was granted in full satisfaction of her^Ms relictce, and that the husband had no intention to give her both the property of that share to which she is entitled by law and the liferent of the rest " (see Young and other cases, M., 6447, et seg.). The presumption here referred to, though it seems equally applicable to mortis causa provisions Digitized by Microsoft® CONTRACT OF MARRIAGE. 393 oeptance of conventional provisions will not imply a discharge of the wife's legal claims, if she is in ignorance of her legal rights, or of the true state of the husband's affairs.^ 839. What is the effect of a discharge by a child of his legitim during his father's life, or after his death, as regards the other children and their father's general disponee ? (1) A renunciation of legitim by a child, during Ms father's life, has the effect of increasing the legitim fund (^) falling to the children who have not renounced, in the same way as if the re- nouncer had died before the father.^ (2) But where a child re- nounces or discharges his legitim after bis father's death, such discharge operates, not in favour of the children claiming legitim, but in favour of the general disponee ; because legitim vests on the death of the father, and the shares of the children, claiming their legal rights, had become fixed before the child accepting the conventional provision (in consideration of which he discharged his legal claims) had exercised his option.' 840. How may a jus crediti be conferred on the children for their provisions ? (1) The provisions must take effect, or be capable of taking effect, during the father's life ; — as where they are payable at a 'Hope, 17tli Dec. 1883, 12 S., ^'E,T:sk.,S,d,2S;'Eog,M.,8Wd;{r) 222 ; Koss, 3d Feb. 1843, 5 D., 483 ; Pannmre, 28th Feb. 1856, 18 D., LandeUs, 2d March 1854, 16 D., 703. 715.(o) "Fisher, 16th June 1840, 2 D., 1121. does not in that case exclude the Jus relictm, but there the principle of appro- bate and reprobate comes into operation. See Leighton, 1st Dec. 1852, 15 D., 126. Mortis causa proYisions are " not inconsistent with, but corroborative of, the Jus relictce," and the widow's acceptance of them after her husband's death does not make a bipartite division of the estate ; Campbell's Trs., 15th July 1862, 24 D., 1321. See also Henderson, M., 8187. There is an oppo- site judgment, Andrews, 2d March 1836, 14 S., 589 ; but it was overruled in Fisher, 16th June 1840, 2 D., 1121, and Campbell's Trs., supra. (o) See also Keith's Trs., 17th July 1857, 19 D., 1040; Douglas, 30th June 1859, 21 D., 1066. {p) Or rather " the share of the legitim " falling to them ; its amount is in every case either a half or a third. (r) AfSrmed 7th May 1792, 3 Pat. App., 247. Digitized by Microsoft® 394 CONTBACT OF MARRIAGE. term certain, or any other period which may arrive during the father's life ; or where they hear interest from such term or period ; or (2) The provisions must be of such a nature as to place the father under restraint ; — as where he is taken bound not to con- tract debt to the prejudice of the children's provisions ; or (3) They must be of such a nature as, when duly carried out, the father will be divested ; — as a conveyance of a particular sub- ject to himself in liferent allenarly, and the children in fee ; or a conveyance to trustees for behoof of himself in liferent, and the children in fee ; or an obligation to give the children infeftment in a particular subject de presenti, or at a fixed period which may arrive during the father's lifetime.' 841. How may a preference be conferred on the children for their provisions in competition with the father's cre- ditors ? (1) By divesting the father of the fee by infeftment where the provisions consist of heritage ; (2) by a separate investment in trust ; (3) by preferable diligence in security of provisions, under which the children have a, jus crediti.^ 842. Does the acceptance by a child of a conventional pro- vision exclude his legitim ? (1) When the provision is a special bequest, the presumption is in favour of the child having right to it over and above the legal provision, since otherwise the bequest would be inoperative.^ (2) If the provision is contained in a settlement of the father's whole estate, heritable and moveable, the child is not entitled both to the provision and to legitim, for if he accept the one, he is held to have abandoned the other. *(i) (3) The legitim will be dis- lErsk., 3, 8, 40; Bell's Prin., June 1829, 1 S., Y34; Macdowal, 1985 ; Duff's Feud. Couy., 419 ; 10th July 1833, 11 S., 952 ; Fraser, Menzies Lect, 646 (679). 17th Dec, 1835, 14 S., 174. 2 Ersk. and Bell, supra. * Henderson, M., 8191 ; Collier, ' Ersk., 3, 9, 23 ; Howden, 18th 6th July 1833, 11 S., 912. See Ste- May 1821, 1 S., 18 ; Smith, 10th veuson, 7th Dec. 1838.(s) (i) Reported, 1 D., 181. (t) The rule is not quite accurately stated here. In Howden (cited, supra, note 3) the settlement was of the father's whole estate, but it was held that legitim was not excluded. The principle seems to be, that where the settlement is one for distribution of the whole estate among the children, any one of them taking legitim must give up his provision under the deed. Digitized by Microsoft® CONTRACT OF MAEEIAGB. 395 charged where the provision accepted has a condition annexed that it shall be in fnll satisfaction of legitim.^ (4) Acceptance will not imply discharge if the child is in ignorance of his legal rights, and of the true state of his father's affairs.^(t(). 843. A father granted a provision to his daughter in liferent allenarly, and to her children in fee, declaring the same to be in lieu of legitim. The daughter repudi- ated the provision, and claimed legitim ; Was the right of her children to the fee excluded ? No ; it having been held that the repudiation of a liferent pro- vision granted to a parent does not affect the right of his children to the fee.*(2/) 1 Macgill, M., 8179 ; Campbell, " Fisher, 24th Nov. 1831, 10 S., M., 8187 ; Begg, M., 12851. 65 ; Collier, 6th July 1833, 11 S., ^ LandeUs, 2d March 1854, 16 D., 912.(a:) 715. (m) The case of LandeUs (or Selkirk) referred to a widow, but the point here stated will be found in Panmure, 21st Nov. 1854, 17 D., 85 ; Keith's Trs., 17th July 1857, 19 D., 1040. See also Douglas, 30th June 1859, 21 D., 1066. The election cannot be delayed to see the result of contingencies, but must be made so soon as the necessary information as to the estate is got ; Keith's Trs., supra ; unless prevented by necessary cause, such as minority. A, by trust-disposition and settlement, conveyed his whole estate, which, so far as personal, was about £5000, to trustees for behoof of his spouse in life- rent, under burden of the maintenance and education of the children of their marriage, and for behoof of the children in fee, equally among them, the shares of such children not to vest till the death of their mother. He died, survived by his wife and two children. The trustees were named tutors and curators to the children, but never acted in that capacity, and never made up inventories in terms of the Act 1672, c. 2. They paid to the widow the whole annual income, and she maintained and educated the child- ren, one of whom died at the age of seven, and the other at the age of nine- teen, after having married, on which occasion the mother settled, during her own lifetime, on her daughter and her husband, and their children succes- sively, an annuity of £200. Held, after the daughter's death, that the re- presentatives of her and her brother were entitled to claim legitim, and that the daughter and her husband did not, by acceptance of the marriage-con- tract provision, homologate the father's settlement, they being at the time ignorant of their legal rights ; Paterson, &c. (Ritchie's Trs.), 15th May 1866, 4 M'P., 706. {x) Harvey's Trs., 80th Jan. 1863, 1 M'P., 345, may also be referred to. («/) Subject to any diminution occasioned by the parent taking legitim. The children's right emerges on the death of the parent, and the liferent Digitized by Microsoft® 396 CONTRACT OF MARBIAGE. 844. What is an infeftment in locality ; and what is the form of the deed hy which it is constituted ? Locality is the apportionment of certain lands to the wife after her husband's death, for lier liferent use, under which, when com- pleted, she obtains a real and perfect right of liferent, not restrict- able by a subsequent diminution of the yearly value of the re- mainder of the estate. It is constituted by an obligation in the contract, or separately, by which the husband provides and dis- pones the lands to the wife in liferent (or binds himself to infeft the wife in liferent) after his decease, to be holden de se, but sub- ject to a proportional part of the public burdens ;^ and it is com- pleted by infeftment, or by registration of the deed, with a war- rant of registration thereon, in the Eegister of Sasines. As this deed is neither a security over lands nor the rents, but is in effect a liferent disposition, it is doubtful whether a real right under it can be completed by registration (without a warrant), in terms of the Heritable Securities Acts ; but the interpretation clause of the Titles Act appears to be sufficiently comprehensive to embrace this instrument. 845. When it is desired to make the wife's provision by locality of a definite amount ; How may this be ac- complished ? (1) By introducing a clause making the wife accountable to the heir for the surplus of the rents of the locality lands above a cer- tain fixed annuity ; or (2) by binding the wife to grant a tack of the locality lands to the heir at a fixed rent f or (3) by specifying 1 Jur. St., i, 197. '' lb., i, 198. interest falls not into residue, but to tlie parties whose beneficial interest is diminished by the election ; Sinclair's Exrs., 11th Dec. 1852, 15 D., 212. A conveyed his estate to trustees for payment of the annual income to his widow, and after her decease to B, his only child, during her lifetime, exclusive of the jus mariti, declaring the provision to be in full of all her legal claims, and on the termination of the liferents to make over the trust- estate to his own nearest heirs, or to any person or persons to whom he should destine the same by any writing. He executed no such writing, and after his death B and her husband claimed legitim. Held, on the death of the widow, who also had a power of disposal under the deed, which she did not exercise, that the fee of the estate was vested in B ; Balderston, 23d Jan. 1857, 19 D., 293. Digitized by Microsoft® CONTKACT OF MARRIAGE. 397 a minimum annual rent of the locality lands, and binding the heir to make up the amount when the rental sinks below it.(z) 846. Where lands have been conveyed by antenuptial con- tract to the father in liferent, and the heirs of the marriage in fee, whom failing, the heirs whomsoever of the father ; What is the effect of alienations by the father in a question with the heir of the marriage, or with the heirs whomsoever ? (1) Gratuitous alienations are reducible at the instance of the heir of the marriage, as contra fidem tabularum nuptialium, the father being under an implied obligation not to defeat the destina- tion in the marriage -contract by a gratuitous deed.^(a) Onerous alienations are effectual f but if the father sell the lands, the heir is entitled to indemnification from his separate estate or funds, at his death, to the amount of the price received. ^(c) (2) The destination being gratuitous as regards substitutes called after the heirs of the marriage, all alienations by the father, whether oner- ous or gratuitous, are unchallengeable by the heirs whomsoever.* 847. May the father be restrained by inhibition from making alienations prejudicial to the rights of the children under the marriage-contract ? (1) Where the children have a jus crediti — as where the pro- vision is payable during their father's life,((f) or where the father 1 Graham, M., 13010; Ewen, 15th = Bell's Prin., 1987; E.ofWemyss, Jan. 1824, 2 S., 612. 28th Feb. 1815, E.G.; aff.(6) 2 Ersk., 3, 8, 39. * Ersk., 3, 8, 39 ; Craik, 4313. (z) The first of these plans would not meet the case of the rents falling below the annuity, and the third would not meet that of their rising above the minimum, but a combination of the two would serve these purposes. The efficacy of the second might depend on the heir's willingness to take a lease at the rent named. (a) It may be observed that in Graham the destination to the husband was not in liferent, and in Ewen there was no destination, but an obligation by the husband in favour of the children ; but the rule is correctly stated. (5) 6 Pat., 390. (c) The claim is limited as here stated, and does not extend to the value of the estate when the succession opens. If the father should burden the estate with debt, the heir would have a claim of relief against his separate estate; Cunningham, 20th Dec. 1810, E.G. (d) Care must be taken in framing the provision to secure this effect. Digitized by Microsoft® 398 CONTRACT OF MAEEIAGE. is bound to infeft the children at a particular term, or is bound not to contract debt so as to defeat the provisions, — they may protect themselves by inhibition ; because they are proper creditors of the father, and as such are entitled to use all competent diligence.' (2) But where they have merely a spes successionis, — as where the provision is not payable till after the father's death,(e) or the lands are destined in general terms to the heirs of the marriage, — inhi- bition is ineffectual ; for although that diligence is effectual to se- cure a valid obligation, it cannot extend or make valid an imper- fect obligation.^ 848. Where lands are disponed to a parent in liferent allen- arly, and the heirs of the marriage in fee ; How may a real right, under the destination, be completed ? (1) Where the conveyance contains a precept of sasine, by in- feftment in the precise terms of the destination, to the parent in liferent allenarly, and the heirs of the marriage in fee.^(/) (2) By expeding and recording a notarial instrument under the Titles to Land Act, Schedule B or Schedule K (g) in terms of the destination. (3) By recording the conveyance in the Eegister of Sasines, with a warrant of registration on behalf of the parent in liferent allenarly and the heirs of the marriage in fee, to be signed by the parent (A) on behalf of himself and for the heirs of the marriage. 1 Ersk., 3, 8, 40 ; Douglas, M., . = Newlaud's Crs., M., 4289 ; Honl- 12910. ditch, 9th June 1847, 9 D., 1204 ; 2 Ersk., 3, 8, 39; Gordon, M., Barstow, 18th Feb. 1858, 20 D., 4398. 612.(/) In one case, though the proTisions were made actually payable at majority or marriage, the children were unable to compete with the father's creditors, because they were so expressed as to prevent their proceeding against him ; Children of M'Tavish, 18th Nov. 1787, M., 12922. (e) But in this case, if it is made to bear interest from marriage or majo- rity, it will be effectual; Crs. of Mackenzie, 2d Feb. 1792. M., 12924. (/) In Barstow, sasine was given to the wife for herself and children, though the precept was as here stated. [ff) Schedule K, being applicable only to parties acquiring right to unre- corded conveyances, would not be appropriate here. (A) A warrant signed by the parent would probably be inept. He would at all events require to represent himself as ai/ent, which may perhaps not be within the meaning of " agent " in the Act and Schedule ; but there seems to be no difference in principle between a person acting as agent in the sense of tlie Act for children nascittiris, and an attorney receiving sasine Digitized by Microsoft® CONTBACT OF MARRIAGE. 399 The competency of the last method, however, is doubtful, as the Titles Act requires the subscription of the person on whose behalf the deed is presented for registration, or of his agent; a require- ment which, of course, cannot be satisfied in the case of heirs nas- eituri. 849. A, infeft in lands, conveyed them in his antenuptial contract to himself in liferent allenarly, and to the heirs of the marriage in fee, and sasine followed in favour of A in liferent allenarly ; A having become bankrupt, what right had his trustee in the lands ? The trustee had right to the fee, as it remained vested in A by the original title, the conveyance in the marriage-contract having been feudalised only to the extent of a bare liferent in A.^(«) 850. Lands were conveyed by antenuptial contract to a parent in liferent, and the heirs of the marriage in fee, and infeftment followed accordingly in favour of the parent and the heirs of the marriage ; Was the fee at- tachable by the parent's creditors? Yes ; because under the destination the parent is fiar, the heirs of the marriage having merely a spes successionis ; and as infeftment does not amplify the children's right, it can give them no preference which is not theirs by the destination.^ 851. What is the construction of destinations in marriage- contracts to "heirs and children of the marriage," and "bairns and children of the marriage"? (1) Under a destination to "heirs and children of the mar- riage," the eldest son takes the heritage, and the moveables are divided equally among the younger children. ^(/c) But an excep- 1 Newlaud's Crs., and Houlditch, " Macdoual, M., 12844 ; Fairser- supra, p. 398, note 3. vice, M., 2317., " Fulton, Jan. 1811, Hume, 533. for them, so that there -would not be the same objection to an agent signing the warrant, though, as it would probably not be desired to record the whole deed, a notarial instrument would be the most convenient form. (i) The same principle had been recognised in Graham's Crs., 4th July 1159, M., 6931. See also Dundas, 23d Jan. 1823, 2 S., 145. (A) The rule is as here stated, but the settlement was in Macdoual (cited) altogether of moveables, and in Fairservice altogether of heritage. In a prior case, Wilsons, M., 12845, a settlement of lands, money, and con- Digitized by Microsoft® 400 CONTRACT OF MAERIAGE. tion obtains in the case of burgage subjects of small value, where the destination is held to import an equal interest to all the children. '(Z) (2) Under a destination to the " bairns and children of the marriage," the whole children are entitled to succeed equally.^ (3) It is said that a provision of conquest to " heirs and bairns," imports an equal right in all the children ; ' but neither Professor G. J. Bell^ nor Professor Menzies^ recognises the distinction. 852. The fee of the conquest having been settled upon "the children of the marriage," with a power of division to the father, and the titles of an estate subsequently acquired having been taken to the father, and his heirs and assignees ; Was the eldest son entitled to the estate, to the exclusion of the younger children ? State the reason. No ; because a destination to children of the marriage imports an equal right to the whole, and the taking of the titles of the estate to the father, and his heirs and assignees is not held by implication to be an exercise of the power of division in favour of the heir at law.^ 1 Watson, M., 985. ' Bell's Prin., 1977. 2 Carnegie, M., 12840; Jardine, ' Menzies Lect., 656 (689). 22cl Jan. 1850, 12 D., 504. ° "Wilsons, 14tli June 1811, Hiime, ' Duff's Feud. Conv., 413 ; AUar- 534. (m) dice, 12th Feb. 1721, Eob. App., 399: Rankin, M., 14931. quest on " the heirs and bairns " of the marriage was held to give an equal right to all the children ; but the deed contained a declaration " that the provisions above written, conceived in favour of the said children, shall be divided and proportioned among them as the said Andrew Wilson shall think fit." (l) This rule seems to apply only to tenements, and not to lands held burgage ; Dollar, 4th Dec. 1792, F.C., M., 13008. Here lands so held, and worth from about £70 to £100 of yearly rent, were in a son's marriage-contract disponed by his father " to him and his wife in liferent, and to the heirs or children, one or more, lawfully to be procreate of the marriage, in fee (as shall be disposed of by the father to them).'' The father afterwards dis- poned the whole to the eldest son, and the disposition was sustained in a question with the other children, but in the procuratory the words "or children " were omitted, and the ground of judgment which reversed that of the Lord Ordinary does not appear. (m) See also Jardine, supra, note 2. Digitized by Microsoft® CONTRACT OF MARRIAGE. 401 853. Lands were conveyed by antenuptial contract to the spouses in conjunct fee and liferent, and the heirs of the marriage nascituri ; and the father granted a gra- tuitous conveyance of the lands to his eldest son as the heir of the marriage, his heirs and assignees ; Was the conveyance effectual to exclude the second son as heir of the marriage at his father's death, the eldest son, vfho predeceased that event, having conveyed the lands to a stranger by settlement ? Yes ; it being within the father's power to implement the contract by granting a de presenti absolute conveyance to the existing heir of the marriage, though it should exclude the chance of succession of the other children. '(ra) 854. What declaration or provision ought the contract to contain in order to exclude the heir of the marriage from discharging in favour of his father his rights under the deed ? (1) The contract may contain a declaration that such a dis- charge should be void and of no effect in excluding the issue of the marriage (other than the granter of the discharge), who, under the destination in the contract, should be entitled to succeed to the lands on the death of the husband; or (2) it may contain a declaration that the term "heir of the marriage," should import the jperson possessing that character on the death of the husband, and none other; or (3) the lands may be destined not to the heirs of the marriage generally, but to the eldest son or heirs of the intended marriage alive at the death of the husband.^ 855. Where danger is apprehended of the wife being induced 1 Bell's Prin., 1970 ; Duff's Feud. " Duff's Feud. Cout., 402 ; Jur. Conv.,400; Sandford on Succession, St., i, 195. i, 247 ; Trail, M., 12985. {n) Under marriage-contracts the heir of the marriage cannot assign his right of succession to a third party, so as to make the assignation effectual in the event of the heir predeceasing his father ; Maconochie, 12th Jan. 1780, M., 13040 ; but he may transact with his father and discharge his right, so as to bind his own heirs, thoagh he should die before his father ; Eoutledge, 19th May 1812, F.C. ; aff., 2 Bligh, 692. 2c Digitized by Microsoft® 402 CONTRACT OF MAREIAGE. improperly to renounce her provisions, how may this be prevented in the contract ? By inserting a clause declaring that it shall not he in the power of the wife to restrict, discharge, or burden her provisions without the consent of certain parties named, it being provided that any deed granted by her affecting the provisions without such consent shall be void, and that the provisions shall subsist for her aliment and maintenance as if no such deed had been granted. (2) Or the desired object may be accomplished by an antenuptial trust, which, when duly constituted, is irrevocable.' 856. Is it necessary to declare the provisions to the younger children to be a burden on the estate destined to the heirs of the marriage ? (1) Where the father is not divested of the fee, as where the destination is to the spouses in conjunct fee and liferent, and the heirs of the marriage, it is unnecessary to declare the younger children's provisions to be a burden on the estate, because the provisions are equally onerous as the destination, and must be paid by the heir, if there be an insufficiency of personal estate. (2) But where the father is divested of the fee, or has only a fiduciary fee, the younger children's provisions must be declared in the contract to be a debt against the heir .of the marriage or the estate.^ 857. May the father make provisions for the younger children by burdening the subjects conveyed to the heir, or by a conveyance of part of the subjects themselves ? The father may burden the subjects with rational provisions to the younger children, where no provision has been made for them in the contract ; but he cannot provide for them by a direct conveyance of part of the subjects, as that would be an alteration of the destination.^ 858. Where heritable security has been granted, and infeft- ment taken thereon, for antenuptial provisions to children, payable after the father's death ; Can the > Jur. St., i, 202. ' Bruce, M., 13036 ; Dykea, 9th ' Duff's Feud. Cony., 417. Feb. 1811, F.C. Digitized by Microsoft® CONTRACT OF MARRIAGE. 403 children compete with the father's creditors for their provisions ? (1) Where the provisions are not payahle till after the father's death, the children have no jus crecUti, and cannot compete with the father's onerous creditors, although heritable security has been granted for the provisions,(o) on the principle that a security (o) The doctrine here stated ia in conformity with Brown, cited {infra, p. 404, note 1), but that case was decided by the narrowest possible ma- jority, and since then an ojjposite "view seems to have been taken. The obstacle to the validity of the security was supposed to lie in its incom- patibility with an obligation merely contingent, but this view seems equally fatal to a security through trustees ; and accordingly. Lord Medwyn (Her- ries & Co., 9th March 1838, 16 S., 948, cited, infra, p. 404, note 2) doubted whether in such a case an infeftment, " although to trustees for the children," " would enable the children to compete in the father's life- time with his onerous creditors," but he admitted that the security would take effect after the father's death. A cautioner's relief, however (whose obligation is as contingent as the other), can be secured by infeftment. In the same case. Lords Meadowbank, Corehouse, FuUerton, Moncreiff, Jeffrey, and Cockburn said in a joint opinion (in which they questioned the' authority of Brown, supra) — "If the father's heritable estate is en- gaged for the performance of his obligation by an infeftment over it, standing in the person of the children, or what is precisely equivalent, in the person of trustees for their behoof, the plain language of that engage- ment is that the provision shall be made effectual by means of the infeft- ment if the father fails to do so out of his other means." In Herries & Co. the security was through trustees, and a real burden on the father's infeft- ment, and was found effectual against creditors. In a later case, where the obligation was to pay to the wife in liferent and the children in fee, and the conveyance in security, which was in the same terms, was followed by in- feftment, the claim was found preferable in competition with creditors, the ground of whose challenge, indeed, rested entirely on objections to the for- mality of the sasine ; Barstow, 18th Feb. 1858, 20 D., 612. The principle which ruled that case is laid down in Bell's Com., i, 640, and was quoted and adopted by Lord Moncreiff in Goddard, 9th March 1844, 6 D., 1018. See also observation ^er Lord Deas in Napier, 18th Nov. 1864, 8 M'P., 57 — " The circumstance that the right of these heirs was only contingent would not have been fatal to the real burden, for a real burden may be effectually created although the right is merely contingent." It is therefore thought that a principle somewhat different from what is stated in the answer has now been recognised, and that heritable security can be effectually given, even for provisions that confer no jus crediti, by means of infeftment in liferent allenarly in favour of the parents, or either of them, and of the children nascituri in fee, thereby vesting a fiduciary fee in the former for behoof of the latter. In reference to another principle which has been supposed to create a diffi- 2c2 Digitized by Microsoft® 404 CONTRACT OF MAKEIAGE. is only accessory to the principal obligation.' (2) But where the heritable security is constituted in the person of a tnistee, that will give the children a preference, since by this means the father is divested of the fee.^(r) 859. Can the children enforce an obligation by the father to invest a sum of money in security of their provi- sions ? "Where, from the terms of the provision, the children have a jus crediti, and not merely a spes succession-is, implement may be enforced by action or diligence, if the father has the means of f&lfilling his obligation, without disposing of effects which form the source of his livelihood.^ (3.) Postnuptial Settlements. 860. In what respects do provisions to the wife in antenuptial and postnuptial contracts differ in effect ? The provisions and prestations in an antenuptial contract, being conditions of the marriage, are onerous, and not only bind the parties themselves, but are effectual as against creditors to raise a, jus crediti, or give an absolute preference.(ii) Postnuptial settlements, on the other hand, are not so highly onerous as 'Brown, Ist Feb. 1820, F.C. ; 110; Hemes, Farquhar, & Co., 9th Poole, 22d Feb. 1834, 12 S., 481.(jo) March 1838, 16 S., 948. 2 Bushby, 23d June 1825, 4 S., ' Henderson, M., 6563 ; Duff's Feud. Conv., 420. culty in such matters, the Lord Justice-Clerk Hope observed in Barstow, supra- — " I am not satisfied that the Court is bound to adopt the notion that the fee cannot, to use the common phrase, of itself a fiction, be in pendente, except in the exact class of cases in which the Court have proceeded on that rule ; and hence, that if the interests of parent and child are really not a liferent and a fee in the same estate, there will not be a security for the fee to the children to be bom ; I give no opinion on that question." (p) This was not a case of marriage-contract provisions. (r) If by this is meant that the father is divested of the subject of the security, it is incorrect. A security being a mere burden on the fee, the father would not be divested, and it is not necessary to the efficacy of the security that he should he so. (s) If appropriately and effectually framed for this purpose. Digitized by Microsoft® POSTNUPTIAL CONTRACTS. 405 antenuptial provisions, the parties after tlie marriage not being independent contractors, but having a common right in the goods in communion, and a mutual interest adverse to the interest of creditors. Provisions of the latter class, therefore, are revocable, unless rational or remuneratory, and the general rule is, that they have no effect as against the husband's creditors, when granted after his insolvency. i The natural obligation, to aliment a wife, however, has been held to sustain a postnuptial provision to a moderate extent, though granted when the husband was insol- vent.2(^) 861. To what extent are postnuptial provisions to the wife effectual in competition with creditors ? (1) Where there is no antenuptial contract, a postnuptial provision to the wife will be effectual if moderate in amount, and if the husband is solvent at the date of granting it ; " but such provisions will be set aside, in so far as they are excessive and disproportionate to the husband's means at the date of the provi- sion.* (2) Where there has been an antenuptial contract, postnuptial provisions are accounted donations revocable by the parties, either expressly or tacitly by the contraction of debt, and are therefore ineffectual in competition with creditors.' 862. What is the effect of a discharge by a wife, without consideration, of provisions in her favour in an ante- nuptial contract ? The discharge is revocable as a donation, inter virum et uxorem. 863. Where the husband, by an investment in name of trus- tees, makes a postnuptial provision to his wife in ad- dition to her provisions in the antenuptial contract ; Is the postnuptial provision revocable ? > Ersk., 4, 1, 33, 34 ; BeU's Prin., May 1825, 4 S., 32 ; Sharp, 19th 1942; Menzies Lect., 437 (453). Jan. 1839, 1 D., 396. " Ferguson, M., 1001. * Ersk., 1, 6, 30; Short, M., 6124. ' Ersk., 1, 6, 30 ; Jeffrey, 24th « Ersk., 1, 6, 30 ; M'Lachlan, 6th July 1839, 1 D., 1177. {t) See Bell's Com., i, 642. Digitized by Microsoft® 406 POSTNUPTIAL CONTEACTS. (1) If the provision is onerous and remun oratory, it will be irrevocable ; not in virtue of the trust, but on the principle of mutual contract. '(«.) (2) If the provision is without proper con- sideration, it is revocable as a donation inter virum et uxorem,{x) and the power of revocation cannot be elided by giving it nominally or in trust to a third party. ^ (3) If the deed by which the pro- vision is granted contains a right in favour of a third party, it is said to be wholly irrevocable.^(2/) 864. May a father encroach on children's provisions in an antenuptial contract by settlements on the wife and children of a second marriage ? (1) A father may effectually settle rational provisions upon the wife and children of a second marriage, although such pro- visions should encroach on the provisions to the children of the first marriage, if he has no other fund out of which he could pro- vide the second wife and children.'' (2) But he cannot make such provision by a direct conveyance of a portion of the subjects des- tined to the heirs of the first marriage.'* (3) If the father by the first contract has been divested of the fee, or the fund placed be- yond his control, it is doubtful whether he can affect the provi- sions in the first contract by subsequent settlements. '^(z) 1 Hepburn, 6th June 1814, 2 Dow's * Erst., 3, 8, 42, App , 342. » Duff's Feud. Conv., 418; Brace, ^Ersk., 1, 6, 29; Sanders, M., M., 13036; Dykes, 9th Feb. 1811, 6108; Jardiue, 17th June 1830,8 F.C., ;). Lord Pres. Blair. S., 93Y. » Guthrie, 21st Nov. 1846, 9 D., = Ersk., 1, 6, 29. 124.(«) (m) Gentles, 23d June 1826, 4 S., 749, which see as to effect of provisions to third parties. [x) Circumstances in which held not reyocabje ; Rust, 14th Jan. 1865, 3 M'P., 378. [y] It is the right in favour of the thirj party that is irrevocable ; Heis- leid, M., 6087 and 6106, where a husband having obliged himself by ticket to his wife to pay her and her former husband's debts, it was held that he could be sued thereon at the instance of any of the creditors. (z) In Guthrie (cited) there had been a conveyance to trustees for the first family ; the father conveyed part of the trust property to his second wife, who was infeft before the trustees. In a reduction at their instance, the Court was equally divided aa to whether the second wife's security Digitized by Microsoft® POSTNUPTIAL CONTRACTS. 407 865. Where security for an antenuptial provision has been given by the husband during the marriage, and while insolvent, will it be sustained in competition with creditors ? The security will be sustained, notwithstanding the husband's insolvency at the time ; as having been granted for a just oause.-'(o) (4.) Bonds ofP: rovision. 866. Whether are bonds of provision to wife and children held to be in fulfilment of, or in addition to provisions secured to them by marriage-contract ? (1) Where the bond to the wife does not express the cause of granting, it is reckoned in fulfilment of the wife's marriage-con- tract provisions ; on the principle debitor non presumitur donare.'^ (2) If the bond bear to be granted from favour and affection, it is reckoned an additional provision.^ (3) Bonds of provision to children are, from the presumption of paternal aifection, held to be additional in the absence of a declaration to the contrary ;'' but the presumption may be overcome by circumstances shewing an opposite intention on the part of the father.^ (4) Provisions to a daughter in her marriage-contract are held to be in implement of obligations in the marriage-contract of her parents ;^ but there is no presumption in law that tocher settled upon a daughter is to be taken in implement of provisions in a voluntary settlement by the parent.' ' Mackenzie, M., 958 ; Campbell, ' E. of Wemyss, 23d Nov. 1810, M., 1000. F.O. 2 Menzies Lect., 44] (458). ° Ersk., 3, 3, 93 ; Robertson, M., « Fenton, M., 11491. 9619. *Er3k., 3, 3, 98; Clark, 16th May ' Kippen, 21st May 1858, H. of 1823, 2 S., 313. L.(6) should be restricted or set aside. The case was afterwards compromised with- out any judgment. (a) In so far as regards the wife this answer is supported by Mackenzio and Campbell, cited ; but as regards children, the case would come under the Act 1621, and be reducible ; Queensberry, M., 961. (6) Eeported, Court of Session, 7th July 1856, 18 D., 1137 ; H. of L., 20 D., 11, 3 M'Q , 203. In both courts the Judgment was that of a majority. By voluntary settlement is here meant a testament o^ mortis causa deed. Digitized by Microsoft® 408 BONDS OF PROVISION. 867. What is the effect of a bond of provision to a child, pay- able at majority, or at a certain date, where the child dies before the term of payment ? (1) Where the bond is payable at majority, it lapses by the child's predecease, majority being a condition of the obligation ;(c) on the principle, dies incertus pro cmiditione habetur} But if the predeceasing child have left issue, such issue will be entitled to the provision.^ (2) Where payable at a certain date, the bond viken delivered, vests in the child, and will be payable to his next of kin,(e) although he predecease the term of payment.^(/) 868. A provision was granted by a father to a son, and his heirs and assignees, payable at the father's death. The son died before the granter, leaving issue, and a will in favour of his widow ; Was the provision exigible, and by whom ? State the reason. The provision is exigible by the son's issue, to the exclusion of the widow ; on the principle that a provision is not assignable until it has vested in the grantee, and that it does not lapse by the grantee's predecease if he have left issue, such issue being entitled to the provision. ■'(/i,) 1 Edgar, M., 6325 ; Omey, M., = Campbell, M., 6342.f/) 6340 ;((?) Bell's Prin., 1990. * Camptell, supra..(g) « Wood, M., 18043 ; Binning, M., 18047. (c) The same rule holds if the hond is payable at marriage and the child dies unmarried. (d) In Omey the provision was by a grandfather, in which case the rule is the same. (e) Or assignee. (/) The case of Campbell, cited, may be contrasted with that of Bells, M., 6332, which, though it seems to contradict, really confirms it. In this case (Bells) the bond "was payable " at the term of Whitsunday 1747, which would be the first term after his attaining to the age foresaid," sixteen. The child died before sixteen, and the provision was found not due, the re- ference to a certain age being held to import a condition that he should at- tain that age notwithstanding the fixed term of payment. [g) The report of Campbell does not contain the point here referred to. (A) It makes no difference in regard to the condition si sine liberis whe- ther the bond is conceived in favour of heirs and executors or not ; Kussell, 10th March 1769, F.C. ; Wood, 26th June 1789, F.C. Digitized by Microsoft® BONDS OF PROVISION. 409 869. A party conveyed a fund to trustees, directing the life- rent produce to be paid to A and B, spouses, and tlie survivor of them, and on the death of the survivor the capital to be made over and accounted for to the child or children of the marriage. The only issue of the marriage was a daughter, who survived A but prede- ceased B ; Was a bequest of the fee of the fund by the daughter effectual ? It was held that the bequest by the daughter was not effectual, the right to the fee not having vested in her.'(«) ' Boyle, 14th May 1858, 20 D., 925.(i) (i) In Boyle, cited, there was a point not stated in the question, and which is not noticed either in the rubric of the report or in the digest (4, 511) of the case, but which seems sufficient for the disposal of it, and was the basis of the opinions of the majority of the judges on which the decision proceeded. The deed directed that on the death of the surviTing spouse the property should " be made over and accounted for to the child or child- ren then existing of the marriage ;'' in reference to which direction, it was observed, in the opinion of the Lord President, Lords Ivory, Curriehill, Benholme, Neaves, Ardmillan, and Mackenzie — " "We consider these words to be plain and decisive, limiting the beneficiaries to those children alone, one or more, who should survive the last surviving parent." The same principle had been applied, Lockhart, 26th Feb. 1858, 20 D., 690. Boyle therefore is not in point, and the precise case put in the question seems never to have occurred. It appears to have been held, however, that pro- visions such as that referred to vest a morte testatoris in the children, where more than one, as a class, though not to the effect of being assignable before the term of payment ; Cattanaoh, 2d July 1858, 20 D., 1206, and Maitland's Trs., 15th March 1861, 23 D., 732, ^cr Lord Justice-Clerk. This principle seems, so far as the vesting goes, equally applicable where there is only one child ; but there still remains the question as to the power of such child to assign. In Maitland's Trs., supra, the general rule on this point was re- laxed. Here a party directed his trustees, on his youngest child attaining majority, to divide the residue of his estate among his children, or the sur- vivors or sui-vivor of them, the issue, if any, of any predeceaser to take his share. There were three children, of whom one predeceased his father, and the other two died in minority, and all without issue, but the youngest left a will. Held that the whole residue had vested in him, and was carried by his will. This case comes very near to the one put in the question, and if it is to be held as of authority, would probably rule it, and lead to the op- posite conclusion to that stated in the answer ; but it is to be observed that Maitland's Trs. was decided before the judgment of the House of Lords was given in Donaldson's Trs., 14th Feb. 1862, 24 D., 1, 4 Macq., 314. See infra. Digitized by Microsoft® 410 BONDS OF PROVISION. 870. What is the distinction between conditional institution and substitution ? A conditional institution is a conveyance or destination to a per- son, in the event only of an expressed condition being purified, his right vesting at once on the purification of the condition, but being completely evacuated if the condition should take effect. Thus a destination to A, in the event that B should predecease the disponer, is a conditional institution to A, -whose conditional right becomes absolute if B die before the disponer, but is entirely out off in the event of the survivance of B. Substitution, on the other hand, is the naming of an heir to a disponee, or the appoint- ment of a person to succeed to the grant after the death of the in- stitute or person first called, the substitute's right subsisting, not- withstanding the succession of the institute, yet defeasible by the latter, who may " alter and dispone at his pleasure during his life."^ A destination to A, whom failing to B, is a case of substitution. " Where there is a proper conditional institution, the deed will entirely fall and be evacuated if the condition should not be puri- fied ; but where there is a substitution, the deed subsists, and the substitiTte may .claim under it at any time till the destination in his favour shall be altered."' — Professor More.-(V) 871. A sum of money was bequeathed to A in liferent, and the heirs of her body in fee, whom failing to C ; Whether did the bequest after A's death belong to the executor of A's son, who predeceased, or to C ? It was held that the bequest belonged to the executor of A's son, as the destination imported a conditional institution and not a substitution of G ; substitution not being presumed in dubio m 1 Stair, 3, 5, 51. More's Notes, 327 ; Duff's Feud. « Stair, 3, 5, 51 ; Ersk., 3, 8, ii ; Conv., 104. (A) (/c) XMs reference is wrong, and tlie passage referred to has not been found. {I) But a proper substitution also implies a conditional institution as the lesser right, and if an institute die without having acquired a vested in- terest, the person substituted succeeds, not as substitute, but as conditional institute ; M'Laren on Trusts, ii, 243. Digitized by Microsoft® BONDS OF PROVISION. 411 grants of moveables, which are not naturally the subject of such a destination. '(m) 872. What is the effect of substitutions of children to each other in bonds of provision ? (1) If the institute die, leaving children, they take in prefer- ence to the substitute ; under the condition si sine liberis deces- serit.^(o) (2) The substitution cannot he disappointed gratuitously.^ (3) It may be defeated for causes which are reasonable, though not strictly onerous.* 873. A provision is made to children of £5000 if there be one child of the marriage, £7500 if there be two, and £10,000 if there be three or more, under the declara- tion, that the share of a child dying before the provi- sion was paid, or became payable, should revert to the survivors ; and two children died in infancy, and a third survived ; What is the extent of his right ? The surviving child is entitled to the £10,000, this being a 1 Brown, M., 14863. (m) = Macreadie, M., 4402. 2 Eougheads, M., 6403.(>i) * Smith and Wallace, M., 4332. (m) Taking Brown, cited, as the basis of this answer, it is to he under- stood that A's son suryived A hut predeceased C, and there was a circum- stance in that case on which, though not necessary for the judgment, it appears from the report in Bell's Sto Cases (p. 310), though not in the Dic- tionary, that at least some of the judges rested their opinion, viz., that A's child died in infancy, hut that her father, as her administrator, had during the infant's lifetime obtained decree against C, who was the executor and universal disponee of the testator, and the child having died before payment was got, the father confirmed executor, and claimed the legacy. This might have been held equivalent to ^reducing the bequest to possession, the want of which was the ground of C's claim, or as barring C, who was the party liable in payment, from claiming, in respect that he was in mora. See Ans. 941, and note. [n) See also Mags, of Montrose, M., 6398 ; Mackenzie, M., 6602. (o) The presumption on which this rule rests may be excluded by cir- cumstances founding an opposite presumption, and the substitution receive full effect though there are children ; Earl of Lauderdale, 19th May 1830, 8 S., 771. See on the effect of the condition, Sturrock, 29th Nov. 1843, 6 D., 117 ; Douglas, 21st Dec. 1843, 6 D., 318 ; Black, 17th Feb. 1844, 6 D., 689 ; Thomson's Trs., 10th July 1851, 13 D., 1326. Digitized by Microsoft® 412 BONDS OF PROVISION. case of conditional institution, and not substitution. If the, sur- viving child had been a substitute, no right could have arisen to the shares of the predeceasing children, as such shares had never vested in them.'(|?) 874. What conditions are implied in direct substitutions after children of the grantor ? (1) That the substitute shall take, on the death of the child, only si sine liberis decesserit. (2) That if the child should die, leaving lawful issue, the substitution is to be entirely evacuated, even after the death of the grandchildren, and is to take effect only if the institute die childless.^ 1 Broomfield, 24th Nov. 1835, 14 ^ Bell's Prin., 1776. S., 51. {p) The real question in Broomfield, cited, was whether the enlarged provision was contingent simply on birth or on survivance of the father. The following cases may be referred to as to the import of provisions in marriage-contracts in favour of children :— Brodie's Trs., 12th Nov. 1840, 3 D., 31. Here the husband bound himself " to make payment to the cliild or children of the present marriage, and who shall be in existence at its dis- solution" (whether by the decease of husband or wife), "of the sums of money after specified, viz., if there happens to be only one child, whether male or female, the sum of £6000 sterling ; and if two or more children, the sum of £9000 sterling," payable at the first term, &c., twelve months after the death of the husband, and to " bear interest from the first of these terms immediately preceding his decease ;" the marriage was dissolved by the death of the wife, leaving two children, one of whom afterwards predeceased the father. Held that the provision vested at the dissolution of the marriage, and that on the father's death the surviving child was entitled to the whole £9000. In Grant's Tr., 1st Feb. 1866, 4 M'P., 336, a father, in his daugh- ter's marriage-contract, bound himself to lay out at the term, &c., next after his death, or as soon thereafter as circumstances would permit, the sum of £2000, upon sufficient bonds, payable to the spouses, and the survivor of them, "in conjunct liferent, for the liferent use of them, and the longest liver of them, allenarly, and to the child or children procreated of the mar- riage, whom failing, to the nearest heirs or assignees " of the wife's father himself in fee ; and it was provided that the sum should bear interest (from which the husband's ^ms mariti v/as excluded) from the date of the spouses leaving the family of the wife's father. One child was born, which prede- ceased both parents and also the wife's father. Held that, as the child pre- deceased the dissolution of the marriage, the fee of the £2000 never vested in it, and on the death of both spouses belonged to the heirs and assignees of the wife's father. Digitized by Microsoft® BONDS OF PROVISION. 413 875. A bequest of £1200 was made by a testator to his children A, B, 0, and D, and the survivors or survivor of them ; A and B predeceased, while C and D and a son of A survived the term of vesting ; How will the bequest be divided ? C and D are entitled to £450 each, and A's son to £300 only, the latter not being entitled to participate in the share which would have fallen to B, his predeceasing uncle, as " the effect of the implied condition, si sine liheris, is only to convey to the children the share of the parent, which otherwise would have lapsed, and not to convey to them any right to claim an interest, along with survivors, in other lapsed shares." — Per Lord Cowan}({) III. TESTAMENT AND DISPOSITION AND SETTLEMENT. [See Privileged Writings — Delivery of Deeds — Capacity of Parties.) 876. What is peculiar in the form of the testament as a conveyance ? The peculiarity in the form of the testament is the nomination of an executor to administer the moveable estate for the benefit of all concerned ; the deed in this form being effectual, without words of direct (m) conveyance, as a transmission of the moveable property to the executor, although it shou.ld not contain directions for the distribution of the estate. Where such directions are wanting, the executor is regarded as hares fiduciarius, or trustee, accountable to the next of kin, creditors, and others having in- terest in the succession. ^ 1 Forbes' Trs., 19th May 1830 ;(r) Walker, 20th January 1859, 21 D., ThornWU, 20th January 1841 ;(s) 286. ^ Ersk., 3, 9, 5. (r) Eeported (Lauderdale), 8 S., 771. (s) Reported, 3 D., 394. («) But if C and D had also predeceased without issue, A's son would have taken the whole, and' not merely his parent's share ; Cattauach, 2d July 1858; 20 D., 1206. It was also held there that the share falling to a child in right of the parent is payahle to the administrator at the term when it would have been payable to the parent, if alive. (u) Or de presenti. Digitized by Microsoft® 414 TESTAMENTABY DEEDS. 877. Where several testaments by the deceased are found in his repositories, which of them receive effect ? (1) Where the several deeds are inconsistent with each other, and incapable of standing together, effect will be given only to the last ; (2) where the last is but partially inconsistent with the former deeds, these will be held to be revoked only in so far as they are inconsistent ; (3) where it appears to have been the tes- tator's intention that all the deeds should receive effect, and the whole can be consistently executed, the executors are bound to do so.'(^) 878. May a delivered will be revoked in which the right of revocation is expressly renounced ? Tes; because a testament is the sententia voluntatis of the testator as at his death, and it is then only that the deed takes effect.^ 879. Where a party, by a delivered will, has gratuitously discharged a debt with absolute warrandice ; Has he power to revoke the discharge ? He has power to revoke the discharge ; because a will may be revoked after delivery, and although the power of revocation is renounced.^ 880. May a mutual settlement by a husband and wife be re- voked ? (1) A mutual settlement cannot be revoked after execution without the joint consent of both parties ; because it imports '' not merely a declaration of intention, but an obligation not to revoke ; it is a sort of contract."* (2) Without express power the 1 Grant, 27th Feb. 1849, 11 D., » Dougall's Trs., supra ; Miller, 860, aff.(a:) 28tli JunB 1852, 1 Macq., 11th July 1826, 4 S., 822 ; Trotter, App„ 163. (j/) 1st Dec. 1842, 5 D., 224. ' Dougall's Trs., M., 15949. * M-Millan, 28th Nov. 1850, 13 D., 188, per Lord FuUerton. (x) The judgment of the Court of Session in Grant was altered in House of Lords. (!/) See also Scott, 5th Feb. 1864, 2 M'P., 613. (2) See supra, note (n), p. 28. Digitized by Microsoft® TESTAMENTARY DEEDS. 415 survivor cannot revoke so as to affect third parties, even as to the property acquired hy the survivor after the predeceaser's death, where such property is conveyed by the settlement. But in this question as to the property subsequently acquired, regard will be had to the circumstances of the estate, and the intention of the parties, as appearing from the whole tenor of the deed.' (3) Where the wife's provisions in a mutual settlement are grossly unequal, she is entitled to revoke, even after the husband's death. ^ 881. What is the effect of a testament in favour of a stran- ger, if the testator have children after it is made ? The testament will be ineffectual, in virtue of the implied condition, si sine liheris decesserit. Formerly it was held that the testament was effectual if it had been preserved after the birth of children ; ^ but this circumstance was not regarded in the cases cited infra as of itself sufficient to elide the implied condition.*(5) ' Nimmo, 24th Jan. 1840, 2D., Colqulioiin, 5th June 1829, 7 S., 458. 709. " M'Neill, 8th Deo. 1829, 8 S., * M. of Montrose, M., 6398 ; Neil- 210. (a) See Nisbet, 24th Feb. 1835, son, 4th June 1822, 1 S., 458 ; Dixon, 13 S., 517. 10th June 1836, 14 S., 938 ; aff. 9th " Ersk., 3, 8, 46 ; Tule, M., 6400 ; Feb. 1841, 2 Bob. App., 1. (a) The ground of judgment in M'Neill was not so much the inequality of the provision itself as a condition annexed to it, that the wife should for- feit everything in the event of her marrying again. (6) In none of the cases liere cited were there children of the testator born after the deed had been made, and in all of them the point at issue was as to the right of children of beneiiciaries to succeed to provisions in favour of their parents, who had predeceased the testator. Thus in Dixon the ques- tion was as to the right to a provision in favour of the testator's eldest son, without mention of heirs, he, the son, having predeceased his father one day, leaving children, and they were preferred to the provision. The point referred to in this .answer does not seem to have arisen since Colquhoun (cited, note 3), and there (though the deed was set aside, the father hav- ing survived the birth of liis child only three months) the principle that it might have become effectual was distinctly recognised. Lord Pitmilly ob- serving — " If the testator had lived a competent time, the presumption would have operated against the first presumption of the conditio si sine Uteris be- ing implied." Digitized by Microsoft® 416 TESTAMENTARY DEEDS. 882. Is the executor, as such, entitled to any 2:)ortion of the executiy ? Executors were entitled, under the statute 1617, o. 14, to re- tain a third part of the executry (c) for their trouble ; but that enactment was repealed by the Intestate Moveable Succession Act, which declares that executors-nominate shall, as such, have no right to any portion of the estate.^ 883. State the essential distinction between the requisites, in point of form, of mortis causa conveyances of moveables and of heritage. Moveables may be conveyed by the appointment of an execu- tor with instructions to distribute [d) or by a simple declaration of the testator's will ; but heritage can be transmitted only by a deed containing words of direct conveyance de jiresenti, the word " dispone " being indispensable.^ 884. May heritage be burdened with legacies by a testament to the heir? (1) The heritage cannot be burdened with legacies by a tes- tament to the heir if he repudiate the testament and confine him- self to his legal rights ; " (2) but if the heir take benefit under the testament, he is not entitled to refuse effect to the legacies bur- dening the heritage ; he cannot, on the principle of approbate and reprobate, avail himself of the testament partially, but must allow it to operate as a whole.* 885. A person granted a conveyance to his heir-at-law of' his whole estate, heritable and moveable, but under burden of his debts and legacies ; the heir repudiated 1 18 Vict., 0. 23, § 8. = Govan, 28th Jan. 1812, F.C. 'Duff on Deeds, 96; Menzies * Cunningham, M., 617; Duudas, Leot., 661 (693). See note 1, p. 14th Jan. 1829, 7 S., 241; aff. 22d 266.(e) Doc. 1830, 4 W. S., 460. (c) It was only to a third part of any free residue of the dead's part, after deducting debts and legacies, that executors were entitled; Ersk., 3, 9. 26. {d) The appointment of executor is sufficient without instructions, and the executor is in that case trustee for the next of kin ; Act 1617, c. 14, and Ersk., 3, 9, 26. (<•) And note (o), p. 266. Digitized by Microsoft® TESTAMENTARY DEEDS. 417 the conveyance, taking up the heritable estate as heir-at-law, and not claiming the moveables ; Did he thereby free himself from liability for the personal debts and legacies ? (1) If the conveyance were executed in liege poustie, the heir would be liable for both the personal debts and the legacies, as " heirs must fulfil all the deeds of their ancestors under whatever title they may take the estate."^ (2) If the conveyance were executed on deathbed, the heir might set it aside, and thus free himself from liability for the legacies ; but he would still be liable, as representing his ancestor, for the personal debts, having relief, however, against the executor.^ 886. Explain the operation of the law of deathbed ? By this law, all deeds affecting heritage granted by a person, while ill of the disease of which he died, to the prejudice of his lawful heir, are ineifectual. It is an exception to the plea of deathbed, sanctioned by consuetude, and recognised by the Act 1696, c. 4, that the granter of the deed has been at kirk or mar- ket (/) between the date of the deed and his death ; and it is likewise a sufficient defence, introduced by the statute adverted to, that the granter has lived sixty days after the date of the deed, though during that time he shall not have gone either to kirk or market.^ 887. What deeds are reclucible ex capite lecti f All deeds prejudicial to the heir either directly conveying or burdening the heritage, and likewise all deeds gratuitously trans- ferring or affecting the moveables, whereby the heir may be ex- posed to claims arising from an insufficiency of the personal estate. The following descriptions of deeds are not liable to the chal- lenge : — (1) Deeds affecting the moveable estate which do not ex- pose the heir to a demand ; (2) deeds granted in fulfilment of a prior obligation incurred m lieye poustie ; because the granter, by the prior obligation, became a proper debtor to him in whose favour the deathbed deed is afterwards granted ; (3) deeds executed in virtue of a reserved power contained in a deed granted in liege lErsk., 3, 8, 51. 3 Ersk., 3, 8, 96, et seq.; Bell's 2 Ersk., 3, 8, 97. See Ans. 230. Prin., 1786, et seq. (/) Unsupported ; Ersk., 3, 8, 96. 2d Digitized by Microsoft® 418 TESTAMENTARY DEEDS. poustie, by which the heir is excluded ; because by the latter deed " the heir of the granter loses the character of heir, and so has no interest to set aside any posterior deed;"(5r) (4) deeds granted in corroboration or security of a lawful and proper debt, though the granter should have been under no prior obligation to grant it ; because such security is not prejudicial to the heir, who is bound in payment of all his ancestor's debts, independently of any pos- terior security corroborating them.^ 888. Are reasonable provisions to younger children, or provi- sions for their aliment during minority, or a wife's jointure, challengeable by the heir, the provisions be- ing granted on deathbed ? State the reasons. (1) Provisions to younger children are challengeable ex capite lecti ; because the father could not have been compelled to make such provisions by action at law. (2) Provisions for the aliment of younger children during their minority are not reducible ; be- 1 Ersk., 3, 8, 97, 98. {ff) A deed granted by a liferenter in exercise of a conferred power to dispose of the fee is not reducible ex capite lecti; Morris, 7th June 1853, 15 D., 716. A, by mortis causa deed, conveyed (1) to various disponees certain special subjects, and (2) to trustees his whole estate, " excepting always the subjects specially before disponed." Bj a codicil executed on deathbed, he revoked the special dispositions, and conveyed the subjects to other parties. Held that the revocation was effectual, and that, as these subjects did not fall under the conveyance to the trustees, A died intestate as regards them; Cameron, 2d Feb. 1864, 2 M'P., 584. A, by deed mortis causa, disponed his whole estates to his brother B, and " his heirs and assigns whomsoever," with the most absolute powers of disposal by deeds inter vivos or mortis causa ; but in the event of his dying ■without exercising those powers, and without issue, he (A) disponed the estates to other parties. B passed over the deed, and made up titles as heir- at-law, and died without issue, leaving a trust-deed executed on deathbed. Held that his heir could not challenge it so far as regarded those estates, as he was excluded by the substitution in A's deed, and the conditions on which that substitution was contingent had been purified ; M'Ewan, 27th March 1865, 3 M'P., 779. But in another branch of the same case it was held that (J, as heir of provision to B under A's deed, was entitled to reduce B's settle- ment ex capite lecti, so as to produce intestacy as regarded him, and open up C's right of succession under A's deed. Observed, ^er Lord Justice-Clerk Inglis, that B's settlement could not be considered as the exercise of a faculty, because "he was so completely the full fiar of the estate that he could have no faculty;" Pattison, 6th March 186G, 4 M'P., 555. Digitized by Microsoft® TESTAMENTARY DEEDS. 419 cause a father's obligation to maintain his minor children is not merely equitable, but may likewise be the foundation of an action ; (3) nor is a jointure to a wife reducible, if it do not exceed the legal terce, because such provision is considered as the deed of the law.' 889. Where a person in liege poustie has conveyed his estate to his heir, with a reserved power to burden, and after- wards exercises the faculty on deathbed ; May the heir reduce the deathbed deed ? (1) If he has not accepted of the disposition, the heir may re- duce the deathbed deed granted to his prejudice ; (2) but if he has accepted of the deed containing the reserved faculty, he cannot reduce ; because his acceptance of the disposition, with its condi- tions and reservations, makes him a disponee, and disponees have no title to reduce, ex capite lecti.^ 890. May a reserved power to burden "at any time during the granter's life," contained in a deed excluding the heir, executed in liege poustie, be exercised on death- bed ? The power may be exercised at any time while the grantor is of sound mind, although the words etiam in articulo mortis are not inserted in the reservation ; because the heir is excluded by the disposition, and the disponee has no title to challenge. ^(A) 891. If the party in liege poustie executed a settlement of his estate in favour of a stranger, and by a deed granted on deathbed, revoked the first settlement, and disponed the estate to a different person ; Who would be en- titled to the property ? State the reason. The heir-at-law ; the new deed being effectual as a revocation of the former, but reducible, ex capite lecti, as a conveyance preju- dicial to the heir.*(«) 1 Brsk., 3, 8, 97. ^ Bell's Prin., 1810 ; Findlay, M., 2 Ersk.. 3, 8, 98. 3188. 3 Douglas, M., 329 ; Ersk., 3, 8, 98. (A) See Miller, 8tli July 1853, 15 D., 828, as to exercise of reserved power to alter. Here a deed was altered so as to convert a tailzied into a simple fee, but leaving the destination unrecalled. Held not reducible. (i) See also Stewart, 3d Feb. 1860, 22 D., 646. 2d2 Digitized by Microsoft® 420 TESTAMENTARY DEEDS. 892. A party having executed a testamentary conveyance of his estate, in liege poustie, in favour of a stranger, is desirous of executing a new settlement of the estate in favour of a different person ; How may this be accomplished so as to exclude the heir's challenge ex capite lecti? (1) The heir's right of challenge may he excluded by inserting in the new deed of settlement a provisional revocation of the prior conveyance, declared to take effect only if the new deed shall stand. In this way the heir cannot challenge the new deed, as he has no longer an interest, being excluded by the prior convey- ance ; nor can the first disponee, as he has no title, — none but the heir or his creditors having the right to challenge ex capite lecti. (2) The challenge continues debarred if no revocation is inserted in the new deed, as it is held to be executed under the reserved powers of the prior deed, and the implied revocation is held to be provisional.^ 893. Where a party has executed a revocable disposition mor- tis causa of certain subjects. Is the conveyance held to be revoked by a subsequent general disposition and settlement of the party's whole estate ? The general disposition and settlement does not operate as a revocation of the prior special conveyance, unless from the terms of the deed it be manifest that such was the testator's intention.^ 894. How did a general disponee obtain a real right to feu- dal subjects before the Titles to Land Act came into effect, and what is the procedure introduced by that statute ? Before the Titles Act — (1) Where the ancestor's title was personal, the general dis- ponee, having right by the general conveyance to the unexecuted precept and procuratory in the ancestor's favour, made up a title 1 Ersk., 3, 8, 98; Bell's Prin., 2 "Weir, M., 11359; Drummond, 1811, 1812 ; Menzies Leot., 665 M., 11373 ; Eoyal Bank,(A) 18th (698). Nov. 1836, F.C.; 15 S., 32. (i) Reported under name of Thomson. Digitized by Microsoft® TESTAMENTARY DEEDS. 421 either by infeftment on the assigned precept, or by charter of re- signation proceeding on the assigned procuratory and infeftment thereon. (2) Where the ancestor's title was feudalised, the general dis- ponee got the heir to complete a title by service, or precept of dare cmistat and infeftment, and thereafter obtained a special dis- position from him in implement of the general conveyance, and took infeftment. (3) If the heir refused to make up a title, the general disponee led an action of constitution and adjudication in implement against him,, and, after obtaining decree, he got from the supe- rior a charter of adjudication in implement, and took infeftment thereon. Although the decree contained a precept of sasine, in- feftment on it was apparently incompetent where the heir had made up no title, as the Lands Transference Act provides that the adjudger's title might be completed by infeftment on the decree only " where the person adjudged from" is entered with the supe- rior or is in a situation to charge the superior to grant an entry by confirmation. ' (4) Where the general conveyance was of all lands belonging to the grantor (m) and contained a precept of sasine, the general disponee might obtain immediate infeftment in the lands by pro- duction to the notary of the ancestor's infeftments.^ Under the Titles Act — (1) Where the ancestor's title was personal, the general dis- ponee may obtain a real right by expeding a notarial instrument, Schedule K, setting forth the unrecorded conveyance in favour of the granter of the general disposition, and also setting forth the general disposition, and by recording the former conveyance along with the notarial instrument and a warrant of registration ; or by expeding and recording a notarial instrument. Schedule B, setting forth the unrecorded conveyance, and containing at length the 1 10 and 11 Vict., c. 48, g 19 -,{1) 2 See Ans. 627. Liddle, 17th Nov. 1855, 18 D., 61. (I) Where the subjects were burgage, the procedure was ujider 10 and 11 Vict., c. 49, § 8. (m) A general precept was applicable to a conveyance of part as well as of the whole lands ; what was required was such a description as admitted (by reference to a sasine in favour of the granter) of the identificatioo of the lands by written evidence produced to the notary. « Digitized by Microsoft® 422 TESTAMENTARY DEEDS. portions of it by which the lands are conveyed, and also setting forth the general disposition. ^(n) (2) "Where the granter of the general conveyance was feudally vested, the disponee may obtain a real right by expeding and re- cording a notarial instrument, Schedule H, setting forth the granter's title, and also the general disposition. If the holding of the general disposition is a me, or if no holding is expressed, confirmation is indispensable when notarial instrument, Schedule H, is used.^(o) IV. TRUST-DISPOSITION AND SETTLEMENT. (^) 895. Does a nomination of trustees, where there is no des- 1 21 and 22 Vict., o. 76, § 14. 2 21 and 22 Vict., u. 76, § 12. See Ans. 682, note 5. [n) See note (h), p. 364. Where the lands are held burgage, the procedure is similar. See 23 and 24 Vict., c. 143, § 10, and Schedules G and B. (o) See note (J), p. 321. In lands held burgage the corresponding procedure is in terms of 23 and 24 Vict., c. 143, I 8, and Schedule B. Questions sometimes arise as to what is conveyed by a disposition and settlement. An heir of entail in possession of an estate worth £2000 a year, who possessed also 45 acres of ground adjoining in fee-simple, executed, subsequent to the Entail Amendment Act 1848, a trust settle- ment conveying specially those 45 acres and all other lands and herit- able estate of every description " for behoof of an only daughter, and any other children that might be bom," exclusive always of any son who may succeed as heir of entail to the entailed estate. In an action at the instance of the daughter for declarator, that in respect of certain de- fects in the entail, her father had died vest in fee-simple in the entailed lands, and that they were effectually carried by his trust-deed, the Court, assuming, but not deciding, that the entail was defective, that the truster might have dealt with it as fee-simple property, and that the words of the deed were habile to convey it, held, on a construction of the whole deed, that the truster had not intended to convey the entailed estate, and therefore that it was not carried ; Leith or Hepburn, 10th Feb. 1860, 22 D., 730. " It may always be made a question whether, in the circumstances, a general disposition and deed of settlement was meant to convey a particular sub- ject;" per Lord Deas in Chisholm, 9th Dec. 1864, 3 M'P., 202. A similar case to Leith or Hepburn, supra, is at present in dependence (Thorns), of which two branches will be found reported, 27th MarcK 1865, 3 M'P., 776, and I9th Deo. 1865, 4 M'P., 252. See also CoUow's Tvs., 23d Feb. 1866, 4 M'P., 465. [p) Se* note (r), p. 423. Digitized by Microsoft® TRUST-DISPOSITION AND SETTLEMENT. 423 tination to acceptors and survivors, fall by the failure of one or more, or by tbe failure of a trustee sine quo nonf Unless the appointment expressly bears to be joint, the nomi- nation will not fall by the failure of one or more of the trustees ; on the principle that a truster prefers that any one of the trustees nominated should manage the estate rather than a judicial factor. Nor will it fall by the failure of a trustee sine quo non, unless that be the express intention of the truster.' But the concurrence of a trustee sine quo non after acceptance is indispensable to every act.^ 896. Where a certain number of trustees are appointed a quorum, Must that number accept and survive in or- der to execute the trust ? The question whether the nomination falls by the failure or non-acceptance of the specified quorum will be determined by the truster's intention as appearing from the settlement, and if from the context of the deed it is apparent the truster intended that the trust should not be executed by fewer than the specified num- ber, it will fall if that number do not survive and accept.' But the presumption is for the subsistence of the trust while any of the trustees survive and accept.^ 897. Where the deed appoints a majority of the trustees to be a quorum, and does not contain a destination to the survivors ; May acts of administration be done by less than a majority of the whole ? Where a majority of the trustees are appointed a quorum, a majority of the survivors are entitled to act, although there is no destination to survivors ; and where some of the trustees have an adverse interest, a majority of the remainder is sufficient, although less than a majority of the whole. •'(?•) ' CampbeU, M., 14703 ; Forbes, 3 Halley, 20th Feb. 1840 (2 D., M. App., "Solidum," No. 2; Find- 623). lay, 30th June 1855, 17 D.. 1014; * Cases in note 1, supra. Seton, 28th Nov. 1855, 18 D., 117; ^ Campbell, M., 14703; Shanks, Menzies Leot., 671 (704). 4th March 1830, 8 S., 639. 2 Vere, 1st June 1791 ; Bell's 8vo Cases, 554. (r) The matters in this and the two preceding answers are the subject of Digitized by Microsoft® 424 TEUST-DISPOSITION AND SETTLEMENT. 898. What is the efifect of a failure of trustees, or a failure of instructions ? (1) On a failure of trustees, the Court will appoint a judicial factor to execute the trust ;(s) (2) but in the event of a failure of instructions, the trust falls, and the trustees are bound to denude in favour of the heir.(i) 899. By trust-disposition and settlement, there was a con- veyance to three trustees, and the survivors and sur- vivor, and additional trustees were appointed by a codicil, but the words survivors and survivor were not repeated. A title was made up by the truster's heir, and a conveyance was executed by him to the trus- tees, and their heirs and assignees ; Have the survi- vors power to act ? Yes ; because the title does not control the trust, nor define provision in 24 and 25 Vict., c. 84, ■which enacts (§ 1) that " All trusts con- stitnted by virtue of any deed or local Act of Parliament under which gra- tuitous trustees are nominated, shall be held to include the following pro- visions, unless the contrary be expressed : That is to say, power to any trustee so nominated to resign the office of trustee ; power to such trustee, if there be only one, or to the trustees so nominated, or a quorum of them, to assume new trustees ; a provision that the majority of the trustees accept- ing and surviving shall be a quorum, and a provision that each such trustee shall only be liable for his own acts and intromissions, and shall not be liable for the acts and intromissions of co-trustees, and shall not be liable for omissions." The provisions of this Act apply to trusts in operation prior to its passing; Keid, 20th (reported 31st) March 1863, 1 M'P., 774; and 26 and 27 Viot., c. 115. (s) " "Where the trustees refuse to act, it may be necessary, from the structure of the deed, that they shall act not to the effect of the acceptance of the trust, but to the effect of dealing with that interest which has been formally given to them, so as, without involving themselves in the office of trustee, to make it necessary for them to execute certain formal deeds in order to restore the title to the right shape," — Per Lord Ivory in Royal In- iirmary, iTifra, note (o), p. 425. Where, from conflicting interests or otherwise, it is necessary for the pro- per administration of the trust that it should be taken out of the hands of the trustees, the Court, on application and cause shown, will remove them and appoint a judicial factor; Thomson, l]th Jan. 1865, 3 M'P,, 336. [t) Where trustees were placed in a position in which their duties as such confiicted with their personal interests, it was held by the Lord Ordi- nary that they were entitled to apply to the Court for a declarator of their powers ; Annandale, 8th Dec. 1864, 3 M'P,, 200, Digitized by Microsoft® TRUST-DISPOSITION AND SETTLEMENT. 425 or limit the powers of the trustees, but the trust overrules and governs the title. The powers of the trustees are therefore to be taken from the trust-deed, by which, in this case, the survivors have power to act.' 900. Where the trust-deed does not contain a destination to the survivors of the trustees. Does the entire trust accresce to the survivors, or does any right pass to the heir of a deceasing trustee ? State the reason. No right passes to the heir of a deceasing trustee ; because trustees do not have a separate and pro indiviso right, but each has a full title along with the others, and if one dies, the title in him becomes extinct,(M) being absorbed by the title subsisting in the others.' 901. A party having executed a trast-disposition and settle- ment in favour of certain trustees, thereafter by codi- cil recalled the nomination, and appointed new trus- tees, but without dispositive words ; How do the new trustees complete a feudal title ? By direct infeftment on the trust-deed, or by registration ; the want of dispositive words in the codicil being of no consequence, as the settlement and the codicil must be read together, and the term " trustees " in the codicil is held to mean " trust-dispo- nees.^(f) 1 Gordon's Trs., ITth July 1851, 2 Mackilligin, 23d Nov. 1855, 18 13 D., 1381. D., 83. (m) a trust-deed, however, may be so framed as to constitute the heirs of deceasing trustees, or of any one or more of them, trustees in room of their predecessors. Where this is intended, the destination should be so con- ceived as to call in persons capable of acting, such as " the nearest heir-male who shall be major, sui juris and resident within Scotland at the time." If the estate consists of heritage, it must be vested in such substituted trustees, either by conveyance by the surviving original or acting trustees, or, if there are none such, by service or writ or precept in their favour as heirs of pro- vision in trust under the deed, and their title completed habili modo. [y) Mackilligin's case (cited) occurred prior to the passing of the Titles to Land Act 1858, and the point here referred to did not arise and was not there decided, though an opinion to the effect stated was expressed by Lord Justice-Clerk Hope. In the subsequent case of the Koyal Infirmary, 28th June 1861, 23 D., 1213, which occurred after the passing of both Acts, Lord Ivory said, in reference to the case put in the answer — " No doubt there would have been the puzzle that under such a deed as that there might not Digitized by Microsoft® 426 TRUST-DISPOSITION AND SETTLEMENT. 902. Whether is the right of a beneficiary under a trust- disposition and settlement heritable or moveable ? he the means of a direct infeftment of the trustees so as to invest them in the feudal title." In this case, Mackilligin was referred to by the judges. The competency of preceding as stated in the answer has never been determined, but it is understood to have been at all events to some extent adopted in practice. It was probably intended that the Acts should have the effect supposed, as it is declared that " all codicils, deeds of nomination, decrees of declarator, and other writings bearing reference to conveyances separately granted, and naming or appointing persons to exercise or enjoy the rights or powers conferred by such conveyances, shall be deemed and taken, for the purposes of this Act, to be parts of the conveyances to which they separately bear reference ;'' Titles to Land Act 1858, § 36 ; Act 1860, § 2 ; but assum- ing this to be the meaning of the Acts, questions may arise as to the mode of carrying out their provisions. Supposing there is a separate deed of no- mination or decree of declarator, how is the joint recording of it and of the original deed to be effected ? 1. There is no provision in the Acts for record- ing separate deeds with one warrant, except in the case of unrecorded con- veyances and assignations thereof. 2. On which of the writs is the warrant of registration to be written, or is there to he a warrant on each ? In either case, as it must apply to all the parties, it will include some whose names do not appear ex facie of the deed on which it is written. If a notarial instru- ment be adopted, then (1) There is no provision for such an instrument on two deeds, except in the case of parties acquiring right to unrecorded con- veyances, and there the title by which they acquired right must be set forth, which is quite inappropriate to the case (Gammell, 13th Nov. 1849, 12 D., 19); and (2) Even as regards the additional or new trustees, it cannot properly be said that they acquired right by assignation, because the maker of a deed cannot assign it ; Act of 1858, ?§ 13 and 14 ; Act of 1860, §J 9 and 10. As it will generally not be desired to record the whole trust-deed, a notarial in- strument will be most convenient where this mode of completing the title is adopted. As has been seen, a trust-deed will receive effect thougli all the trustees predecease or decline to act (supra, Ans. 898), and it should seem that the same effect would follow though the truster were to cancel the whole nomina- tion of trustees without substituting any others to act in their stead, pro- vided the purposes of the trust are left subsisting. This, where only per- sonal estate is concerned, is clear enough, but it has been contended that, as regards heritage, the deed must, on feudal principle, fail from the want of a valid de presenti conveyance to a disponee. Such, however, seems not to be the case, the deletion of the trustees being considered to leave the deed in the same position as if they had all died or declined to act, " the substan- tial disponee" being "the disponee having the interest, the beneficiary in the deed, the party who is to be favoured -"per Lord Ivory in the Eoyal In- firmary, supra. See also note by Lord Curriehill in Mackilligin, supra; Note by Lord FuUerton in Dundas, 27th January 1837, 15 S., 427 ; Dickson's Evid., § 874, note 1. Digitized by Microsoft® TRUST-DISPOSITION AND SETTLEMENT. 427 (1) If the trust-fund is moveable, the beneficiary's share is necessarily moveable. (2) If the trust-estate is heritable, the beneficial interest will be heritable or moveable according to the truster's instructions. And, 1. If the trustees are directed to convey lands to the bene- ficiary, his right is heritable.^ 2. Where there is a power of sale, but no direction,^ or where there is an alternative direction to pay the proceeds or to divide,' the beneficiary's right will be heritable if the heritage is unconverted, and moveable if con- verted.(tt)) 3. Where there is a direction to convert the property into money, and divide the residue, the right is moveable.^ 4. Where the beneficiary's share has, with his sanction, been in- vested by the trustees on heritable security, it is heritable as to succession. ^(x) 903. What are the advantages of embodying the purposes of the trust in a deed of directions separate from the trust conveyance ? (1) The purposes of the trust may be altered in whole or in part, without disturbing the trust-conveyance. (2) The separate instructions may be in the form of a testament, which will be held to form part of the trust-disposition by reference.'' (3) The separate deed may be executed secundum legem domicilii, and al- though not probative by the law of Scotland, such deed, along with the trust-conveyance, will be an effectual settlement of heri- tage. '(j/) (4) The deed of instructions may be executed on 1 Durie, M., 4624. * Angus, Bth Dec. 1825, 4 S., 279. 2 Cathcart, 26th May 1880, 8 S., = Williamson, 15th Dec. 1849, 12 803; Speirs, 21st Nov. 1850, 13 D., D., 872. 81. « Willoch, M., 5539. 3 Bm-rel, 14th Dec. 1825, 4 S., 314. ? Ker, 24th Feb. 1829, 7 S., 454 ; (w) But trustees are not entitled to exercise the power without the bene- ficiary's consent, unless there is a reasonable necessity for their doing so. {%) It is to be understood that the fund is so invested, not only with the beneficiary's sanction, but in his own name ; if it were in the names and subject to the control of the trustees, it would not be heritable as to succes- sion. See Williamson, cited. There was some difference of opinion in that case, not as to the principle, but as to the import of the evidence of the bene- ficiary's intention to make the fund heritable. The principle is general, and applies to all similar cases of conversion of moveable property into heritable. See Davidson, M., 5597 ; Trotter, 5th Dee. 1826, 5 S., 78 ; H. of L., 3 W. and S., 407 ; Ramsay, 11th July 1833, 11 S., 967. (y) The principle here stated was applied in Somerville, &c. (Eichmond's Digitized by Microsoft® 428 TRUST-DISPOSITION AND SETTLEMENT. deathbed, provided the trust-conveyance is granted in liege poustie, and contains a provisional statement of purposes to come into eiFeot if the separate deed is challenged, the heir's right of chal- lenge being thereby excluded, as he has no interest to reduce.^ 904. Where the truster directed his trustees to pay the in- terest of the trust-funds to a party during his life, and after his death to jjurchase land for behoof of his eldest son, with instructions to accumulate the interest until a suitable investment should be found ; Is the eldest son entitled to insist for payment of the interest ? The accumulation will be limited to one year, and the eldest son will he entitled to interest after the expiration of a year from the liferenter's death. ^(z) 905. Explain the operation of the Thellusson Act in regard to accumulations ? The Thellusson Act annuls every direction, by will or other deed, to accumulate the annual proceeds of property longer than twenty-one years after the testator's death, or during the minority Cameron, ]9t]i May 1831 (9 S., 601) 1811, 1812; Menzies Lect., 665, 674 7 W. S., 106. (698, 708). 1 Ersk., 3, 8, 98 ; Bell's Prin., 2 Mitchell, 2d Nov. 1853, 16 D., 1. Trs.), 25tl> Nov. 1864, 3 M'P., 95, where it was also held that the trustees named in the Scotch trust-deed were superseded by others named in an Irish will, to whom they were bound to convey the Scotch heritage, &c. (z) The rule can hardly be held to be so absolute as is here stated. The point to be ascertained is the testator's intention, which is to be done, in so far as it can be found, by looking to the leading and general purpose of the deed, and then seeing to what extent that is modified or controlled by the particular intimation of purpose in other clauses of the deed. In Mitchell (cited) tlie direction was to invest a certain sum of money " as soon as my said trustees find it in their power,'' and a year was held sufficient; but the Lord President (M'Neill) observed — "The Lord Ordinary says, that in such an event a reasonable period must be taken, and that a reasonable period seems to be a year ; I can easily conceive a case in which it would not be a reasonable period, but in ordinary circumstances it is so ;" and Lord Ivory — " I am not prepared to gather out of the authorities referred to that there is an absolute rule applicable to such cases. The only general rule is that we are to be guided by the intention of the testator as to his object to be construed out of the words of the deed." See on this point. Stair, 19th June 1827, 2 W. and S., 614 ; M'Pherson (H. of L.), 10th June 1852, 1 Stu., 868, and Moncreiff, 25th Nov. 1857, 20 D., 94. Digitized by Microsoft® TRUST-DiaPOSITION AND SETTLEMENT. 429 of a person living at tlie testator's death. ^ The statute excepted heritable property in Scotland, but the exception is repealed by the Entail Amendment Act.^(a) 906. What is the rale as to payment by the trustees of the truster's debts ? The trustees, when not interpelled by diligence, are entitled to pay prima venienti, unless there is a manifest shortcoming of funds, in which case they are not safe to pay without a multiple- poinding.^(?>) 907. When the trastees are directed to pay the residue, under burden of an annuity ; What are the respective rights of the residuary legatee and the annuitant, the other purposes of the trust being fulfilled ? The residuary legatee is entitled to payment of the residue, and all that the annuitant can demand is a personal bond of an- nuity from the residuary legatee, without any security. ^(c) 1 39 and 40 Geo. Ill, c. 98. 3 Kankine, M., 16201 ; Bell's Prin., 2 12 and 13 Vict., c. 86, | 41. 1998. * Kerr, 12tli Feb. 1858, 20 D., 562. (a) Where a truster conveys the residue of his moveable, or of his heri- table and moveable, estates, in a mass, upon a future contingency, the sur- plus income arising in the meantime falls into residue, and goes with the principal to the person ultimately entitled, and not to the truster's heirs ab intestate ; but the Thellusson Act renders all directions for accumulation of personal property beyond the term of twenty-one years inoperative, and therefore, where there is surplus income for a period beyond that term, there will be, in regard to the surplus income during the years over twenty-one, a resulting trust for the benefit of the next of kin ; Pursell, H. of L., 24th March (reported 13th June) 1865, 3 M'P., 59 ; varying, 0. of S., 25th Nov. 1856, 19D.,.71. Where a testator directed his trustees to pay his moveable estate to cer- tain persons on the occurrence of any one of three contingent events, and after the lapse of thirty-three years from his death it became certain that none of these events could happen ; held that the testator died intestate, and that those entitled to the estate were the representatives of his heirs in mobilibus ab intestate at the time of his death, and not those who would have > been his heirs when it became certain that none of the contingencies could happen; Lord, 15th July 1865, 3 M'P., 1083. (b) Eankine, cited, was a case of trust for creditors. Testamentary trustees, like executors, as they also generally are, cannot pay with safety till after the lapse of six months. (c) But if the party is " insolvent or mrgens ad inopiam, then the law pro- Digitized by Microsoft® 430 TRUST-DISPOSITION AND SETTLEMENT. 908. When the residuary legatee is to be burdened with an annuity; What relative provisions ought the trust- deed to contain ? The annuity ought to be declared a real burden on part of the heritage ; or there should be a direction to the trustees to purchase for the annuitant an annuity from a life assurance company. 909. May the trustees make up titles or sell without express power? State the reasons. (1) The trustees may make up titles without express power; because that is an act of ordinary administration, and necessary for carrying out the purposes of the trust. ^ (2) They cannot sell heritage without power, either express or necessarily implied ; because sale is an extraordinary act, and the heir cannot be excluded by inference. ^(c2) Without express authority they may sell (1) where there is a running deficiency of funds which would consume the trust-property;^ or (2) where the primary purpose of the trust is the payment of the truster's debts, and that purpose cannot be implemented without a sale.*(e) It is thought that the trustees may sell moveables without express authority. 910. In what oases is legacy-duty exigible from the heritage conveyed by the trust-deed ? ^ Menzies Lect., 619 (714). 3 Henderson, 22d June 1841, 3 2 Eobertson (7th March 1832, 10 D., 1049. S., 488), 1st Sept. 1835, 2 Sh. and * Graham, 21st Dec. 1850, 13 D., Macl. App., 333. 420. Tides machinery for obtaining security;" per Lord Curriehill in Kerr (cited). In that case the bonds were offered, and therefore the question of right to demand them did not arise. (d) It is not very obvious what connection there is between the exclusion of the heir and the question of the power of the trustees to sell, which may arise where the exclusion of the heir is absolute and undoubted. In Eobert- son, cited, the question was, whether a particular subject was conveyed to the trustees to be dealt with in terms of the provisions of the deed, or fell as intestate succession to the heir-at-law, who was excluded by the deed. (e) But it may be necessary in some cases to get the authority of the Court. See Lord Moncreiff's note to his interlocutor in Campbell's Trs., 6th Dec. 1838, 1 D., 153. See as to purchases of the trust-estate by trustees, sv.pra, Ans. 132, note (u), p. 65. Digitized by Microsoft® TEUST-DI«POSITION AND SETTLEIIENT. 431 (1) Legacy-duty is exigible, ls< where the trustees are directed to sell and realise ;(/) 2d, where the trustees have power of sale, and absolute discretion, and they exercise the power -^ 3c?, where a sale is necessarily contemplated by the testator, although no express power is given. ^ (2) Legacy-duty is not exigible where there is no direction but a power merely, unless a sale be necessary for the purposes of the trust.^ 9il. May the trustees, under a direction to purchase lands, purchase superiorities or feu-duties ? (1) It has been held that the trustees are entitled to purchase superiorities,^(gr) but this is doubtful. (2) They are not entitled to purchase feu-duties.''(7!.) 912. Are tnistees liable for factors appointed by them where the trust-deed does not expressly authorise the appoint- ment of factors ? They do not appear to be liable if the factor was habit and repute responsible at the time of his appointment, and especially if the business of the trust is not manageable without a factor, as such appointment is an act of ordinary administration." But it 1 Adv.-General, 22clFeb. 1856, 18 * Sharpe, 11th Feb. 1823, 2 S., D., 636. 203. 2 Adv.-General, 23d Dec. 1850, 1 8 5 Govs, of Canvin's Hospital, 29th D., 436. Jan. 1842, 4 D., 556. 3 Blair, 16th Nov. 1849, 12 D., 97. « Bell's Prin., 2000 ; Thomson, 16th Feb. 1838, 16 S., 660. (/) Terms of settlements held not to import a direction to realise ; Adv.- General, 1st March 1852, 1 Stu., 553 ; Buchanan, H. of L., 15th May 1862, 24 D., 5 (altering, C. of S., 13th March 1860, 22 D., 979), where the words "pay over" were held equivalent to "convey;"' and of one held to import such direction, Weir, 22d June 1865, 3 M'P., 1006. Where legacy-duty is not exigible from heritage, succession duty is now payable ; 16 and 17 Vict., C.51. [g) The object in the case cited (Sharpe) was to make up a freehold qualification under the old system of Parliamentary representation for bene- fit of heirs of entail. (A) The case (Gauvin's Hospital, cited) arose under an Act of Parlia- ment, but the principle had been applied in PoUexfen, 14th July 1841, 8 D. 1215, where "superior duties" in Orkney had been purchased by trustees under a deed. Digitized by Microsoft® 432 TRUST-DISPOSITION AND SETTLEMENT. has been held, where the trustees had no power to employ a factor and had a bequest for their trouble, that they were personally liable, notwithstanding the reputed responsibility of the factor when ap- pointed.^ 913. A trust-deed authorised the trustees to assume additional trustees to act along with them, "in place of those who may die or decline to act," and two of the trustees having died, an assumption of three new trustees was made ; Was the appointment valid to any extent ? State the reason. Not only is the assumption of three trustees ultra vires, but the nomination is entirely void ; the principle being, that faculties are of strict construction, and must be precisely executed ; and that in this case, the transgression of the power being inherent in the whole act itself, the Court will not interfere to make a new act in exercise of the power. ^(i) 914. In what cases are trustees personally liable, although protected by the usual clause of immunity from liability for omissions, intromissions, &c. They will be liable (1) for the misapplication by any of their number of money for which they have granted a receipt or dis- charge f (2) for positive transgression of the testator's instruc- tions ;* (3) for erroneous payments ;' (4) for expenses of mala fide litigation;* (5) for gross negligence or fraud.''(/i;) 1 Sym, 13th May 1830, 8 S., 741. 6 Maefarlane, 12tli May 1835, 13 2 Ferrie, 31st May 1834, 12 S., 672. S., 725; Macpherson, 19th Jan. 1850, 3 Blain, 28th Jan. 1836, 14 S., 361. 12 D., 486. * Morrison, 9th Feb. 1827, 5 S., f Robertson, 4th Dec. 1823. 2 S., 322 ; Bon Accord Marine Ins. Co., 553 ; Kay, 6th March 1850, 12 D., 11th Dec. 1850, 13 D., 295. 845. 7 Menzies Leot., 686 (722). (i) See as to general power of trustees to assume others, note (r), p. 423. Probably, where the deed contains special powers of assumption, they will supersede and control the general power in the Act, as bringing into opera- tion the proviso "unless the contrary be expressed." (k) See provision of 24 and 25 Vict., o. 84, as to liability for omissions, note (r), p. 423 ; and supra, Ans. 249, and note (i), as to liability of tnistees in other respects. Digitized by Microsoft® TRUST-DISPOSITION AND SETTLEMENT. 433 915. Does a factor loco tutoris, or a judicial factor on a lapsed trust, require to make up titles in his person before granting a conveyance of the heritage ? (1) A factor loco tutoris does not require to make up titles where a title has been completed in the person of the ward ; be- cause he comes as guardian in place of the ward, and exercises his will or consent ;' (Z) (2) but a judicial factor on a trust-estate must make up titles, because the title is an abeyance.^ 916. May a trustee resign after acceptance ? A trustee cannot resign without express power in the deed ;(m) but where strong reasons are shewn, as absence or delicate health, accompanied by the concurrence of the beneficiaries, a trustee may be liberated from his office by the Court. ^ 917. How does a judicial factor on a trust-estate obtain a real right to the lands held in feu ? (1) Where the truster's title was an unrecorded conveyance, and the trustees have not completed a title, — the judicial factor may require a feudal right under the Titles Act, by notarial in- strument, Schedule B (?i) or Schedule K, the Act and warrant of special powers being deduced in the instrument.(o) (2) Where the truster had been feudally vested, and the trus- tees have not made up titles, — by recording in the Eegister of Sasines the act and warrant of special powers, the lands being therein specified, and by obtaining a writ of confirmation from the superior.*(p) 1 Scott, 21st Fet. 1856, 18 D., 624. » Hill, 9t.h Dec. 1846, 9 D., 239 ; = MeiHe, 4th June. 1856, 18 D., Dick, 9th June 1855, 17 D., 835. 988. « 21 and 22 Vict., c. 76, § 21. (Z) "What is here stated is correct, but it is not to he understood that if a title has not heen completed in the person of the ward one is to he made up in the person of the factor. The title must be made up in the person of the ward. See as to powers of factors loco tutoris, supra, Ans. 75, et seq., and notes, (m) Trustees may now resign; 24 and 25 Vict., c. 84. See note (r), p. 423. [n) Schedule B can he used only where it is not desired to record the whole of the conveyance ; Act of 1858, §§ 2 and 14, and Act of 1860, §§ 4 and 10. Co) The trust-deed also must be deduced. {p) The course here proposed would be appropriate in the case of a 2e Digitized by Microsoft® 434 TEUST-DISPOSITION AND SETTLEMENT. (3) Where the trustees have completed a title, and are still living,—!, by conveyance from them, and infeftment or regis- tration ; or 2, by adjudication against the trustees and infeftment on decree ; or registration of decree and confirmation ; or by charter of adjudication and infeftment or registration. Where a feudal title has been made up in the persons of the trustees, it is an incompetent method of completing the factor's title to record the act and warrant, as that writ is declared to have the effect of a disposition from the person whose estate is under judicial man- agement, while such a conveyance would, in this case, be inept, the truster being divested by the title made up in the persons of the trustees. (?•) (4) Where the trustees have completed a title and are all dead, — by declaratory adjudication against the heir of the last survivor, and by charter of adjudication from the superior, and infeftment or registration. It is thought that a feudal title can- not, in this case, be obtained by infeftment on, or registration of the decree, the provisions of the 19th section of the Lands Trans- ference Act,^ and of the 27th section of the Titles Act,^ appearing to have reference only to adjudications on account of the ancestor or heir's debt or obligation, and not to adjudications of a declara- tory nature. (r) ^ 10 and 11 Vict., c. 48, § 19. ^ 21 and 22 Vict., c. 76, ? 27. factor on an intestate succession, but not of one on a trust-estate in the cir- cumstances stated, as it leaves out of view the trust-deed. The practice (where the deed contained a special conveyance) was to expede and record a notarial instrument on it and the act and warrant, but the competency of this might be questioned, as the Act of 1858, § 21, declared the act and warrant to be equivalent to a disposition " from the party whose estate is under judicial management," while what was wanted was a conveyance from the trustees, so as to take up the trust-deed. All difiSeulty has now been removed by the Titles to Land Act 1860, which provides (? 38) that in the case supposed the act and warrant shall be equivalent to a disposition " by such trustee or former factor, whether in life or deceased, for the purposes of such trust." if) In both the cases (3 and 4) here supposed it is now competent to re- cord the act and warrant, and this is the best and simplest course. It may also be followed where one factor succeeds to another (see note (^), p. 433). Digitized by Microsoft® LEGACIES. 435 V. LEaACIES, 918. Are verbal legacies effectual? (1) Verbal legacies are valid to the extent of £100 Scots, as obligations to that amount are proveable by witnesses.' (s) (2) Where the executor has right to the residue, and has promised to the defunct to pay certain legacies, it has been held that these are proveable by his oath, although exceeding £100 Scots.2(f) (3) But beyond that amount such legacies cannot he sustained if the executor has no personal right to the residue.' 919. What is the effect of (1) a legacy bequeathed for a reason erroneous in point of fact ; and (2) of error in the name of the legatee ? (1) A legacy bequeathed for a reason erroneous in point of fact, is nevertheless effectual ; because a statement of the cause or reason for granting conveyances -mortis causa is not essential to their validity.* But error in the narrative will vitiate the legacy if it can be proved that, had the testator been correctly informed, he would not have left it.''(M) (2) Error in the name of the legatee will not vitiate the legacy, " dummodo constet de persona, provided his description distinguishes him sufiioiently from all others."^ 1 Ersk., 3, 9, 7. * Ersk., 3, 9, 8. " Hannah's Legatees, M., 8837. '" Grant, 9th July 1846, 8 D., » Forsyth's Trs., 18th Jan. 1854, 1077. (m) 16 D., 343. » Ersk., 8, 9, 8 ; Keiller, 15th (s) A nuncupative legacy sustained to the extent of £8, 6s. 8d, though nominally a legacy to a larger amount ; Kelly, 8th March 1861, 23 D., 708. (t) This is on the principle that the executor is a, trustee, and his oath is admissible to prove the condition of the trust. Where, without making any written testament, a person declares his will to his next of kin, such de- claration, though admitted, imports no obligation on the next of kin, unles.s he had consented to it ; Smiths, M., 6594. (u) In Grant (cited) the question was not as to a bequest, but as to a re- vocation of one, as was also the prior case of Speirs, 18th Dec. 1829, 8 S., 268, where the authorities will be found collected, and where Lord Newton stated that this exception to the general rule, " that a false cause does not vitiate a legacy," operates " only in the case where it appears certain that, had the testator known the truth, he would not {lave left the legacy." 2 E 2 Digitized by Microsoft® 43C LEGACIES. 920. What is the effect of legatum rei aliencB f (1) If the testator knew that the subject bequeathed was not his own, the legacy is valid to the effect of obliging his executor to purchase it for the legatee, or to pay him its value. (2) But if the testator erroneously believed it to be his own, the legacy is void, the presumption being that he would not have burdened his legal representative if he had known that the subject bequeathed was not his property.' 921. What is the effect of a legacy of an heritable subject? (1) A legacy of an heritable subject is regarded as legatum rei alienxB scienter legatee, and will be effectual against the execu- tor or residuary legatee, on the principle of approbate and repro- bate. ^(a;) (2) But where the testator's heir-at-law is appointed executor, a legacy will not burden the heritage descending to him as heir, if he do not take benefit under the testament, or if the deed give him no benefit.^ (3) Where the testator erroneously believed the subject bequeathed to be moveable, the executor is not obliged to make good the legacy, as he is not bound in warrandice.* 922. What is the legatum liberationis, and what is its effect? The legatum liherationis is a legacy of all that the legatee may be due to the testator at his death. It effectually discharges all proper debts due by the legatee in his own right to the deceased, but it does not free him from accounting for funds received ou the testator's account, or otherwise than by loan," 923. What is a universal legacy ; and would a bequest of a person's " whole moveable goods, gear, and effects " be a legacy of that description ? A universal legacy is a bequest of the whole moveable pro- Dec 1824, 3 S., 396, and 16tli June ' Dundas, 14th Jan. 1829, 7 S., 1826, 4 S., 724; Dent, 6 Mad., 350, 241 ; aff. 22d Deo. 1880, 4 W. and Ch. Eep. ; Doe, 4 Barn, and Aid., S., 460. 67, K.B. " Ersk., 3, 9, 10. ' Ersi., 3, 9, 10 ; Bell's Prin., * Erst., ib. 1884. ' Graham, M., 8108. (x) The same rule holds in the case of legacies payable out of proceeds of heritable subjects ; Cattos, M., 8076. Digitized by Microsoft® LEGACIES. 437 perty of the deceased, excepting heirship-moveables. A bequest of a person's "whole goods, gear, and effects," is not sufficient to constitute a universal legacy, as the words used are of restricted application, applying only to corpora mohilia, and not including nomina dehitorum.^ 924. A party conveyed by settlement the universitas of his estates, heritable and moveable, for division among A, B, and C, declaring that if any one of them impugned the deed, he should forfeit his share. A, the testator's heir-at-law, reduced the settlement and forfeited his third ; Did A's third accresce to B and C ? Yes ; it being held that the forfeiture was intended by the testator for the benefit of the remaining legatees, and not for the benefit of the next of kin who had no interest under the settle- ment. ^(j/) 1 Ersk., 3, 9, 11 ; Earl of Fife, = Nisbef s Trs., 6th Dec. 1851, 14 M., 2325. D., 145. (y) It is hardly possible to suppose such a case as this occurring, because if A reduced the settlement he would necessarily carry off part of the estates, after which his entire share of the succession under the deed could not re- main to accresce to any one. Accordingly, it will be seen, on referring to the case of Nisbet's Trs., here cited, that the circumstances were not quite the same as those put in this question. The heir who challenged had no interest under the deed, which was in favour inter alios of his children, and contained a declaration that if he should impugn it he should, " not only for himself, but also for his children, ipso facto forfeit all interest" under it. The effect of the challenge was to carry off more than had been intended for his children, and leave less than had been intended for the other bene- ficiaries, and this was stated as one of the grounds of his opinion by Lord FuUerton, who observed that the repudiation of a settlement " will not con- fer on any party a benefit not contemplated by the settlement, at the expense of the parties whose interests have been diminished by the challenge of the settlement occasioning the forfeiture." Had the effect been to leave more than two-thirds of the estate (as might be the case if the heir chose to take the heritage, though less than what was intended for his children), the re- sult of the case (Nisbet) might have been different. It is dififioult to con- ceive the heir, where himself a beneficiary, challenging in such circum- stances as have now been supposed ; but if he did challenge, the surplus might not, in the absence of any direction to that effect, go to the other beneficiaries, but might become intestate succession, leaving to them only the shares appropriated to them by the testator. Digitized by Microsoft® 438 LEGACIES. 925. What is a general legacy ; and what is the nature of the right which it confers ? A general legacy is that by which a certain sum of money is bequeathed without mentioning any particular fund out of which jt is to be paid. Such a legacy gives no jus in re, but only a claim or right of action against the executor, who is liable for the sum if the free executry in his hands be sufficient for satisfying it.i 926. What is a special legacy, and what is the nature of the right which it confers ? A special legacy is a bequest of a particular subject, fund, or debt, distinguished by special description from the rest of the tes- tator's moveable estate. Being of the nature of a conveyance, a special legacy gives the legatee a complete right to the subject on the death of the testator, so that action is competent at his in- stance for its recovery.^ 927. A testator left the following legacies : — To A, £500, contained in Z's bond, and to B and C, £250 each; and his free executry, after payment of debts, amounted only to £900 ; How will the executry be divided among the legatees ? A's legacy, being special, is not affected by the inadequacy of the fund ; and he therefore takes the £600 bond without abate- ment. But the legacies of B and C, being general, suiFer a rate- able abatement ; and these legatees therefore receive only £200 each.' 928. Must a special legatee call the executor, in an action for recovery of the subject bequeathed, when it is in the hands of a third party ? State the reason. Yes ; because the creditors of the testator are preferable to special legatees, and the executor must be called in order that it may appear whether there is a sufficiency of funds, exclusive of the special legacy, for payment of the testator's debts.* 1 Ersk., 3, 9, 11. « Ersk., 3, 9, 11 ; Bell's Prin., 1876, * Ersk., ib. 1877. * Ersk., 8, 9, 11 ; Forrester, M., 2194. Digitized by Microsoft® LEGACIES. 439 929. Would a legacy of a personal bond be extinguished if the debtor voluntarily paid it up during the testator's life ; or if the testator executed a posterior general disposition and settlement of his whole property ? (1) The legacy would be held to be annulled or adeemed if the bond were voluntarily paid up during the testator's life."- (2) A general disposition and settlement does not operate as a revoca- tion or extinction of a special legacy of prior date, the settlement being held to be made under burden of the legacy. ^(«) 930. Where the testator has sold a house, which he had pre- viously disponed by his settlement. Is the disponee entitled to the price as a surrogatum ? No ; because a bequest is held to be adeemed or revoked if the subject has been conveyed away before the testator's death." 931. A party who had made a special legacy of a moveable bond afterwards took heritable security for the debt-j Was the legacy thereby revoked ? It has been held that, by the testator taking the supervening security, the legacy was revoked ;* (a) but it is to be observed, as is remarked by Mr Duif, " that as the testator must be presumed to be 'Weir, M., 11359; Drummond, 'Chalmers, 19th Nov. 1861, 14 M., 11373. D., 57. ' Thomson, l'8th Nov. 1836, 15 * Paul, 5th July 1821, 1 g., 100 S., 32. (104). (z) This is hardly a correct statement of the law. The circumstances in the case of Thomson were strongly indicative of the testator's intention not to revoke, but even there the judges expressed diiEculty in coming to the decision which was given. The rule can scarcely be absolutely stated. In the words used by Lord President Hope in the case of Thomson — " Every- thing depends on the circumstances and on the intention of the parties, so that there is scarcely any one of this class of cases which can be quoted as a precedent to another." See observations per Lord Curriehill in CoUow's Tra., 23d Feb. 1866, 4 M'P., 465. (a) The rule here stated, and adopted in Paul (cited), is laid down by Erskine (3, 9, 10). The effect might be prevented by a declaration that, though heritable security should be taken for the debt, its amount shall con- stitute a, claim against the executry, but this would convert the special legacy into a general one. The case of Tullochs (quoted, note 1, p. 440) does not seem to bear on this point. Digitized by Microsoft® 440 LEGACIES. aware of the change, he is, by preserving his settlement unaltered, in effect bequeathing a special subject, knowing it to be heritable."' 932. Where a legacy has been made to A and B, or to A and B jointly, or jointly and severally, or to A and B equally ; What is the effect if one of the legatees predecease the testator ? (1) In a legacy to A and B, or to A and B jointly, or jointly and severally, the survivor takes the whole legacy. (2) In a legacy to A and B equally, the survivor has only his own share, the jus accrescendi being excluded.^ 933. In legacies to A in liferent and to B in fee, and to A in liferent and, after his death, " the legacy to be divided equally between B and C, or the survivor of them;" Have B in the one case, and B or G in the other, the power of testing on the legacies respectively after the death of the granter, but during the life of the liferenter? (1) In a legacy to A in liferent and B in fee, the latter may validly assign or bequeath the fee during the liferenter's life, as it vested in B by his surviving the testator.^(c) (2) But where the fee is to be divided after the liferenter's death " between B and C, or the survivor of them," neither of them has power to ' Duflf on Deeds, 101 ; TuUoclis, 8101 ; Torrie, 31st May 1832, 10 S., 2Bd Nov. 1838, 1 D., 94, 597. 2 Bell's Prin., 1882 ; Rose, M., ' TurnbuU, M., 8099 ;(6) Forbes, 26th Jan. 1838, 16 S., 374. (S) A legacy to a parent in liferent and children in fee, -witliout the in- tervention of a trust, vests fee in parent; Williamson, 28th June 1828, 6 S., 1035, overruling, on this point, TurnhuU, svpra, which will he found more fully reported, M., 4248 ; Ferguson's Trs„ 13th July 1860, 22 D., 1442. (c) This is the general rule in the case put ; hut in Duncan, &c. (Groom's Trs.), 30th Nov. 1859, 22 D., 45, it was held that under the special terms of the deed, though the legacy had vested, the party could neither test on nor assign it. Since then, however, the case of Donaldson's Trs. has been decided in the House of Lords, 14th Feb. 1862, 24 D., 1, and the priu- ciple there adopted might lead to a different view as to the period of vesting in such a case as that of Duncan, &c. Digitized by Microsoft® LEGACIES. 441 test or assign (d) before the end of the liferent, as the terms of (d) In reference to tlie po-wer to assign or test, a distinction must be ob- served. If the legatee assigning or testing die before vesting takes place, tbe assignation or settlement will be ineffectual (Newton, cited infra, note 1, p. 442 ; Mitchell, ] 1th. March 1865, 3 M'P., 721) ; but if he survives the vesting, it will be effectual ; Fyfe's Trs., 20th March 1862, 24 D., 925. It was there observed by Lord Kinloch, in a note to his judgment — " It is not necessary to assignability that a right should have vested at the date of the assignment. A right in spe may be validly assigned." There may some- times be diiBoulty, however, in completing the right by intimation, so as to secure a preference in competition. In Groom's Trs. [supra, note (c), p. 440) it was held that a legatee whose share of the trust-estate had vested, but had not become payable, had no power to test on the share. In a subsequent case, where a testator directed his trustees to pay or convey the residue of the trust- estate, after the death of the last liver of himself and his wife (who had under the deed a power of testing on a portion of the estate), to and among three grand-nephews and three grand-nieces therein named " equally share and share alike, and to their respective heirs or assignees, declaring that if any of the residuary legatees shall die without leaving lawful issue, before his or her share vesta in the party or parties so deceasing, the same shall belong to and be divided equally or share and share alike among the survivors of my said grand- nephews and grand-nieces equally," and all the residuary legatees survived the testator, but two of them predeceased his wife ; it was held by a majority of the whole Court that the shares of the two deceasing residuary legatees had vested a morte testatoris, and were carried by their respective settle- ments ; Donaldson's Trs., 20th July 1860, 22 D., 1527. On appeal, how- ever, the judgment was altered in the House of Lords, and it was held that the period of vesting was coincident with the period of payment, and there- fore that no right had vested in the predeceasing residuary legatees (re- ported under Kichardson) ; H. of L., 14th Feb. 1862, 24 D., 1. It was here observed by Lord Chancellor Westbury that " it was a settled rule of con- struction, and had been so earlier in Scotland than in England, that words of survivorship in a mortis causa settlement should be referred to the period appointed for the payment or distribution of the subject-matter of the gift. If a testator gave a life estate in a sum of money, or in the residue of his estate, and at the expiration of that life estate directed the money to be paid, or the residue divided, among a number of persons, and then referred to the possibility of one or more of those persons dying, without specifying the time, and directed, in that event, the payment or distribution to be made among the survivors, the survivors were to be ascertained by reference to the period of payment or distribution, viz., the expiry of the life estate." See to the same effect, Mitchell, supra, and Laing, 20th July 1865, 3 M'P., 1143. These cases may be contrasted with Hunter's Trs., 11th Feb. 1865, 3 M'P., 514, where, under a conveyance to trustees for behoof of " A in liferent and Digitized by Microsoft® 442 LEGACIES. the bequest are such as to confer no vested right .until the life- renter's death. "■ 934. Where a legacy was made to A, payable at the death of the longest liver of the testator and his wife ; "Was it carried by A's testament, he having survived the tes- tator, but predeceased his wife ? Yes ; because such a legacy vests, if the legatee survive one of the spouses.^(/) 935. Does the testament of a legatee cany a legacy bequeathed to him, and his heirs, executors, and assignees, he having predeceased the testator ? No ; because the legacy had not vested in the legatee, the term " executors," importing executors by law merely, and not execu- tors by express appointment ; and the term " assignees" meaning only that the legatee might assign the legacy when it became vested in his person. It transmits to his next of kin in their own right, as conditional institutes.^ 936. Where a bond of provision to a child, or a legacy, is conceived in ' favour of the grantee and his heirs ; What will be the effect if the grantee predecease the granter ? 1 Newton, 27th Jan. 1849, 11 D., ^ Graham, M. App., " Legacy," 452 ; Robertson, 28th May 1858, 20 No. 3 ; Henry, 19th Feb. 1824, 2 D., 989. S., 725 ; Lawsons, 24th Jan. 1826, ^ Wallace, 28th Jan. 1807, M. 4 S., 384, 2 "W. S., 625. App., " Clause," No. 6 ; Stirling, 12th Nov. 1851, 14 D., 20. her children in fee, to be kept in trust by them till they in their discretion shall see proper to settle it in the most safe and secure manner on her and her children," it was held that there being no survivorship clause, and no term of payment involving dies incerius, the provision vested a morte testa- toris in the then existing children, and in each child subsequently born at its birth. (/) The reason here given would not always hold. Had A survived the wife, but predeceased the testator, the legacy would have lapsed. Where a legacy was left by two persons in a joint settlement, and ono predeceased, and the other survived tlie legatee ; lield that the legacy did not lapse; Nicolson, 16th Dec. 1806, F.C., M., "Legacy," App., 2. See Wilsone's Trs., 13th Dec. 1861, 24 D., 163. Digitized by Microsoft® LEGACIES. 443 (1) A bond of provision to a child, though conceived to his heirs, lapses by the child's predeceasing his father, the substitution of heirs being conditional upon the vesting of the pro vision. ( Acta as in note 1, p. 451 ; Duff's Entails, 124, 131. {w) This view, though supported by the authority of Mr Duff, rather seems to he erroneous. (1) The 10 and 11 Vict., o. 48, relates to " the transference of lands," while an entail, besides being a deed of transf^ence, is also in one sense a deed of constitution. (2) The provision (§ 4) refers to lands "held under a deed of entail," which words are repeated in the Titles Acts 1858, § 17, and 1860, § 11, and seem to assume that the title has been already completed. (3) The deeds specified (and which in order all precede " instruments of sasine ") are " dispositions and conveyances of such lands," &c., being proper deeds of transmission, whilo the deed of entail is not mentioned, though, had it been intended to be included, it probably would have been specified, and first in order. (4) The term "complete," coming as it does after the words " transmit and renew," is probably con- trolled by them, and to be read as applicable, not to the original, but to a subsequent title ; and (5) The ipsissima verba of t 4 are repeated in ? 6 in reference to real burdens, where they are necessarily limited to cases of transference. Digitized by Microsoft® 454 ENTAILS. cording the entail in the Eegister of Tailzies, subsequent regis- tration being no bar to their diligence.' 954. A executed a strict entail in favour of himself and the heirs of his body, whom failing, a series of substi- tutes ; and the entail was recorded in the Eegister of Tailzies, but was not feudalised. B, the eldest son of A, neglecting the entail, made up a fee-simple title, and was infeft ; Can the estate be adjudged for B's debts ? Yes ; the rule being, that if the entail has not been feudal- ised, although recorded in the Eegister of Tailzies, it is not effec- tual against the creditors of the heir of investiture who has made up a fee-simple title.^ 955. A executed a strict entail in favour of himself, whom failing, B and a series of substitutes ; and the entail was recorded in the Eegister of Tailzies, but was not feudalised ; Can the creditors of B, who possesses on apparency, attach the estate ? (1) If B is heir of the last investiture, his creditors may charge him to enter heir to his predecessor and then adjudge the estate. '(a;) (2) But if B has no title independently of the entail, his creditors cannot attach the estate while the entail remains personal ; on the principle that the personal right is qualiiied by its conditions.* > Smollet's Crs., 14th May 1807, » Douglas v. Stewart, M., 15G16 ; M. App., "Tailzies," No. 12; Rose, 3 Ross L. C, 174. mil June 1828, 6 S., 945; aff. 30tli * Baillie v. Denham, 6tli June Aug. 1831, 5 W. S. 1733, 3 Ross L. C, 186. ' Douglas, 21st Feb. 1765, 3 Ross L. C, 169. (ar) It is, under the Act 1685, c. 22, essential to the validity of an en- tail that it be feudalised, but it is not necessary that the original deed of entail be itself the basis of the feudal investiture, or itself enter the feudal progress; E. of Fife, 2d March 1861, 23 D., 657; 20th March 1862, 24 D., 936 ; aff. 27th March 1863, 1 M'P., 19. Here the entail was recorded in the Register of Tailzies, but not feudalised. The heirs-portioners made up a title in fee-simple, and executed a deed in terms of the entail in favour of the eldest, who was the person entitled to succeed under it. Held effectual. Digitized by Microsoft® ENTAILS. 455 956. Is an entail made by an heir possessing on apparency binding on his heir, if the former had been three years in possession ? (1) If the entail is onerous and the heir has passed by the entailer, he is bound, under the Act 1695, c. 24, to make up titles and grant a new and valid entail. (2) But if the entail is gratui- tous, the heir is not so bound, as the statute does not apply to gratuitous deeds, its object being the protection of creditors.^ 957. Where an heir of entail, being heir of the last investi- ture under an entail recorded in the Eegister of Tail- zies, has possessed on apparency for three years with- out completing a title under the entail; May the estate be attached for his debts after his death ? No ; the next heir may complete a title under the entail, without incurring liability, under the Act 1695, c. 24; because the debts which under the statute are effectual against the next heir, are such only as could have been chargeable on the estate, if they had been contracted by himself.^ 958. May the maker of an entail include himself within the prohibitions ? The maker cannot withdraw his estate from the diligence of his creditors by including himself within the prohibitions ; unless the entail is onerous or mutual.^ And even where the entail is onerous, the estate is not protected from debts due by the maker at the date of the entail, nor from debts subsequently contracted, but made real by infeftment or adjudication before the entail has been feudalised.* 959. What is the effect of an entail in which females are called, but heirs-portioners are not excluded ? (1) The devolution of the estate to heirs-portioners extin- 1 M. of Clydesdale, M., 1274 ; ' Ersk., 3, 8, 24, Ivory's Notes ; Sandford's Entails, 96. Bell's Prin., 1747. "Dickson, 24tli Feb. 1801, M. " Agnew, 31st July 1822, 1 S. App., " Tailzie," No. 7.(y) App., 320. (y) See also Graham, M., 15439. Digitized by Microsoft® 456 ENTAILS. guishes the entail; the transmission of the estate in a divided form being inconsistent with the nature and purpose of entails.^ (2) But although the entail is liable to be defeated as soon as the succession should open to heirs-portioners, it is a good entail until that contingency happens, and is not in the meantime defeasible at the suit of the heir in possession.^(2) 960. Two sisters served themselves heirs of provision under the destination of an entail (which did not exclude heirs-portioners) to the heir of entail who had pos- sessed the estate immediately before them ; Were they liable for the preceding heir's debts ? State the reason. No ; because although the entail may practically terminate when the succession opens to heirs-portioners, the fetters are not dissolved before they succeed, and consequently the preceding heir had no power to burden the fee with debts. Heirs-portioners are held to be in the position, not of heirs whomsoever, but of last substitutes.^ 961. Are the fetters binding on the heirs whomsoever? (1) In the general case, a tailzied fee becomes simple when it terminates on heirs whomsoever of the grantor or last substi- tHte.^a) 1 Hunter, llth Dec. 1834, 13 S., = Farquliar, 3d Feb. 1842, 4 D., 185. 600. 2 Mure, 16th Feb. 1837, 15 S., * Evsk., 3, 8, 32. 581 : Duff's Entails, 37. (z) The same rule was applied where the destination terminated on " my own nearest of kindred ;" and it was held, on the assumption that this would or might call more than one person to the succession, that the immediately prior substitute, being the heir in possession, had not power to defeat the entail; Collow's Trs., 23d Feb. 1866, 4 M'P., 465. See as to this case, infra, note (a). (a) So where an heir of entail in possession was sequestrated under the Bankrupt Act at a time when, in the event of his death without issue (which happened) , the succession would open to the heirs and assignees whatsoever of the entailer ; held that the estate was liable for the debts and deeds of the banla'upt, and was vested in the trustfee in the sequestration ; Steele, 15th Feb. 1853, 15 D., 385, .2 Stu., 387. A deed of entail was made by the trustees of A in terms of his settlement in favour of B, his son, " and his heirs whatsoever, the eldest heir-female and the descendants of her body, excluding heirs-portioners, and succeeding always without division through Digitized by Microsoft® ENTAILS. 457 (2) But the heirs whomsoever of an intermediate substitute, where these are called, are proper heirs of tailzie ; because the future substitutes have a jus crediti to enforce the fetters. "■ 962. Explain the operation of the irritant and resolutive clauses. (1) An irritant clause irritates or annuls the act or deed pro- hibited, in so far as it may affect the estate. (2) A resolutive clause forfeits or dissolves the right of the contravener.^ 963. An entail contained perfect prohibitions against aliena- tion and the contraction of debt, but the prohibition against altering the order of succession was defec- tive ; Might the estate be adjudged for the debts of the heir in possession ? Yes ; an entail defective in any one of the prohibitions being now invalid and ineffectual as regards them all.' » Stirling, 28th May 1845, 7 D., ' Ersk., 3, 8, 25. 640; Duff's Entails, 39. ^ 11 and 12 Vict, c. 36, § 43. the whole course of the female succession, whom failing, then to the heirs whatsoever of the said deceased A." Held that this destination was not capahle of heing the subject of an effectual entail ; Macgregor, 1st Dec, 1864, 3 M'P., 148. See also Gordon, 1st March 1862, 24 D., 687, where it was held by Lord Neaves, in reference to the same deed, that the circum- stance of the institute being illegitimate, and his heirs whatsoever being therefore necessarily the heirs of his body, did not make the destination good as a tailzied succession ; but on the case going to the Inner House, the Court ex propria motu dismissed the action, in respect that there was no proper defender called with whom the question could be tried. Where the iinal destination was "to my own nearest of kindred, and their heirs and disponees whomsoever," held that " my own nearest of kin- dred " limited the succession to persons of the blood of the entailer, and therefore (distinguishing from a destination " to my own heirs and assig- nees ") that it constituted a good tailzied destination, effectual against prior substitutes ; CoUow's Trs., ut supra. An entail was executed in favour of several nominatim substitutes and their heirs-male, whom failing, the maker's " own nearest heirs whatsoever and their assignees, the eldest heir-female and the descendants of her body, excluding heirs-portioners, and succeeding always without division through the whole course of female succession, whether of heirs of tailzie or of heirs whatsoever who might succeed in terms of the last destination before speci- fied." Held that, notwithstanding the exclusion of heirs-portioners, the sole surviving nominatim substitute was entitled to acquire in fee-simple ; Gordon, 19th Dec. 1851, 14 D., 269. Digitized by Microsoft® 458 ENTAILS. 964. In 1800 a party granted an obligation to make a tail- zie, dispensing with delivery. He retained possession of the obligation till his death, in 1820. An action is raised in 1859 to enforce implement, against which negative prescription is pleaded ; Is the defence good ? State the reason. No ; because prescription runs, not from the date of the obli- gation, but from the time at which it takes effect. The party in right of the obligation was nmi valens agere till the granter's death ; and, therefore, when the action was raised, the full prescriptive period of forty years had not expired. 965. "Where directions are given to trustees to execute a strict entail of lands, specifying the usual prohibitions, ex- cept the prohibition to contract debt, but instructing them to insert all other conditions and clauses which they should consider necessary for carrying the trust- er's intention into effect ; Is the institute entitled to insist on an entail without a clause prohibiting the contracting of debt ? No ; because the trustees are directed to execute a strict entail ; and without a prohibition to contract debt, an entail would not be effectual.^ But if the trust-deed specifies the conditions without directing the execution of a strict entail, and without giving dis- cretionary powers, the trustees are not entitled to insert more than the specified conditions. ^(J) 1 Stirling, 30tli Nov. 1838, 1 D., ' Cuming's Trs., lOth July 1832, 130. 10 S., 804. (6) This is always a question of intention, and the use of the word " en- tail " is not essential. " There are many cases in which it has heen found that a direction to entail is to he discovered and dealt with according to what appears in a trust-deed to be the intention of the truster, although he may not have introduced into the trust-deed any statement of the clauses that are to he contained in the entail ; nor does it appear inconsistent with these decisions that this should be so, although the word ' entail ' may not occur in the trust-deed ;" per Lord President M'Neill in Thurburn's Trs., decided 24th, reported 30th, Nov. 1864, 8 M'P., 184, where, and in Leny, 28th June 1860, 22 D., 1272, and Cameron's Trs., 14th Dec. 1860, 23 D., Digitized by Microsoft® ENTAILS. 459 966. An entail was made in favour of A in liferent, for her liferent use only, and to the second son to he pro- created of her body, and the heirs-male of his hody, ■whom failing, &c., and the prohibitions were directed against A and the heirs of entail generally. The se- cond son, who was not born till two years after the entailer's death, served himself heir of tailzie under the entail, and completed the entail by infeftment ; Was he bound by the fetters ? The second son was not bound by the fetters ; because the fee vested in him on his coming into existence as institute, and there- fore he is not comprehended within the term lieirs ; his character 167, it was held that the directions did not warrant the execution of an entail. Where an entailed proprietor directed his trustees to purchase and en- tail lands on the same series of heirs and In terms of the entail of his estate, and it was discovered after his death that that entail, from being partially invalid, was, hy the operation of the 11 and 12 Vict., c. 36, § 43, rendered absolutely null, it was held that the next heir of entail was not entitled to get the lands so purchased in fee-simple, but tliat the trustees must execute an effectual entail ; Graham, 15th March 1852, 15 D., 558 ; aff., 18 D., 37. A testator directed his trustees to purchase lands with the residue of his estate, and to execute an entail thereof in favour of A and his heirs whatsoever, whom failing, to B and his heirs whatsoever, excluding heirs- portioners, whom failing, to the heirs and assignees of the testator. A and B were natural sons of the testator. B predeceased his father, without issue. Held that a deed in these terms would not be an effectual entail, but would vest the lands in A in fee-simple ; that the trustees were not entitled, with the view of making effectual the testator's intention, to execute an entail in favour of A and the heirs of his body ; and that, as the testator's intention could not be carried out, A was entitled to demand the residue in money ; Gordon, 2d March 1866, 4 M'P., 501. It was held under a will that two sums were to be invested in landed estates, to be entailed, the one on A and her heirs-male, whom failing, on B and her heirs-male, and the other on B and her heirs-male, whom failing, on A and her heirs-male, but with no further destination. A having died before any purchase was made, without heirs-male, but leaving a daughter, held that both sums should be invested in lands to be entailed on B and her heirs-male ; and she having subsequently died without heirs-male, but leaving two daughters, held that her marriage-contract trustees, to whom she had conveyed her whole rights under the will, were entitled to have the whole lands transferred to them in fee-simple ; Macalister, 9th March 1842, 4 D., 890. Digitized by Microsoft® 460 ENTAILS. as institute not being affected by his completing a title by ser- vice. '(<^) 967. An entail was made in favour of A, wbom failing, to B, whom failing, &c., and the prohibitions were directed against the "heirs and substitutes of entail." A pre- deceased the entailer ; and, on his death, B made up titles under the entail ; Was he bound by the fetters ? Yes ; because he was a substitute, and as the status of institute is personal to him who is first called as disponee, B did not acquire that character by his having survived A, and being the first to make up titles under the entail.^ 968. An heir of entail having incurred forfeiture of the es- tate to the Crown by treason, the estate was claimed after his death by the next heir, on the ground that the preceding heir's right had been forfeited by acts of contravention committed previous to the treason ; Was the claim valid ? State the reason. The claim was not valid ; because the right of a contravener subsists until the act of contravention is declared, and his title dissolved by decree of declarator and forfeiture ; and that not having been done, the forfeiture by treason cannot be excluded on the ground of irritancies previously committed. ^(e) 1 Maxwell, 20th Dec. 1836, 15 S., = Mackenzie, 24th Nov. 1818, F.C.; 291 ; aff. 1st Aug. 1839, M'L. and aff. (13th May 1822) 1 Sh. App., E., 790. 150. = Gordon, M., 4728. (d) Prohibitions directed against "the heirs and members of entail " do not affect the ipstitute ; Steele, 12th May 1814, F.C. ; but contra where the irritant and resolutive clauses were directed against each and " every heir and person," and the institute was mentioned by name in the prohibitory clauses ; Douglas & Co., 14th Nov. 1823, 2 S., 487. The usual prohibitions and clauses irritant and resolutive are now un- necessary where there is an express clause authorising registration in the Register of Tailzies. See supra, Ans. 949. (e) The circumstances of the case here referred to (Gordon) are not ac- curately stated in the question. The next heir's claim was made — (when alone it could be ; Maxwell, 15th Dec. 1843, 6 D., 2bb)— during the contra- vener's life, and, as here stated, the Court of Session refused to give eiTect to the contravention, as not having been declared previously to the forfeiture. Digitized by Microsoft® ENTAILS. 461 969. May deeds granted in contravention of the entail be set aside without reduction of the contravener's title ; or may the contravener's title be reduced without de- clarator of irritancy annulling the deed granted in contravention ? Deeds granted in contravention of the entail may be set aside at the instance of the substitutes, without reduction of the con- travener's title ; 1 but reduction of the title of the contravener must be preceded, or at least accompanied, by decree of declarator of irritancy annulling the deed granted in contravention.^ 970. An estate was entailed on A, B, C, and D, in their order, and the heirs of their bodies respectively, and it was declared that, on committing an act of contra- vention, the contravener should forfeit, not for him- self only, but also for his descendants. B having granted a deed in contravention of the entail. Has the heir of his body or D a title to reduce it ? (1) The heir of B's body has no title to challenge the deed, it having been held that, where the forfeiting clauses were not » Duff's Entails, 118. ' Bontine, 15th Jan. 1823, 2 S., 106 ; Duff's Entails, 118. Another question arose as to the extent of the forfeiture, and the Court found that it affected only the life-interest of the contravener, and that on his death the next heir would be entitled to succeed. The House of Lords reversed this part of the judgment, while afSrming the other, and found that the forfeiture would subsist " so long as there shall be any issue male of his body which would be inheritable to the estate tailzie in case he had not been attainted," but that thereafter the next heir would be entitled to suc- ceed, and reserved to him to apply to the Court on any new right accruing. On the death of the contravener, leaving two sons, born abroad, after his attainder, the next heir applied again, pleading that the sons were aliens, incapable of succeeding, and that therefore the succession had opened to him. The Court of Session rejected the claim, but the House of Lords, on appeal, sustained it. The question therefore should bear that " the estate was claimed during his life," and the answer as to the effect of the forfeiture should be qualified as above. "Where an entail provides that an heir's right shall come to an end on any contingency not of the nature of a contravention, such as his succession to a peerage, the devolution takes place without any declarator, and the next heir is entitled to the rents from the date of the succession to the peerage ; Hawarden, 2d Feb. 1866, 4 M'P., 353. Digitized by Microsoft® 462 ENTAILS. limited in their application to the oontravener only, but were directed against his descendants, a descendant is barred from ob- jecting to an act of contravention. \/) (2) D, although not the immediate substitute to the contra vener, is entitled to reduce ; the right of reduction being competent to any substitute, however remote.^ 971. May an alienation of part of the estate in contravention of the entail be set aside after the lapse of forty years? State the reason. No ; the reason being, that as the heir in possession is feudal proprietor, alienations by him are not ipso jure null, but chal- lengeable only in virtue of the statute ; and, therefore, if not challenged within forty years, they are fortified by prescription.^ 972. May a deed, granted in contravention of the conditions of the entail, he reduced, and declarator of forfeiture of the right of the contravener's descendants be pur- sued, after the contravener's death. A deed granted in contravention of the conditions may be reduced, but declarator of forfeiture cannot be pursued, after the contravener's death, even where the forfeiture is directed by the deed of entail against the heirs of tailzie and their descendants.'' 973. What is the effect of contravention on the contravener's descendants ? In the general case, the effects of contravention are limited to the contravener only. But where they are extended to the descendants expressly by the entail, the irritancy will strike against the descendants of the contravener as well as himself.^(?r) > Crs. of Gordon, M., 15384 ; Gil- * Mordaunt, 9th March 1819, F.O., mour, 6th March 1801, M. App., and 5th July 1822, 1 S. (Ap.),lG9 ; " Tailzie," No. 9. Maxwell, 15th Deo. 1843, 6 D., 255. ^ Dundas, M., 15430. * Ersk., 3, 8, 31, Ivory's Notes. ^Agnew, 23d June 1813, F.C. ; ^"66 Gordon, M., 15384 ; Bontine, 2d Menzies Lect., 726 (765). (?) March 1837, 15 S., 711.(A) (/) The title of a contravener's son suing jointly with a remoter heir has in such a case been sustained ; Keith Turner, M., " Tailzie," App., 16. (g) See also Mackay (Bargany), M., 11171. (A) Aff., 1 Rob. App., 847. (i) See Turner, supra, note (/). Digitized by Microsoft® ENTAILS. 463 974. Do liferent securities granted by the heir in possession fall by his subsequent forfeiture ? No ; it being provided by the Entail Amendment Act that no irritancies committed by the heir in possession shall in any way affect, in the person of any purchasers or hona fide onerous credi- tors, any conveyances or securities granted in reference to the estate, or the rents, prior to the execution of the summons of de- clarator, which are not invalid as being inconsistent with the pro- visions of the entail.^ 975. To what extent is an heir of entail liable for the en- tailer's debts ? (1) An heir of entail in possession, who is not the general re- presentative of the entailer, is liable for the entailer's debts only to the amount of the value of the estate.^ He is not bound to relieve the estate of the debts by discharging them out of his separate funds ; but on paying those debts he may take assignation, and keep them up against the succeeding heirs and the estate.' (2) An heir of entail is personally liable for the interest during his possession, but it, as well as the principal, aifeots the fee of the lands.^/c) ' 11 and 12 Vict., c. 36, § 40. ' Ker, M., 15551 ; Lawrie, 7th » Bell's Prin., 1743; Duff's Entails, Deo. 1830, 9 S., 147. 121 ; Sutherland, 26th Feb. 1801, * Campbell, 29th Nov. 1815, F.C. M., App., " Tailzie," No. 8. [k) By the Titles to Land Act 1860, ? 29, it is provided that " In all cases where there are or shall be entailer's or other debts or other sums of money which might lawfully be made chargeable by adjudication or otherwise upon the fee of the entailed estate, the heir of entail in possession of such estate for the time being shall have all the like powers of charging the fee and rents of such estate, or any portion thereof, other than the mansion-house, ofSces, and policies thereof, with such debts or sums of money, and of grant- ing, with the authority of the Court of Session, bonds and dispositions in security for the amount of such debts and sums of money as, by the Act 11 and 12 Vict., o. 36, and the Act 16 and 17 Vict., c. 94, are conferred with reference to provisions for younger children." See infra, Aus. 980, et seq. The maker of an entail executed a trust-deed, by which he directed his trustees to pay certain provisions to his younger children, and declared that in case the estate thereby conveyed should be insufficient to pay the whole provisions, then " I bind and oblige my heirs of entail succeeding to my en- Digitized by Microsoft® 464 ENTAILS. 976. Is the heir in possession liable for the debts of preced- ing heirs of entail ? (1) The heir in possession is liable for such debts if he is the debtor's general representative ; (2) otherwise he is not liable, un- less the debts have been constituted under the provisions of the Tailzie or the Entail Acts. 977. What is the proper form of attaching the heir's life- interest in the estate ? Adjudication of the lands themselves (not merely the heir's life-interest), under the qualiiication that the adjudication shall be absolutely extinguished, and the lands redeemed by the death of the debtor.' 978. What is the legal character of the right which an heir of entail grants to his wife under the Aberdeen Act, and how is the right completed ? By the Aberdeen Act an heir of entail, under an entail which does not sanction adequate provisions, is entitled to provide and in- feft his wife in a liferent provision out of the entailed lands by way of annuity, not exceeding one-third part of the free yearly rent or value as at the death of the granter, after deducting an- » Graham, 14tli Nov. 1828, 7 S., 13 ; Duff's Entails, 57. tailed estates to pay the deficiency, the heir of entail being entitled to re- lieve him or herself by an application to the Court of Session, in terms of the Act 6 and 7 "Will. IV, c. 42." Held that the provisions (but not the expense of making the application to the Court) might be charged under the Titles to Land Act; Blair, 11th March 1865, 3 M'P., 698. The maker of an entail bound himself, his " heirs-at-law, executors, and successors," to free and relieve the entailed estate of all his debts and obli- gations. Sixteen years previous to the execution of the entail he had granted a mortis causa bond for £6000 in favour of his wife in liferent and his only son in fee, which wag gratuitous, and declared to be revocable. His per- sonal estate was insufficient to pay his debts. After the death of the widow, his son, as heir of entail, presented a petition for authority to charge the en- tailed estate with the sum in the bond. Held that, assuming it to be an en- tailer's debt, it was not extinguished confusione, but that it was a debt which he had expressed his desire should not be made a burden on the estate. Petition refused ; Macalister, 16th Dec. 1865, 4 M'P., 245. Digitized by Microsoft® ENTAILS. 465 nual burdens, liferents, interest of debts, &c.'(?) Where too life- rents, under the statute, are existing at the same time, a third cannot be granted so as to take effect before one of the subsisting liferents expire, but such liferent may be granted to take effect prospectively.^ The security does not affect the fee but only the rents. "(m) The provision is constituted by an obligation in a contract of marriage or by a separate bond of annuity, by which the granter, narrating the enactment, provides and dispones to his wife in life- rent during all the days of her life after his death, in case she should survive him, a free yearly annuity, to be uplifted furth of the lands ; with the declaration, that the annuity is provided under all the conditions, restrictions, and limitations contained in the statute, and with an obligation to infeft in liferent de me, and pre- cept. As it is doubtful whether annuities, upliftable out of en- tailed estates, in virtue of the Aberdeen Act, are in the class of ''securities over lands, or the rents or profits thereof," and, conse- quently, whether the provisions of the Heritable Securities Acts are applicable to bonds of this description, (n) the right should be ' 5 Geo. IV, c. 87, ? 1- ' lb., i 3- ' lb., i 8. (1) See formula for calculating provisions to wives and children in Lock- hart M 'Donald, 18th May 1836, 14 S., 785. By the 11 and 12 Vict., u. 36, § 12, it was provided that the 5 Geo. IV, u. 87, should not he applicable to any tailzie dated on or after 1st August 1848, but by the 16 and 17 Vict., c. 94, ? 12, it is provided that "where in any tailzie executed after the 1st day of August 1848 tlie maker of such tailzie has declared, or shall declare," that the 5 Geo. IV, c. 87, "shall be applicable to such tailzie, then and in that case such Act shall be applicable to Buch tailzie," as if it had been executed prior to 1st August 1848. By the 5 Geo. IV, c. 87, J 13, it is provided "that the powers given and granted by this Act, and by the said recited Act" (10 Geo. Ill, u. 51), "shall in no case be exercised to such an extent as to deprive the heir in possession " " of nrore than two-third parts of the free yearly rents, or free yearly proceeds," of the estate. (m) An annuity to a widow does not aifect the rents of the estate accru- ing after her death, and therefore arrears are not recoverable from an heir of entail who had succeeded after her death, and did not represent the heir during whoso possession the arrears had accumulated ; Kiernan, 9th Feb. 1866, 4 M'P., 431. (n) The doubt here expressed is referred to also in Jur. Styles, i, 664, but it hardly seems to be well founded. By the 5 Geo. IV, c. 87, § 1, an heir of entail is empowered " to provide and infeft his wife in a liferent pro- 2g Digitized by Microsoft® 466 • ENTAILS. completed by infeftment or by registration (with a warrant) under the Titles Act. 979. Whether is a liferent provision to a widow, by way of annuity, not exceeding a certain proportion of the rents granted under the Aberdeen Act, or in virtue of a power in the entail, estimated according to the rental of the year of the granter's death or according to the rental as at the date of the deed ? (1) A liferent provision to a widow by way of annuity, granted under the Aberdeen Act, is estimated according to the rental of the year of the granter's death.' (o) (2) But such a provision, granted in virtue of powers in the entail, is estimated according to the rental of the lands at the date of the deed by which it is conferred.'^(^) 980. Do provisions to children, under a power in the entail or under the Aberdeen Act, affect the fee, or only the rents of the estate ? (1) Provisions granted under an unqualified power in the en- tail resemble an entailer's debt, and the fee of the estate is liable 1 5 Geo. IV, c. 87, § 1. ' Malcolm, 21st Nov. 1823, 2 S., 514.(p) vision out of his entailed lands and estates by way of annuity," wliich it is declared, by § 8, shall " affect the yearly rents or proceeds of the said lands and estates," while by the 17 and 18 Vict., c. 72, § 1, it is provided that the Acts 8 and 9 Vict., c. 31, and 10 and 11 Vict., u. 50, shall apply "to all deeds which, according to the existing law and practice, require to be fol- lowed by infeftment, in order to constitute a security over lands, or the rents or profits thereof," terms which seem sufficiently comprehensive to in- clude the bonds in question ; but if they are not " securities over lands, or the rents or profits thereof," infeftment seems inappropriate to them. (o) This was held to mean the year current at the death, and where a party died on 22d Jan. 1828, the rent of 1828 was taten as the rule; Camp- bell,' 21st May 1831, 9 S., G21. {p) The case (Malcolm) here quoted turned on the construction of the clause in the entail, and not on any general principle ; and in E. of Eothes, 29th Jan. 1829, 7 S., 339, the rental for the year of the death, and not that at the date of the bond, was taken as the rule. This case related to provi- sions to children, but the principle is the same. - In ascertaining the amount of provisions that may be granted to wives and children, the rent of game in use to be let is included ; Sinclair, 24th Nov. 1842, 5 D., 174 ; Maopherson, 16th Feb. 1843, 5 D., 651. Digitized by Microsoft® ENTAILS. 467 to be attached for payment.* (2) Provisions under the Aberdeen Act do not affect the fee, but only the rents f but such provisions may, under the Entail Amendment Act, be charged upon the fee of the estate (except the mansion-house and policies) by bond and disposition in security. -'(g) 981. Explain the nature and effect of provisions granted by an heir of entail to his children under the Aberdeen Act. (1) By the Aberdeen Act it is competent for the heir of entail in possession, under entails containing defective powers, to grant bonds of provision, or obligations binding the succeeding heirs of entail to pay to his children who shall not succeed to the estate a sum not exceeding one year's free rent (after deducting annual payments) for one child, two years' free rent for two children, and three years' free rent for three or more children, with interest from the granter's death, and payable one year after the granter's death.* (2) Where provisions to children are already constituted to the full extent, no farther provisions can be granted till some part of the former provisions shall have been extinguished; the heir in possession being entitled to grant provisions only in so far as the power may be open or unexercised for the time.''(r) (3) The provisions are effectual only to such children as are alive at or horn after the death of the granter.^(s) (4) But any of the children may settle their provisions with I Duchess of Richmond, 2d Deo. * 5 Geo. IV, c. 87, § 4. 1837, 16 S., 172. 5 lb., i 6. ■" 5 Geo. IV, c. 87, § 8. » lb.. ? 4. » 11 and 12 Vict., c. 36, § 21. [q] The 21st section of the Act applies also to provisions granted in virtuo of powers in the entail, but " no heir of entail in possession of an entailed estate shall charge the same, under this Act, with any provision to -any younger child or children until he shall have applied for and obtained tlje authority of the Court thereto;" § 23. By the 16 and 17 Vict., c. 94, such bond may be granted either to the children or any other party in right of the provision, or to any party advancing the amount thereof (^ 7), and may " contain a power of sale in ordinary form ;" § 23. (r) See note (I), p. 465. (s) The provision of any child succeeding to the entailed estate is there- upon, so far as not previously paid, extinguished ; 5 Geo. IV, c. 87, § 6. 2g2 Digitized by Microsoft® 468 ENTAILS. consent of the granter thereof on the issue of their marriage, so as to he effectual to them in the event of the hushand or wife, as the case may be, predeceasing the granter.' 982. "What is the effect of provisions granted by tlie heir in possession under the Aberdeen Act to his wife and children, while similar provisions by a former heir to the full extent of the statutory powers were still in subsistence ? (1) The wife's provision is valid, but its effect is suspended until the subsisting provision of the former heir's wife shall ex- pire.^ (2) The provisions of the children are null, as such provi- sions can be granted only in so far as the power, is " open or un- exercised for the time."^ 983. Where bond and disposition in security has been granted under the Entail Amendment Act for child- ren's provisions, and the interest has been allowed to fall into arrear ; To what extent are the fee and rents chargeable with the arrears of interest, and what re- course has the holder of the bond for such arrears ? The fee and rents are chargeable only with the principal sum and two years' interest ; but the holder of the bond has recourse for any further arrears of interest against the heir in possession, bound to pay and keep down the same, and against his represen- tatives and separate estate. *(t) 984. Where an heir of entail has bound himself in his daughter's marriage-contract to pay her a provision ; Is he bound to pay off a previous provision, the sub- sistence of which would have rendered inoperative the daughter's provision, as against the succeeding heirs of entail ? » 5 Geo. IV, c. 87, g 6. ' 5 Geo. IV, o. 87, § 6. ' lb., § 3. •'11 and 12 Vict., o. 36, ? 22. (<) " Including the rents of the said entailed estate during his or their possession ;" Act, § 22. There is, under 5 Geo. IV, ^. 87, a limitation of the liability of an heir in possession for provisions to wives and children (see supra, note {I), p. 465) ; hut as the granting of bonds and dispositions in security under 11 and 12 Vict., c. 36, is not compulsory, probably an heir granting such would forfeit the benefit of the provision of the 5 Geo IV c. 87. ■ ' Digitized by Microsoft® ENTAILS. 4:69 Tes ; an heir of entail who grants a vested provision to his child being under an implied obligation to make it effectual.' 985. The destination of an entail was to " A, and the heirs of his body, whom failing, to B, whom failing, to C, and the heirs of his body, whom failing," &c., and the deed contained power to grant provisions to " younger children other than the heir;" Was B, when the estate devolved upon him, entitled to burden the estate with a provision to his children? State the reason. No ; because the heirs of his body are not called in the desti- nation, and there can be no " younger children " where none of the children of the heir in possession are entitled to succeed.^ 986. In what cases does the Entail Amendment Act autho- rise the heir in possession to sell ? (1) He may, under the authority of the Court, sell any portion of the estate except the mansion-house and policies ; 1st, for pay- ing off any debts with which he might charge the lands by bond and disposition in security ; or 2cl, debts with which he might charge the estate by Act of Parliament, but for which he has no power of sale ; or Sd, for any debts validly charged against the fee of the estate.^ To these are added, by 16 and 17 Vict., c. 94, entailer's debts, or other debts or sums of money which might he made chargeable upon the fee.(a;) (2) The heir in possession, in full age, may, under the autho- rity of the Court, sell the estate in whole or in part, with the like consents as would enable him to disentail.'' 987. How is the surplus of the price to be applied after a sale under the Eutherfurd Act ? (1) If the surplus exceeds £200, it is invested in other lands 1 Sinclair, 22d Jan. 1840, 2 D., D., 432 ; aff. 13th June 1854, 1 356. Macq. App., 729. ' Dickson,(M) 4th Feb. 1852, 14 ^ 11 and 12 Vict., c. 36, J 25. * lb., i 4. (u) The first branch of this case is reported 4th July 1851, 18 D., 1291. (x) This is under § 9 of the Act, and by ? 10 it is provided that where at the passing of the Act a special Act had been obtained for the sale of an entailed estate, such sale may be carried through under the Entail Amend- ment Act, instead of the special one. Digitized by Microsoft® 470 ENTAILS. to be added to the entailed estate, or applied in payment of the entailer's debts, or of any money charged on the fee of the estate, or in redemption of land-tax, improvements or repayment of improvements. (y) (2) If the surplus is less than £200, it is paid to the heir in possession for his own use.' 988. What is the endurance of leases that may be granted under the Montgomery, the Eosebery, and the Eutherfurd Acts ? (1) The Montgomery Act authorises, 1st, improving leases for fourteen years after the ensuing term of Whitsunday, and for one life in addition ; (z) or for the lives of two persons in being at the date of the lease, and the life of the survivor, or for thirty-one years, the tenant being bound to inclose the lands within the time specified by the Act, and in the case of leases for two lives or more than nineteen years, the tenant being obliged to keep and leave the fences in repair ; (a) and 2d, building leases for ninety-nine years, of not more than five acres to one person, but under the condition that one dwelling-house at least, not under the value of ten pounds, shall be erected within ten years for each half acre.(&) The manor -place and inclosures may not he ' 11 and 12 Vict., c. 86, § 26. (y) By the 11 and 12 Vict., c. 36, | 26, "the heir in possession" is in certain circumstances entitled to apply to the Court to receive money arising from the sale of any portion of the estate "in repayment of money" ex- pended in improYements. An heir who had executed improvements ceded possession to a nearer heir suhsequently born, The nearer heir, as being in ■possession, presented a petition to the Court, with consent of the former heir, to have such money applied in repayment of his improvement expendi- ture. Held that the heir in possession who makes the application must be the heir who executed the improvements; that the circumstance that the heir who executed them having ceased to be the heir in possession, not by death, but by the birth of a nearer heir, formed no ground for making an exception to the rule ; and petition dismissed ; Stewart, 9th June 1863, 1 M'P., 897. (2) Such life being of a person existing at the time, and named. (a) This passage should be, " the tenant, in the case of leases for two lives or more than nineteen years, being obliged, within the periods and in the manner specified in the Act, to inclose the lands, and thereafter to keep and preserve tljo fences in good and sufficient repair during the lease, and to leave them so at the expiration thereof." (b) And shall be kept in proper repair. Digitized by Microsoft® ENTAILS. 471 leased, and all leases are declared null which are granted for a rent under the last rent, or for a grassum."- (2) The Eosebery Act authorises leases for twenty-one years of lands, and thirty-one years of minerals, either by public roup or private bargain, but without any grassum. The home-farm, or the mansion-house and inclosures, cannot be let for any period beyond the life of the heir in possession.^ (3) The Eutherfurd Act authorises, 1st, the heir in possession, of full age, with the like consents as are required for disentail, to lease the estate, in whole or in part, under the authority of the Court ; and 2d, the heir in possession under old entails, after notice to the next heir and with the approbation of the Court, to grant long leases of one-eighth part of the estate in value, exclu- sive of the mansion-house, &o., for the highest rent that can be got, but without any grassum.^ 989. To what extent are excambions permitted by the Mont- gomery, Eosebery, and Eutherfurd Acts ? (1) The Montgomery Act authorises excambions to the extent of thirty acres of arable land, or one hundred acres unfit for tillage, for an equivalent in land contiguous to the entailed estate ; the value of the land being ascertained by the Sheriff, and the con- tract being recorded in the Sheriff-court books, within three months after its execution.* (2) The Eosebery Act empowers heirs of entail to effect excam- bions of any portion of the estate not exceeding one-fourth of its value, excepting the mansion-house, garden, and home-farm.'* The forms of procedure introduced by the Eosebery Act are superseded by those authorised by the Eutherfurd Act, which pro- vides that notice shall be given to those heirs whose consent would be required to a disentail.^ (3) The Eutherfurd Act authorises the heir in possession to exoamb the estate, in whole or in part, with certain consents, and under the authority of the Court.''(c) ' 10 Geo. Ill, c. 51, §§ 1-8. » 10 Geo. Ill, c. 51, §§ 32, 33, 34. '^ 6 and 7 Will. IV, c. 42, §? 1, 2, 5 6 and 7 Will. IV, c. 42, §§ 3, 4. 20. « 11 and 12 Vict., c. 36, §§ 36, 37. = 11 and 12 Viot., u. 36, §§ 4, 24. ' lb., i 5. (c) By the 3 and 4 Vict., u. 48, § 1, power was given to heirs of entail, Digitized by Microsoft® 472 ENTAILS. 990. What is the nature of the improvements contemplated by. the Montgomery Act ; and to what extent can the expense of such improvements he made a burden on the succeeding heirs ? (1) The improvements contemplated by the Act are, Isf, in- closing, planting, draining, and erecting farm-houses and offices, but repairs are disallowed; and, 2d, building, repairing, or adding to the mansion-house and offices.^ To these have been added, by the Entail Amendment Act, private roads through the estate or for immediate access to it, which are to be deemed improvements in the same way as inclosing, planting, and draining.' (2) The Montgomery Act enables the heir in possession to be a creditor of the succeeding heirs for three-fourths of his expendi- ture ; but the claim is limited in the case of expenditure for in- closing, planting, draining, &c., to four years' free rent f and in the case of expenditure for building or repairing the mansion- house, to two years' free rent,* after deduction of public burdens, liferents, and interest of debts, which shall affect the estate, as at the first term of Whitsunday after the death of the improver. 991. How is the claim for improvement-expenditure made available against succeeding heirs under the Mont- gomery Act ? (1) Three months' notice before the commencement of the improvements must be given to the heir of entail (rf) entitled to succeed after the heirs of the body of the improver, and a copy of 1 10 Geo. Ill, c. 51, §§ 9, 27. = 10 Geo. Ill, c. 51, § 10. 2 11 and 12 Vict., c. 36, ? 20, •■ lb., J 28. or, if in minority or under legal disability, to their tutors or other legal guardians, " to grant or dispone in feu, or to let or lease for any period of endurance," certain limited portions of their estates, "as the sites of places of public Christian -worship and schools, and for burying-grounds and play- grounds for such places of public worship and scliools, respectively, and also for dwelling-houses and gardens for tlie ministers and schoolmasters thereof respectively." By the 11 and 12 Vict., u. 36, power is given to any heir of entail, being of full age and in possession, with the same consents as would enable him to disentail, and with the authority of the Court of Session, to "feu such estate in whole or in part ;" ?§ 4 and 6. (d) If within Great Britain or Ireland, or if abroad, to the nearest male relation by his father of lawful age, or to his known factor or attorney. Digitized by Microsoft® ENTAILS. 473 the notice lodged with the sheriif-clerk ; and the accounts (e) and vouchers must be lodged annually, four months after Martinmas, with the sheriff-clerk for registration.' (2) The improver may- get the amount judicially ascertained by action of declarator at his instance against the heir of entail entitled to succeed after the heirs of his owa body.^ (3) The claim is exigible one year after the death of the heir making the expenditure, with interest from the term at which the succeeding heir's right to the rents com- menced, and, if not paid within three months after requisition, the executor or other person in right of the claim may institute an action against the succeeding heir, and, upon obtaining de- cree, use every kind of diligence except adjudication of the fee of the estate ; hut the heir is entitled to be discharged on assigning one-third of the clear rents of the estate, and any balance that may remain after his death becomes a debt against the succeeding heirs.^ (4) The creditor is bound to require payment from the succeeding heir within two years after the death of the improver ; and, within six months thereafter, institute an action against the heir, and, without delay, to take decree and do exact diligence against him for at least one-third part of the rents which shall have become due to him, under the penalty of losing recourse against the future heirs to the extent of such third-part of the rents.^ 992. Where an heir of entail has obtained decree of declara- tor for improvement-money under the Montgomery Act ; For what amount, and for what period, may he be authorised to grant bond of annualrent under the Eutherfurd Act ? (1) Where the improvements have been executed before the passing of the Act, the heir may be authorised to grant bond of annualrent over the estate, to subsist during his own life and 1 10 Geo. Ill, c. 51, U 12, 14. ^ 10 Geo. Ill, c. 51, §? 15, 16. ' lb., i 26. * lb., U 20, 21. [e] The Act (§ 12) requires that the accounts shall be " subscribed by " the improver. Held, where he died before Martinmas, that they may be signed by his executors ; Breadalbane's Trs., 6th June 1866, 4 M'P., 790. Held also that they may be signed by a factor or commissioner ; Fraser, 2d Dec. 1835, 14 S., 89. Digitized by Microsoft® 474 ENTAILS. twenty-five years after his death, for the legal interest of the three- fourths during his own life, and for £7, 2s. per cent, on the three- fourths for the twenty-five years after his death.' (/) (2) Where the improvements have heen executed suhsequently to the passing of the Act, the heir may he authorised to grant bond of annualrent, to subsist for twenty -five years after the date of the decree of declarator, at the rate of £7, 2s. per cent, on the whole sums expended.(cj) 993. Where the heir making the expenditure has obtained decree for three-fourths, but has died without grant- ing bond of annualrent;. For what amount, and for what period, may his executor or assignee require the heir in possession to grant such bond ? A bond of annualrent at £7, 2s. per cent, on the three-fourths payable for the period of twenty -five years after the death of the improver.^(/i) 994. To what extent may bond and disposition in security be granted for improvement-money ? Bond and disposition in security may be granted for two- third parts of the sum on which the amount of a bond of annual- rent, if granted, would be calculated.'' 1 11 and 12 Viot., c. 36, § 13. " 11 and 12 Vict., c. 36, g 15. ^ lb., § 14. •• lb., I 18. (/) Where an heir of entail has applied for and obtained authority to grant bonds of annualrent or bonds and dispositions in security {infra, Ans. 934) for improvement expenditure, under 10 Geo. Ill, c. 51, and dies with- out having exercised the power to its full extent, his executors may proceed under that Act personally against the succeeding heir for payment of the balance ; Breadalbane's Trs., 6th June 1866, 4 M'P., 775. (g) The provisions of the 11 and 12 Vict., c. 36, referred to in this and the following answer, apply to estates held under entails dated prior to 1st August 1848. By § 12 of that Act it is declared that the 10 Geo. Ill, o. 51 (Montgomery Act), shall not be applicable to any tailzie dated on or after 1st August 1848 ; but by 16 and 17 Vict., u. 94, I 12, it is enacted that where the maker of any tailzie executed after 1st August 1848 has declared or shall declare that the 10 Geo. Ill, c. 51, shall be applicable to such tailzie, then, and in that case, such Act shall be applicable to such tailzie as if it had been executed prior to 1st August 1848. (A) See note (/), supra. Digitized by Microsoft® ENTAILS. 475 995. Is the heir in possession under a new entail entitled to grant provisions to his wife and children under the Aberdeen Act ? Unless the entail contain a declaration that the Aberdeen Act is to apply to the entail, the heir in possession has no power to grant provisions under the statute ; as neither the Aberdeen Act nor the Montgomery Act, in the absence of such a declara- tion, is applicable to new entails.' 996. Is the heir in possession under a new entail, containing a general prohibition against alienation and long leases, entitled to grant a building lease ? "Where the entail does not expressly prohibit the granting of building leases,(i) the heir in possession under a new entail has the same statutory powers of granting building leases as are pos- sessed by heirs under old entails. ^(y) 997. Explain the nature of the limitation imposed on trust rights, liferent rights, and leases, by the Entail Amendment Act. (1) Trust rights and liferent rights are limited to the persons in life at the date of the deed ; and a party born after that date is entitled, when of full age, to hold the subject as fee-simple proprietor, and may obtain act and decree of the Court to that effect, which, when recorded in the Kegister of Sasines, operates as a disposition and infeftment in his favour, the rights of supe- riors and others, holding rights independently of the deed by which the trust or liferent is constituted, being reserved entire.^ (2) Where land is held in lease, either directly or by trustees for his behoof, by a party of full age, born after the date of the deed, such party, it is declared, shall not be in any way affected by any conditions or prohibitions intended to regulate his succes- sion, or to abridge his possession or enjoyment in favour of any > 11 and 12 Vict., c. 36, § 12 ; 16 M6 and 17 Vict., ^. 94, § 13. and 17 Vict., c. 94, § 12. ' 11 and 12 Vict., c. 36, §2 47, 48. (i) Tliough it prohibits alienation and long leases generally. (» The 16 and 17 Vict., c. 94, § 13, confers the same power as to grant- ing fens where not expressly prohibited. Digitized by Microsoft® 476 ENTAILS. future heir ; the right of the proprietor to enforce bona fide stipu- lations being reserved.^ 998. What are the rights of heirs with reference to money vested in trust for the purchase of land to be en- tailed ? Money vested in trust for the purchase of land to be entailed is dealt with as entailed land ; and the person who would be heir under the entail is entitled to apply to the Court for warrant for payment of the money with or without consents as is required in the case of a disentail.^ 999. What are the steps of procedure by which the next substitute completes a title to the estate if a prior substitute contravene ? (1) Declarator of contravention ; (2) reduction of contravener's title ; and (3) service as heir of entail to the last member infeft who did not contravene.' 1000. How may entails be extinguished ? (1) By prescriptive possession on a fee-simple title, (7c) or on titles made up under the entail from which the fetters have been omitted. (2) By devolution of the estate on the last substitute. (3) By the succession of heirs-portioners, when these are not ex- cluded. (4) By disentail under the Entail Amendment Act. 1001. What consents are requisite to entitle the heir in pos- session to disentail, and in what circumstances may he disentail without consents ? 1. Under old entails : — (1) Irrespective of the time of his birth, the heir in posses- sion may disentail, 1st without aii}^ consent, if he is the only heir in existence at the time, and unmarried ; 2d, with consent of the whole heirs, if there be less than three in existence ; or otherwise, with consent of the three next heirs entitled in their order to succeed ; or with consent of the two next heirs, each of whom (J) ' 11 and 12 Vict., c. 36, ? 49. » Ersk., 3, 8, 32; Menzies Lect., "^ lb., i 27. 726 (766). (/c) See supra, note (c), p. i (I) In order successively. Digitized by Microsoft® ENTAILS. 477 •would be heir apparent, — the next heir in all these cases being twenty-five years of age, and under no legal incapacity. (2) If the heir in possession is born before 1st August 1848, he may disentail with consent of the heir apparent, being of the age of twenty-five, and not subject to legal incapacity, and born after 1st August 1848. (3) If the heir in possession is born after 1st August 1848, he may disentail, without any consent, if he is of full age. 2. Under new entails :— (1) If the heir in possession is born after the date of the entail, and of full age, he may disentail without any consent. (2) If he is born before the date of the entail, and is of full age, he may disentail with consent of the heir apparent, being twenty-five years of age, and not subject to legal incapacity, and born after the date of the entail.^ (m) 1002. What is the definition of the term "heir-apparent" under the Entail Amendment Act ? The term "heir apparent " is the heir who is next in succes- sion to the heir in possession, and whose right of succession, if he survive, must take effect. ^ 1003. Where an heir in possession under an old entail has, by marriage-contract, settled the estate on the issue of the marriage ; When may the estate be disentailed ? It is not competent for the heir in possession to apply for dis- entail until there shall have been born a child of the marriage, capable of taking the estate in terms of the contract, and who, by himself or his guardian, shall consent to such disentail ; or until the marriage shall he dissolved without such child being born, unless the trustees named in the contract shall concur in the applica- tion.' 1004. What is the effect of the recorded instrument of dis- entail ? 1 11 and 12 Vict., c. 36, |g 1, 2, 3. ^ lb., § 52. » lb., | 8. (m) If the petitioner die before the authority of the Court is got to record the instrament of disentail, the proceedings cannot be carried out by his re- presentatives ; Robertson, 10th June 1864, 2 M'P., 1178. Digitized by Microsoft® 478 ENTAILS. (1) It absolutely frees and disencumbers the entailed estate and the heirs of entail of all the prohibitions, restrictions, and clauses irritant and resolutive, and entitles the heir in possession to alter the course of succession, and to dispone or burden the estate onerously or gratuitously, and do any other act competent to a fee-simple projirietor. (2) It saves the effect of burdens and encumbrances, rights and interests, held by third parties affecting the fee or rents, or the heir in possession, or his successors, other than the rights and interests of the heirs-substitute of entail in or through the tailzie.' 1005. An instrument of disentail was duly expede and re- corded by the heir in possession, and after his death the estate was claimed by his heir-at-law and by the next substitute under the entail ; To whom does the estate belong ? The estate belongs to the next substitute ; because although the heir in possession, after recording the instrument of disentail, is entitled to alter the course of succession, the registration of the instrument does not per se have that effect. The order of succes- sion must be altered by a new conveyance, otherwise the estate will devolve in simple destination upon the substitutes prescribed by the entail. (to) 1006. How may a creditor in an entailer's debt protect him- self against the effect of disentail ? He may protect himself by inhibition ; and if he use that diligence within a year after the registration of the instrument of disentail in the Eegister of Tailzies, no debt or chai-ge on the estate, which would not have competed with his debt had the disentail not been recorded, can compete with it by reason of the recording of the instrument of disentail.^ 1007. Is it necessary that the title of an heir executing and recording a disentail should be complete ? > 11 and 12 Vict., c. 36, § 32. = lb., § 7. (n) This is in terms of ? 32, wliich, wliile it frees and relieves the estate and the heir in possession of the prohibitions, conditions, &o., leaves the destination unaffected until such heir shall exercise the power of altering it. Digitized by Microsoft® ENTAILS. 479 The Entail Amendment Act provides that all proceedings under the Act may be taken although the entail is not recorded, or the heir infeft.^ But when the heir in possession is in appa- rency, the disentail will not have complete effect unless validated by his subsequent infeftment.^ 1008. What is the proper course of procedure when lands are to be placed under a new instead of an old entail ? The proper course of procedure is for the heir in possession to present an application to the Court, under the 4th section of the Entail Amendment Act, for authority to execute and record the new deed of entail ; and, on obtaining such authority, to record in the Eegister of Tailzies, and feudalise the new deed. The 4th section of the Act provides that it shall be lawful for the heir in possession, under the authority of the Court, and with the like consents as would enable him to disentail, to dispone the estate, in whole or in part, either unconditionally or subject to condi- tions, restrictions, and limitations, according to the tenor of such consents ; and that the heir shall be entitled to make and execute, at the sight of the Court, all deeds necessary for giving effect to the disposition so made.^(o) It must be an express condition of the consents on which the application is founded, that the new disposition of the estate by the heir in possession shall be granted in favour of himself, and such a series of substitutes as may be agreed upon, subject to the conditions of an effectual entail ; that the fetters shall extend to the institute, or maker of the entail, as well as to all the heirs called after him ; and that the new deed > 11 and 12 Vict., c. 36, § 42. = 11 and 12 Vict., ■ ' Duff's Entails, 95. (o) The course here proposed seems to be quite incompetent, and in the construction put on the provision of the Act referred to, its terms appear to have been either overlooked or misapprehended. It declares that it shall be lawful for an heir of entail, " with such and the like consents as hy this Act would enable Mm to disentail such estate," "which shows that it is some power different from that of disentailing that was contemplated, and it exijlains that power to be " to sell, alienate, dispone, charge with debts or incum- brances, lease and feu such estate in whole or in part, and that uncondition- ally or subject to conditions," &c., as in the answer. The word "dispone" is to be read in connection with the preceding words, and as affording the means of carrying out a sale. Digitized by Microsoft® 480 ENTAILS. shall be duly registered in the Eegister of Tailzies and feudalised. This method is preferable to proceeding under the 3d section, by instrument of disentail ; for, besides being less expensive, it not only effectually discharges the old entail, but has this important advantage over the other form of procedure, that it protects the estate against the debts of the maker of the new entail, whether contracted before or after the date of the deed. Vn. CONFIRMATION OF EXECUTORS. 1009. What is confirmation ? Confirmation is the sentence of a Sheriff, as commissary, autho- rising an executor (one or more) to recover and administer the moveable estate of a person deceased, for behoof of themselves, or of others interested.' 1010. What was the quot of testaments? The quot of testaments was the twentieth part of the moveable estates of deceased persons falling to the bishop of the diocese, on granting confirmations, before the administration of such estates was taken out of the hands of the Church.^ 1011. In what commissariot must the testament of the de- funct be confirmed? (1) The testament must be confirmed in the commissariot where the defunct had his domicile at the time of his death. (2) If the deceased was domiciled abroad, confirmation is expede in the commissariot of Edinburgh, as the commune forum. (3) If he went abroad with an intention to return, it is expede in the com- missariot where he last resided before he left the country.^ 1012. Enumerate the diiferent kinds of executors, in their order of preference ? (1) Executors-nominate. (2) Executors-dative, in the following order : — 1st, The universal legatory or general disponee ; 2d, the next ' Ersk., 3, 9, 27. = lb., 3, 9, 28. ' lb., 3, 9, 29. Digitized by Microsoft® CONFIRMATION OF EXECUTORS. 481 of kin ;(p ) 3d, when the next of kin do not compete for the ofBce, their children or other descendants are entitled to the appoint- ment ; 4cth, the widow ; 5th, creditors of the deceased ; 6t7i, special legatees ; and, 7th, judicial factors.^ It appears to be doubtful whether the deceased's father, mother, and brothers or sisters uterine, when entitled, under the 3d, 4th, and 5th sections of the Intestate Moveable Succession Act, to participate in the deceased's succession, are likewise entitled to be conjoined in the office of executor with the next of kin.(r) If these relatives have that right, they would be preferred in their order after the widow. 1013. What is meant by a testament-testamentar, and a tes- tament-dative ? (1) A testament-testamentar is the confirmation of an execu- tor-nominate. It proceeds on the narrative of the will, or other deed of appointment, and ratifies, approves, and confirms the nomi- nation therein contained. (2) A testament-dative is the confirma- tion of an executor of a person who has died without naming one. It is preceded by a decree-dative, decerning the executor to the ofSce." 1014. What is the procedure in obtaining confirmation as executor-nominate ? The executor lodges with the commissary-clerk an inventory of the deceased's personal estate, given up on oath (s) along with the deed of his appointment, (t) and on these being recorded in the > Alexander's Prac. Com. Court, 42. ' Ersk., 3, 9, 32. (p) Alive, with the representatives of deceased next of kin, if any, who survived the intestate; 4 Geo. IV, c. 98, 5 1- {r) Looking to the terms of g 1 of the 18 Vict., c. 23, which excludes child- ren of predeceasing next of kin from the office where the surviving next of kin claim it, but gives them right to it where the surviving next of kin do not claim it, it would rather appear that the other parties referred to in the answer are not entitled to be conjoined in the ofBce. (s) If any of the persons named executors are dead or liave declined to act, this should be stated in the oath, as otherwise they will be included' in the confirmation. Where parties decline to act, evidence of this (by letter or otherwise) is generally required to be produced. (() And any other deeds relating to the succession. 2h Digitized by Microsoft® 482- CONFIRMATION OF EXEOUTOES. Commissary-court books he obtains, as a matter of course, a testa- ment-testameiitar.(M) 1015. "What is the procedure in obtaining confirmation as executor-dative qua next of kin ? (1) The applicant for the office of executor presents a petition to the Commissary, setting, forth the date and place of the de- funct's death, and his domicile ; and the relationship or other title of the applicant ; and praying for the appointment in the character claimed. (2) The petition is intimated by the commissary-clerk, by aifixing a copy on the door of the Commissary Court-house,(x) and on the walls of the office of the commissary-clerk, and by the keeper of the Eecord of Edictal Citations, by inserting in a book kept for the purpose an abstract of the petition, and publishing it along with the Abstract of Petitions for Service.(j/) (3) After receiving from the keeper of the Eecord of Edictal Citations a certified copy of the abstract, the commissary-clerk certifies on the petition that it has been intimated, and published,(z) and, on the expiration of nine days after such certification, the petition is called in Court, and the executor decerned, the decree being extractable on the expiration of three days after it has been pronounced. (4) After lodging an inventory of the personal estate,(a) and finding caution for his acts and intromissions, the executor obtains a tes- tament-dative.' 1016. What is the procedure in expeding confirmation as executor-creditor ? 1 21 and 22 Vict., c. 66, J| 2, 4, 5, 6. («) If after giving up the inventory other effects are discovered, ajj addi- tional inventory must te eshibited on oath ; 48 Geo. Ill, o. 149, § 38 ; and an eik to the testament, if required, is thereupon granted. (x) " Or in some conspicuous place of the Court, and of the office of the commissary-clerk." (y) The particulars to he entered in the Abstract are transmitted by the commissary-clerk to the keeper of the Eecord of Edictal Citations. (z) " Where a second petition for confirmation is presented in reference to the same personal estate, the commissary shall direct intimation of such petition to be made to the party -who presented the first petition ;" 21 and 22 Vict., c. 56, § 5. (a) And deeds, if any, relating to the succession. Digitized by Microsoft® CONFIRMATION OF EXECUTORS. 483 1. Where the debt was due by the deceased — (1) Where the debt is liquid — the document of debt must be narrated in and produced with the petition ; and, besides the ordi- nary publication, the petition must be notified by advertisement in the Edinburgh G-azette, and a copy of the Gazette produced in Court. In the oath upon the inventory, the creditor is required, by the Commissary's Instructions of 31st December 1823, to de- pone to the verity of the debt, but it has been held that this is not indispensable, as it is not required by 4 Geo. IV, c. 98.^ In other respects the procedure is the same as in the case of confir- mation as executor qua next in kin. Unlike other confirmations the confirmation of an executor-creditor may be partial, — of as much of the estate as will satisfy his debt, with expenses. (2) Where the debt is illiquid, — the creditor, before presenting his petition, must constitute his claim by decree in an action of constitution against the next of kin of the defunct, the action be- ing preceded by a charge to confirm within twenty days.(6) Such a charge, although abolished in the case of a constitution and ad- judication against an unentered heir, appears still necessary in the case of a confirmation as executor-creditor.-(Z)) The decree of con- stitution is produced with the petition, and in other respects the procedure is the same. 2. Where the debtor is living, and confirmation is to be ex- pede to a predecessor of the debtor, to whom he has succeeded, but has not confirmed — (1) Where the debt is liquid, — the petition is presented to the Commissary of the deceased predecessor's domicile, and craves 1 Greig, 1st March 1837 (15 S., = TurnbuU, 27th June 1860 (12 697). D., 1097). (6) Tliis is under the Act 1695, c. 41, which gives creditors the alterna- tive of requiring the Procurator-Fiscal to confirm antl assign to them. The question as to the necessity for such a charge was raised but not decided in "Turabull, cited, note 2 ; but it was held that where the next of kin do not appear, and decree passes in absence cognitionis causa without a charge, it does not per se constitute the debt so as to support a claim in a sequestra- tion, and opinions were expressed that, even where preceded by such a charge, it was merely the first step of diligence, and that if the party ob- taining it were appointed executor-creditor, he would require thereafter to prove his debt by proper vouchers like any other creditor claiming under tlie diligence. 2 H 2 Digitized by Microsoft® 484 CONFIRMATION OF EXECUTORS. that the creditor be decerned executor-dative of the predecessor qua creditor of his next of kin. (2) Where the debt is illiquid, — the creditor, before present- ing the petition, must constitute it against the debtor by decree of any competent Court.'- 1017. How can other creditors obtain pari passu rights with the executor-creditor confirming ? (1) By being conjoined in the office of executor-creditor with the creditor confirming ; or (2) by citing the executor-creditor to communicate what he may have recovered f or (3) by sequestra- tion^of the deceased's estates under the Bankrupt Act within seven months of his death, which cuts down the confirmation. '(c) 1018. A dies leaving a testament in favour of B, and B dies without confirmation, intestate ; How does C, the next of kin of B, make up a title ? must first get himself decerned and confirmed executor- dative of B, including in the inventory the amount or vniversitas of the succession of A ; and then obtain himself decerned and con- firmed executor-dative of A, the inventory in this case containing the pa/rticulars of A's personal estate.^(d) 1019. What would have been the procedure if B had left a testament in favour of C ? The procedure would have been the same as in the last case, with the exception that C, instead of expeding confirmation as executor-dative to B, would obtain a testament-testamentar.*((i) ' Alexander's Pract., 93. ' 19 and 20 Vict., u. 79, 5 110. ' A. S., 28th Feh. 1662. ■• Alexander's Praot., 90. » lb., 91. (c) A creditoT wishing to be decerned executor, to the exclusion of a prior applicant, may present a separate petition for this purpose. (d) The proceedings in these answers refer to the case of a party named executor and universal legatory or residuary legatee. In the case of an executor-nominate in trust, unless the appointment were so conceived as to give the executor's executor a title to the office, either the next of kin of A or the beneficiaries in his succession would apply for the office, or a judicial factor would be appointed, who would get himself decerned executor-dative. Digitized by Microsoft® CONl'IBMATION OF EXECUTOKS, 485 1020. Is it necessary to obtain probate for personal estate situated in England, which belonged to a person who has died domiciled in Scotland ? No ; it being enacted by the Confirmation and Probate Act, 1858, that when any confirmation of the executor of a person who shall be found to have died domiciled in Scotland, which includes, besides the personal estate situated in Scotland, also personal es- tate situated in England, shall be produced in the principal Court of Probate in England, and a copy thereof deposited with the re- gistrar, together with a certified copy of the interlocutor of the Commissary, finding that such deceased person died domiciled in Scotland, such confirmation shall be sealed with the seal of the Court, and returned to the person producing it, and shall there- after have the like force and effect in England as probate, or letters of administration. '(e) 1021. Where personal estate, situated in Scotland, which be- longed to a person who has died domiciled in England, has been included in the probate granted to hig exe- cutor ; Is it necessary to expede confirmation for such personal estate ? No ; where the probate, or a note, or memorandum, written thereon, bears that the deceased died domiciled in England, it may be produced in the Commissary Court of Edinburgh, and a copy deposited with the commissary-clerk ; and on a certificate being written by the clerk on the probate, of its having been pro- duced and a copy lodged, the probate, being duly stamped, has the same force and effect in Scotland as confirmation.^(/) 1022. In what cases is confirmation unnecessary ? ' 21 and 22 Vict., c. 56, § 12. = lb., § 14. (e) Personal property situated in Ireland also may be included in the inventory, tlie confirmation in this case being produced in and sealed with the seal of the Court of Probate in Dublin. In all cases the property in the different countries is stated separately in the inventory, and duty is paid on the aggregate amount ; 21 and 22 Vict., 0. 56, ?? 9, 12, and 13. (/) This provision of the Act includes letters of administration (equi- valent to the testament-dative), and extends to Ireland. Digitized by Microsoft® 486 CONFIBMATION OF EXECUTORS. (1) To give an active title to the jus relictoe and legitim ; (2) where the executor is in possession ; (3) where the thing or debt has been conveyed by special assignation by the deceased. Special legacies arc included under this rule. (4) Where the debtor is willing to pay without confirmation, or has granted a bond of cor- roboration to the next of kin. (5) Confirmation is unnecessary to vest the succession in the next of kin. (6) To entitle an executor to sue for a doubtful claim, it being sufficient to expede confirma- tion before extracting the decree. '(y) VIII. SERVICE OF HEIRS. 1023. "What is meant by the terms " heir of line," " heir of conquest," " heirs-portioners," "heir-male," "heir- male of the body," and " heir-female" ? (1) The term heir of line is equivalent to heir-at-law.(/i). As opposed to heir of conquest, the term heir of line means the heir who is entitled to succeed to the feuda antiqua, or heritable estate to which the ancestor succeeded as heir. Heir-male of line means the heir-male, excluding the heir of conquest. (2) The heir of conquest is the heir m. feuda nova — ^feudal sub- jects acquired by purchase or gift.(4) Succession to conquest, as contradistinguished from succession to heritage, happens where a middle brother or sister dies, leaving a younger and an elder brother, the younger brother taking the heritage, and the elder the conquest. (3) Heirs-portioners are females in the same degree of propin- quity, who succeed to equal shares, pro indiviso. (4) Heir-male is the nearest male heir connected by males, exclusive of females and males connected by females. ' Ersk., 8, 9, 30 ; Menzies Lect., 468 (g) "Where, liowever, the pursuer is not an executor-nominate, he must he decerned executor in order to give him a title to sue. It will be observed that, whether confirmation is required or not, an in- ventory of the whole estate must be given up. (A) Or heir-general. (t) Subjects, though acquired by gift or conveyance, constitute heritage if the party acquiring them was alinqui succcssitrvs ; Ersk., 3, 8, 15. Digitized by Microsoft® SERVICE OF HEIRS. 487 (5) Heir-male of the body is the eldest son, or his descendant, being a male connected by males. (6) Heir-female applies to the heir-at-law, male or female, failing heirs-male.' 1024. If lands are destined to the heirs-female of A's body, or to his eldest daughter or heir-female ; or to his eldest daughter without division ; and A dies, leaving a daughter and a granddaughter by an only son; Who succeeds? (1) If the destination were to the heirs-female of A's body, the granddaughter would succeed. ^(/i;) (2) If the destination were to his eldest daughter, or heir- female, the granddaughter would succeed.' (3) if the destination were to the eldest daughter without division, the daughter would succeed.* 1025. Lands are destined to the heirs-male of A's body, whom failing, to the heirs-female of his body ; and A dies, leaving a granddaughter by his eldest son, and a granddaughter by his second son ; Who suc- ceeds ? (0 The granddaughter by the eldest son, being the heir-female of A.' 1026. Lands are conveyed by a stranger to A, whom failing, to B, and his heirs whomsoever ; A succeeded, and died, leaving a son, B having predeceased him with- ■ ^Ersk., 3, 8, 47, et seq.; Bell's * Lady Essex Ker, 13th Not. Prin., 1695; Duff's Entails, 15. 1810, E.G.; aff. 26tli Feb. 1812 (5 ' Duff's Entails, 16. Pat., 679). ' Lyon, 19th June 1739, 5 B. S., ' Ersk., 3, 8, 48 ; Bell's Prin., 663. 1699. (k) See case of Bargeny (Hope), H. of L., 27th March 1739, 1 Or. and St., 237; reversing judgment of Court of Session, 11th July 1738, Elohies, Prov. 6, Heirs, 2. {1} There is obviously some mistalce in this question, and it is not easy to say what it should be. Tliere can be no doubt that in tlie circumstances stated the grand-daughter by the eldest sou is entitled to succeed ; but the diificulty is to see how any question could arise out of them . Digitized by Microsoft® 488 SERVICE OF HEIRS. out issue. The lands were claimed by A'b son and by B's brother ; To whom do they belong ? The lands belong to B's brother ; A's heirs not being called.* 1027. Lands are destined to A, and the heirs-male of his body, and the heirs whatsoever of the bodies of the said heirs-male. The eldest son succeeded, and died, leaving a brother and a daughter ; Who will succeed? The daughter ; as being the heir whatsoever of A's body.^ 1028. Lands are conveyed by A to his son B and his heirs- male, whom failing, to the heirs-female of the body of A. On B's death, without issue, the lands were claimed by his brother and by A's daughter ; To whom do they belong ? To B's brother ; as the heir-male general of B.' 1029. What is the construction of a destination to " A, my oldest son, and his lawful children, in equal propor- tions?" A is sole fiar, and not merely a joint-disponee with his children.^ 1030. An estate is destined to A, and the heirs-male of his body, whom failing, to B, and his lawful heirs-male, whom failing, to the heirs-female of C ; and a compe- tition arises betwixt the younger brother of B and the daughter of C ; Who will be preferred ? The younger brother of B, as being his heir-male general, will be preferred to C's heir-female ; the term " lawful heirs-male " not being limited to heirs-male of the body.^ 1031. An estate is destined to A, and the heirs-male of his > Ersk., 3, 8, 44. * Edward, 12tli Feb. 1848, 10 D., ' Lockhart, 19tli Jan. 1837, F.C.; 685. and 24th Jan. 1840, 2 D., 377.(m) ' Hay, M., 2315, aff.(n) ; Duff's ' Hay, M., 2315. Entails, 23. (m) Bell's Prin., i 1700. (n) 7th April 1789, 3 Pat., 142. Digitized by Microsoft® SERVICE OF HEIRS. 489 body, whom failing, to the heirs-female of his body ; and a competition arises between a daughter of a son and a daughter of the granter ; (o) Who will be pre- ferred ? The daughter of a son will exclude the daughter of the granter, as the former is the nearest heir-female of A.' 1032. What is the nature and object of special and of gene- ral service ? (1) Special service is a judicial proceeding for establishing the heir's right to succeed to particular subjects, in which his ancestor died feudally vested, and so entitle him to demand a renewal of the investiture from the superior. But it does not take the feudal right out of the hoereditas jacens of the ancestor, and its effect is lost if the heir die without having been vested by sasine or registration. (p) (2) General service is used for establishing the general cha- racter of heir without reference to any particular subjects, and for conniecting the heir with the unexecuted warrants contained in his ancestor's title ; so as to enable him, in virtue of these warrants, to complete a feudal investiture. These, as well as all other personal rights to land, general service effectually transmits to the heir, in whose hcereditas jacens they will remain after his ' Duff's Entails, 25. (o) This question, as it stands, is hardly intelligible, as there is nothing in the statement of the destination to show that the grantor's heirs, with one of whom the competition is said to arise, can have any interest in the suc- cession. Probahly A is to be understood as the granter, and in that case the question will represent the point that arose in the case of Bargeny {supra, note (A), p. 487). Here an estate was, after some destinations which did not take effect, destined in favour of the heirs-male of the body, whom failing, the eldest heir-female of the body of the maker, and the son having died without male issue, the question arose whether, under the destination to heirs-female of the body, the succession devolved on the maker's grand- son by his own daughter, or his great-grandson by the son's daughter. The Court of Session at first found that the destination carried the estate to the great-grandson, but afterwards that it carried it to the grandson. The House of Lords reversed this judgment on appeal, and confirmed the first, in favour of the great-grandson. (p) So held, Moreton's Trs., 19th July 1854, 16 D., 1108. Digitized by Microsoft® 490 SERVICE OF HEIRS. death, although they should not have been feudalised in his person. It likewise carries all heritable subjects -which do not require for their completion a registered title. '(r) 1033. What rights are transmitted ipso jWe without service? (1) Allodial rights ; (2) honours and dignities ; (3) unregis- tered leases ; (s) (4) heirship moveables ; (5) A jus crediti under a marriage-contract ; (t) (6) moveables made heritable destinatione? 1034. What was the procedure in expeding services before the Service of Heirs Act came into effect ? (1) The claimant obtained a brieve from Chancery, directed, in the case of special service, to the sheriff of the county where the lands lay, or to the Sheriff of Edinburgh, (m) and, in the case ' Stair, 3, 5, 25; Bell's Prin., 1824, '^ Ersk., 3, 8, 77; Bell's Prin., et seq.; Duff's Feud. Gonv., 443. 1825 ; Menzies Lect., 750 (792). (r) Formerl.v a special service included a general one in the same cha- racter, but this effect is now limited to the particular lands, &c. ; 10 and 11 Vict., c. 47, I 23. (s) By the 20 and 21 Vict., c. 26, ? 8, it is provided that "it shall be competent to the heir who shall have been served by general or special ser- vice " to expede and record u, notarial instrument in the form directed, which "shall complete the title of such heir;'' but it is not made impera- tive to follow this course, and by § 7 the heir's title may be made up ab in- testato by writ of acknowledgment from the proprietor. Where the heir wishes to assign the lease, eitlier absolutely or in security, he must, under the provisions of Yi 3 and 4, complete his title in one of these ways, but in other respects tlie law is not changed by the Act in question, and there seems no reason to doubt that for the mere transmission of the right a re- gistered as well as an unregistered lease vests in the heir ab intestato without service. {t) So found, Ogilvy, 16th Dec. 1817, F.C. ; but if the obligation in the contract has been implemented by the stipulated sum being laid out by the father, the children cease to be creditors, and must take up the provision by service. In the same way the jus crediti under a trust-deed vests without service, and the party in right of it may proceed at once against the trustees to compel them to denude ; Gordon's Trs., 4th Dec. 1821, 1 S., 185. A bond payable to A, whom failing, to B, passes to B withoiit service, but later substitutes require service to instruct the failure of the prior ones ; Stair, 8, 5, 6 ; Ersk., 3. 8, 73. (u) This form, which was substituted for that of service before the Macers, was competent only where the lands lay in different counties ; 1 and Digitized by Microsoft® SERVICE OF HEIKS; 491 of general service, to any Judge Ordinary, to try the validity of the claimant's title by an inquest or jury. (2) The brieve was executed ediotally at the market-cross of the head burgh of the jurisdiction within which the service was to be expede. (3) The service proceeded on a claim, in which the party answered (a;) the different heads of the brieve {See Ans. 1035 and 1036), and ad- duced the necessary proof to the jury. (4) The jury pronounced a verdict finding the claim proved. (5) The service and brieve were retoured [y) to Chancery, and an extract-retour given out, which was the heir's evidence of the service.' 1035. What were the heads of the brieve in special service ? (1) The death of the ancestor at the faith and peace of the sovereign; (2) the propinquity of the claimant; (3) the claim- ant's lawful age ; (4) the extent and valuation of the land ; (5) the superior; (6) the tenure and reddendo; (7) the person in whose hands the lands have been since the death of the ancestor.- 1036. "What were the heads of the brieve in general ser- vice ?(z) (1) The death of the ancestor at the faith and peace of the sovereign; (2) the claimant's propinquity; and (3) his lawful age.^(o) ^Ersk., 3, 8, 67; Duff's Feud. ^^j.^^ _ 3_ 3^57. jejPgPj-iQ^^ ]828_ CouT., 455, et seq. 3 Bell's Prin., 1849. 2 Geo. IV, c. 38, § 11. The proceedings were regulated by A. S., 25th Feb. 1824. The Court for the service was held in the Couit-room of one of the Divisions of the Court of Session, and a W.S. officiated as cleik ; A. S., § 3. (2:) Or rather set forth the grounds on and the lands in which he claimed to be served heir under the difforent heads of the brieve. It was the in- quest who answered the inquiries contained in the brieve. [y) If the verdict was negative to the claim, no retour was made. [z) The terras of the brieve never varied, except as to the degree of rela- tionship and the character in which the heir was to be served, but in gene- ral services the last four heads of the brieve were not answered. (a) It was assumed that the ancestor died at the faith and peace of the Sovereign, and the question as to the heir being of lawful age was always answered in the affirmative, this being, after the abolition of ward-holding, a' point of no importance. Digitized by Microsoft® 492 SERVICE OF HEIES. 1037. What now is the procedure in expeding a special ser- vice? (1) A petition for the claimant (6) is presented to the Sheriff of Chancer}', or to the sheriff of the county where the lands lie, setting forth, 1st, the death of the ancestor ; 2d, the date of his death ; 3d, the description of or (under the Titles Act ') a refer- ence to the subjects ; ith, the ancestor's title ; and, 5th, the claimant's propinquity, and, in the case of service as heir of pro- vision, the deed under which the claimant has right. (2) The petition is published edictally in Edinburgh and in the county. (3) The ancestor's death and the claimant's propinquity are proved ; the evidence being either led before the sheriff, or taken by a magistrate of any city or burgh, (cZ) or by a special commis- sioner.(e) (4) Decree of service is pronounced by the sheriff. (5) The proceedings are transmitted to Chancery, and an ex- tract-decree is thence issued, which is the legal evidence of the service.^ 1038. Before what judge may a general service be expede, and what particulars does the petition set forth ? General service may be expede before the Sheriff of Chancery or the sheriff of the county of the deceased's domicile. The peti- tion sets forth, (1) the death of the ancestor ; (2) the date of death ; (3) the ancestor's domicile, or, if the ancestor died up- wards of forty years before the date of presenting the petition, and the domicile is unknown, that the petitioner is unable to prove the domicile ; and (4) the propinquity of the claimant.' 1 21 and 22 Vict., o. 76, § 15.(c) ' 10 and 11 Vict., c. 47, §§ 3, 4 ; ' 10 and 11 Vict., c. 47, § 3, et seq. 21 and 22 Vict., i;. 76, § 30. (b) Signed by him or a mandatory specially authorised. (c) This section is repealed by § 34 of the 23 and 24 Vict., c. 143, which is substituted for it ; supra, note (x), p. 268. (d) " By the provost or any of the bailies of any city or royal burgh." («) No evidence can be led till the inducice have expired, which, where the deceased died in Scotland, are fifteen days after the latest date of publi- cation, or where publication is to be made in, or the petition is presented to the Sheriff of, Orkney or Shetland, or where the deceased died abroad, thirty days; 10 and 11 Vict., c. 47, i 10. Digitized by Microsoft® SERVICE OF HEIRS. 493 1039. "What must be proved in special service ? (1) The death of the ancestor ; (2) the date of death ; (3) that the ancestor was infeft ; (4) the claimant's propinquity. 1040. What must be proved in general service ? (1) The death ; (2) the date of death ; (3) the ancestor's domi- cile ; (4) the propinquity. The Titles Act provides that if the deceased died upwards of forty years prior to the date of present- ing the petition, it shall not be necessary to state or prove the deceased's domicile, but that it shall be sufficient to state in the petition, and, if required, to make oath that the petitioner is un- able to prove the domicile.^ 1041. In what cases is it necessary to expede service in the Sheriff Court of Chancery ? (1) In special services, where the lands lie in different coun- ties. (2) In general services, where the deceased's domicile was furth of Scotland,^ or cannot be proved.' 1042. Where a claimant in a disputed succession wishes the case disposed of by jury trial, how does he pro- ceed? Before the proof is begun to be taken by the sheriff, the claimant presents a note of advocation to the Court of Session, praying the Court to advocate the proceedings, in order that the case may be tried by a jury ; the subsequent procedure being the same as on notes of advocation presented with a view to jury trial against judgments of the Sheriflf-courts.'(/) 1043. Where a person, not the lawful heir, has obtained in- feftment in virtue of a service or precept of dare con- stat, may the true heir serve ? (1) If the service on which the infeftment has passed is in the proper character, though otherwise objectionable, the true ' 21 and 22 Vict., o. 76, t 30. « 21 and 22 Vict., c. 76, § 30. ' 10 and 11 Vict., c. 47, § 3. * 10 and 11 Vict., ^. 47, i 17. (/) This course may be taken also by any person competently appearing (J 16) to oppose any petition of service. Digitized by Microsoft® 494 BEKVICE OF HEIRS. heir is excluded from serving in special until reduction of the infeftment ; as such service is incompetent when the fee is full.' (2) It has been held that he may serve heir in general, to give him a title to reduce ; '' but it has been subsequently found that the second service carries nothing, and that it is not necessary for the pursuer of a reduction of a general service to expede a general service in his own favour.'{5r) (3.) Infeftment on a precept of dare constat not jproceeding on service, appears to be insuflScient to exclude service in special, as the investiture is the mere act of the superior.' 1044. By a delivered deed A disponed to himself, whom fail- ing, to B, whom failing, to A's heirs-male. On the death of A (B having predeceased him), his heir-male expede service as " nearest and lawful heir-male in general of A," and took infeftment on the deed ; Was his title valid ? State the reason. No ; because the service ought to have been as heir-male of provision ; a service as heir-male simply not proving that B had failed.'^/i) 1045. Under a destination to A and heirs-male of his body, Would service by his eldest son be valid if it w£re ex- pede as " nearest and lawful heir of line of A ;" or aa " nearest and lawful heir of line of A, his father "? (1) Service as " nearest and lawful heir of line of A" is inept ; because it does not prove that the heir is an heir-male of the body 1 Cunningham, 2'7th Feb. 1812, = Wilson, 11th Feb. 1851, 13 D., F.G. ; Bell's Prin., 1830 and 1840 ; 636. Duff's Feud. Gonv., 445. * M'Callum, M., 16185 ; Bell's = Macara, 15th Feb. 1848, 10 D., Prin., 1840. 707. = Erslc, 3, 8, 74 ; Duff's Feud. Com'., 471. {g) A party may pursue a reduction of adverse titles at least where his propinquity is admitted ; Eutherfurd, 12th Nov. 1830, 9 S., 3 ; Young, 16th Jan. 1844, 6 P., 370. See also Paterson's Trs., 1st Dec. 1864, 17 D., 117. (A) The object of a service is not to prove facts, but to take up a right, though for this purpose it is necessary to prove certain facts. The service here should have been as heir of provision, because it was only under the special deed that the heir had right to the succession. Digitized by Microsoft® SERVICE OF HEIRS. 495 of A.' (2) But service of tlie eldest son as "nearest and lawful heir of line of A, his father," has been sustained ; because the ser- vice proved not only the heir's universal right, but that he was heir-male of the body of A.^ 1046. Where one is erroneously served heir of provision in- stead of heir of line, "Will that invalidate the service ? No ; provided the decree of service contain evidence that the party possesses both characters.^ 1047. Is it necessary, in a general service as heir of provi- sion, to specify the particular deed of provision ? Formerly such a specification was unnecessary,* but it is now indispensable. ° 1048. A, by a delivered deed, but under reservation of his liferent, disponed to B, whom failing, to C. B pre- deceased A. How does C make up his title ? C will serve as heir of provision in general to B ; and being thus in right of the unrecorded conveyance by A he will be feu- dally vested by infeftment on the transmitted precept, or by nota- rial instrument (Titles Act), Schedule B (i) or Schedule K. 1049. A, infeft, dispones to the heirs of his body, whom failing, to B, whom failing, to C, whom failing, to D. B serves as heir of provision in general to A, and pos- sesses on the personal title; C succeeds and possesses on apparency ; On the death of C, how will D make up his title ? D, passing over C, will serve as heir of provision in general to B, and take infeftment on the transmitted precept, or expede a notarial instniment (Titles Act), Schedule B («) or Schedule K. 1050. By mortis causa settlement, which remained undeli- > Edgar, M., 14015 ; 2 Boss L. C, s Bell, M., 14016 ; 2 Boss L. C, 522. 549. ^ Haldane, M,, 14443 ; 2 Boss L. * Hay, M., 14369 ; 2 Boss L. C, C, 564. 563. ^ 10 and 11 Vjci, u. 47, § 4. (i) See supra, note (n), p. 433. Digitized by Microsoft® 496 SERVICE OF HEIRS. vered till the granter's death, lands are disponed to A, B, and C, successively, and the heirs of their bodies ; A and B predeceased the granter without issue ; How is C to make up his title ? It is still unsettled whether, in this case, C is a conditional institute or a substitute. If he possesses the former character, he may be feudally vested by infeftment on or registration of the deed, without service ; but if he is a substitute, he must first serve as heir of provision in general to A, the institute. Until the ques- tion is authoritatively determined, it will therefore be prudent to expede an alternative title, (1) as conditional institute, by direct infeftment or registration ; and (2) as substitute, by service as heir of provision in general to A, and infeftment or notarial instrument, Schedule B (y) or Schedule K.'(Z) ' Colquhoun, 8th July 1831, 9 S., 18tli Aug. 1843, 2 BeU's App., 195 ; 911 ; 2 Eoss L. C, 57 ; Fogo, 25th 2 Ross L. C, 36. Feb. 1840, 2 D., 651 ;(A) H. of L., (J) See supra, note (n), p. 433. (A) See opinions of judges, under remit, from H. of L., 11th March 1842, 4 D., 1063. See also Dennistoun, 5th Feb. 1824, 2 S., 678. {I) With the cases of Gordon of Carleton, M., 14366 ; Peacock, 22d June 1826, 4 S., 742, and Colquhoun and Fogo, here cited, standing on the books, it is impossible to say with certainty what is C's character, and consequently how the title should be made up in the case here put. The course laid down, or rather perhaps suggested, in Colquhoun, of a declarator to prove the party's right as conditional institute, may be laid out of view, the judges having all concurred in opinion (in Fogo) that it is unnecessary. Such a decree cannot have the effect of vesting any right which had not previously vested. The judgment in Fogo having been carried by appeal to the House of Lords, was remitted for the opinion of the whole Court on certain ques- tions, and in conformity with the opinions so given, and which are reported 11th March 1842, 4 D., 1063, the case was disposed of in the Court of Ap- peal. The judgment and opinions now referred to suggested a mode of making up titles in such cases which obviated the difficulty arising from the uncertainty of the law applicable to them, and may be adapted to the case supposed. In Fogo the heir or substitute who first succeeded made up her title, proceeding on the assumption that the right had vested in the nominatim institute or disponee, to whom she accordingly served heir of pro- vision in general, and holding that she had thereby acquired right to the open procuratory, expede a charter of resignation, and took infeftment there- on. The judges of the Court of Session held unanimously that she had thus made up a valid feudal title, because, if she was a substitute, her ser- Digitized by Microsoft® SERVICE OF HEIRS. 497 1051. Under the above destination, how is C to make up his title if A predeceased, but B survived, the granter without making up any title ? He should complete an alternative title : — - (1) On the assumption that B was conditional institute, will serve to him as heir of provision in general; and (2) on the as- sumption that the personal right had vested in A, and that B was a substitute, C, passing over B, will serve as heir of provision in gene- ral to A ; the title in each case being feudally completed by sasine or notarial instrument.(TO) vice carried right to the procuratory, while, if she was conditional institute, she had right to it, and was entitled to use it without any service. In con- formity with the view that had thus heen adopted and sanctioned in Fogo, the practice was, to expede a service to the institute or disponee, and in the sasine or charter to set forth that the party in whose favour it was had right to the precept or procuratory, either by virtue of the service or as conditional institute or disponee. The principle on which the practice now explained proceeded, and which forms a comhination of the two modes proposed in the answer, is equally applicable to the present system of titles. In the case supposed, C should either (1) serve as heir of provision in general to A, after which he has, in one way or other, undoubted right to the disposition, and should then expede a notarial instrument in the form of Schedule K, and record the conveyance, with a warrant of registration thereon, along with the notarial instrument, in the Eegister of Sasines. Supposing him to be a sub- stitute, this is the appropriate mode of completing his title, and if, on the other hand, he is a conditional institute, the registration of the conveyance with the warrant is suflBcient, and all the rest is superfluous, but harmless. Or, (2) if C prefers making up a title by resignation, he should first serve heir as before, and then get a writ of resignation, in which it will be set forth that he has right to the clause of resignation, either as conditional institute or by virtue of his service. The course suggested in the answer is correct, but it seems better, if pos- sible, to avoid making up double titles, unless to prevent intricacy or confusion in the deeds. See infra, Ans. 1079, and notes (n) and (o), p. 512. (m) The alternative mode of completing the title would meet the case, but there seems to be no necessity for making up a double title, as C, after being served heir to A and B, might proceed in either of the ways pro- posed (supra, note (I), p. 496), setting forth his right to the disposition, either as conditional institute or by virtue of the two services, or one or other of them. One practical inconvenience may arise in applying the principle of conditional institution, which would be avoided if the right were held to vest in the disponee, without reference to survivance, viz., that where there are several parties named prior, in order, to the person making up his title, a mistake as to the order and dates of their deaths might produce a fatal 2i Digitized by Microsoft® 498 SERVICE OF HEIRS. 1052. By mortis causa settlement, whicli remained undeli- vered till the granter's death, A, infeft, disponed to the heirs of his body, whom failing, to B, whom fail- ing, to 0. A having died without issue, and B having survived him without making up any title ; How will C proceed on the death of B ? C will pass over B and serve as heir of provision in general to A, in whom it may be held that the fee remains ; on the principle, that the destination is the same in effect as if A had first insti- tuted himself.' On the other hand, it may be held that B was conditional institute ; in which view, C ought to make up an alter- native title by service as heir of provision in general to B, as well as by service to A.^(ra) 1053. A, infeft, disponed to B, who, by a delivered deed, disponed to himself and the heirs of his body, whom failing, to C. B having died without issue, and with- out completing a title under the conveyance by him- self, C completed a title under it, by general service to him and notarial instrument. Schedule B ;(o) Specify the writ narrated, and those deduced in the instru- ment, assuming that B was infeft, and assuming that he was not infeft on A's disposition to him. (1) If B had been infeft on A's disposition to him, the nota- rial instrument expede by C would narrate the disposition by B, and deduce C's service. ' Crs. of Carleton, M., 143G6; ^^ Fogo, note p. 496. Menzies Leot., 752 (795). error in the completion of the title. It is only in such cases as are here re- ferred to that any difficulty seems to arise in the practical application of the course suggested {supra, note (i), p. 496), as deduced from Fogo, and the only way of ohviating it and making the title secure appears to he to serve heir to each of the parties who are previously called under the deed, and so take up any right that may have vested in any of them. (n) The first mode suggested in this answer seems to he the correct one. If A had left heirs of his hody, service would have been requisite in their case, and it seems to be equally necessary in the case of B {supra, Ans. 1049). If, however, it is thought necessary to fortify C's title by taking up any supposed right that may have been in B, it would still, it is thought, be aufiicient to make up one title as suggested, supra, notes {I) and (m), pp. 496 and 497. (o) See mpra, note (m), p. 433. Digitized by Microsoft® SERVICE OF HEIRS. 499 (2) If B had not been infeft on A's disposition, the instru- ment would narrate the disposition by A to B, and deduce, 1st, the disposition by B, and, 2d, C's service. 1054. By mortis causa settlement, which remained undeli- vered till the grantor's death. A, infeft, disponed to himself and the heirs of his body, whom failing, to B ; How would B mate up a title on the death of A's son, assuming (1) that A's son predeceased his father; or (2) survived, but died without making up a title ? A, being institute, B would, on either assumption, serve as heir of provision to A, the service not being special but general ; because although A was feudally vested when he granted the dis- position, the right to the unexecuted warrants contained in it is personal. (p) 1055. By mortis causa settlement, reserving the granter's liferent, lands are disponed to the heirs-male of A, and a series of substitutes. On the granter's death, How does B, the heir-male of A, make up his title ? B will expede service to A, as heir-male (r) in general, and then complete his title by infeftment or notarial instrument, Schedule B (s) or Schedule K ; or, it is thought, he may be feu- dally vested by direct registration of the settlement, the warrant of registration bearing to be " on behalf of B, the nearest and lawful heir-male (r) of A." In this case, however, service appa- rently is not indispensable, as it transmits no right, which is the only proper purpose of service, but is merely declaratory of B's character as heir-male of A, a fact which may be established by other evidence. Nor is it necessary, if such a service be expede, that it be " deduced " in the sasine or notarial instrument, a de- duction of titles being required only in the case of "heirs, assig- nees, and successors having right to the said precepts by general service, or by disposition and assignation, or by adjudication,"^ ' 1693, c. 35. {p) Rather because the settlement made a new destination, under which the right remained personal, (r) Of provision. (s) See note (n), p. 433. 2 i2 Digitized by Microsoft® 500 SERVrCE OF HEIRS. and not in tlie case of one who takes directly under the deed as disponee.^ But while it would be inconsistent with principle to deduce the service as the title by which B has right to the unre- corded conveyance, reference should be made to the service in the instrument, thus : — " At Edinburgh there was on behalf of B, nearest and lawful heir-male of A, conform to decree of general service," &c.(it) 1056. A dispones to B in liferent, and the heirs of his body in fee. On B's death. How does his heir make up a title ? (1) If infeftment has been taken in terms of the destination .to "B in liferent, and the heirs of his body," it is thought that ' Fogo, supra. See Opinions of Lords Medwyn and Ivory. [u) The first mode of completing the title here proposed is correct. The other, in all the different shapes in which it is put, seems to he erroneous and incompetent. (1) There can be no direct or de piano infeftment or equivalent therefor on a deed in "which the party to he infeft is not nominatim disponee, therefore a service is indispensable. (2) The object of a service is not to prove a fact, but to take up a right, and where not required for this purpose, is not necessary at all. The purpose of the service here is to take the estate out of the hmreditas jacens of A, in whom, under the settlement, there was a fiduciary fee. (3) It is necessary to the validity of the infeft- ment that the service be set forth, because it is only thereby that the heir has right to the precept ; and wherever a precept is used by any person in whose favour nominatim it is not granted, his title to it must be deduced in the sasine. (4) Any reference to the service, except as a connecting link, would be quite inept, and would not in any way add to the validity of the sasine. The particular parts of the opinions of Lords Medwyn and Ivory referred to are not mentioned and have not been found ; but Lord Medwyn, in his opinion, said (4 D., 1092) — " Say that the conveyance is to the disponer himself for his liferent use allenarly, and to his heirs-male in fee, whom failing, to B, with a precept for infefting the heirs-male, whom failing, B. If an heir-male come to exist, not being nominatim instituted, he behoved to serve to the disponer, and could not take infeftment without service." Again — "Where the conveyance is direct to the heirs of the disponer's body, whom failing, to B, without any mention of the disponer. If an heir come to exist, the right devolves upon him by survivance;" "but the heir, since he is not nominatim institute, must make up titles by service." If the disponer's heirs require service, so must A's, in the case put. Digitized by Microsoft® SEKVICE OF UEiaS. 501 the heir's title may be made up by service, as heir of provision in special to B, and infeftment on, or registration of, the decree.^ (2) If no infeftment has been taken on the conveyance, or if the infeftment has been limited to B in liferent, it is thought the title may be made up by service as heir of provision in general to B, and infeftment or notarial instrument (Titles Act), Schedule B (cc) or Schedule 'K.\y) > Duff's Fend. Conv., 446. '^ lb., 453. (a:) See supra, note [n), p. 433. {y) The method of completing the title proposed in this answer is be- lieved to be well-established in practice, and seems to rest on sound prin- ciple. 1. 'Where infeftment has been taken in the terms stated, The effect of this would be to vest B with a right of fee [supra, Ans. 794 ; Frog, M., 4262 ; Lillie, M., 4267 ; Cuthbertson, M., 4279), and in this case the title must be made up by service to him ; but assuming that B's right was a mere life- rent, still, as the fee cannot be in pendente, and as A is by the disposition and infeftment divested, though not in all respects so completely as if the disponee were entered with the superior, there is a constructive iiduciary fee in B which must be taken up by service to him. The only other course of proceeding would be by declaratory adjudication, as in the case of a trust where all the trustees have died and there is no destination to their heirs, but all such proceedings rest on the assumption that the fee is lying in the hcereditas Jacens of the party against whose heirs they are directed, though it is not transmissible to those heirs. 2. Where no infeftment has been taken, or in such terms as to limit B's right to a bare liferent. — In this case the pre- cept, or its equivalent, which could have been used by B for the purpose of giving infeftment in fee, is to that extent unexhausted. This follows ne- cessarily from the judgment in Houlditch, 9th June 1847, 9 D., 1204, where C having disponed to himself in liferent, for his liferent use only, and to the heirs-male of his marriage in fee ; but sasine having been given to him simply in liferent for his liferent use only, omitting all mention of the fee, it was held that this gave C a bare liferent and no fiduciary fee, though it was admitted that had the sasine been properly taken, it would have vested him with a fiduciary fee, to the exclusion of his creditors. As, therefore, in the case supposed there is a precept, or its equivalent, which A could have used for infeftment in fee, the right to it must be in his haereditas jacens, and capable of being taken up by general service to him and used by his heir. This point indeed was decided in Dundas, 23d January 1823, 2 S., 145, where D having obtained a Crown charter in favour of himself in life- rent, for his liferent use only, and the heirs-male of his body, born or to be born, in fee, took infeftment simply in favour of himself in liferent, for his liferent use only. Thereafter his heir expede a general service in the pro- per character to his father under the charter, and took infeftment on the un- Digitized by Microsoft® 502 SERVICE OF HEIRS. 1057. Under a feudalised destination to A and B, spouses, in conjunct liferent (or in conjunct fee and liferent, for B's liferent use allenarly), and to C, their son, in fee, with a reserved power to A to sell and dispone ; Must serve on the death of A ? (1) Where the destination is to A and B in conjunct liferent, and to C, their son, in fee, service by is unnecessary ; because, although the power to sell and dispone makes A virtual proprietor, it does not give him the feudal fee, and the nominal fee in C be- comes absolute on A's death. ^ (2) Where the destination is to A and B in conjunct fee and liferent, for B's liferent use allenarly, " the matrimonial fee in the husband, with resei-ved powers, becomes, by the reservation, a feu- dal fee in his person, which, on his death, must be taken up by special service" of G, as heir of provision.^(«) 1058. Under a destination by A to B in liferent allenarly, and to the heirs of his body in fee ; How is B's heir to make up a title ? (1) If infeftment has been expede in terms of the destination, it is thought that the heir may make up a title by service as heir of provision in special to B, and infeftment or registration of de- 1 M'Lean, 5 B. Sup., 444 ; Wilson, ' Duff's Feud. Couv., 446 ; Wilson, 14th Dec. 1819, F.C. ; Duff's Feud. sujim, 3 Eoss L. C, 716. Cony., 195; 3 Koss L. 0., 716. executed precept ; and the title so made up was sustained by the Court as valid. There is one case which may be here referred to, which seems to point to another mode of making up the title where the fii'st infeftment is one only in liferent ; Emslie, 13th Feb. 1850, 12 D., 724. Here A disponed " to and in favour of myself in liferent, and after my death to B, my son, in life- rent, but for his liferent use only, and to the heirs whatsomever of his body in fee." B was infeft " in liferent, for his liferent use only," without any mention of heirs. On his death, C, his son, made up his title as heir of provision to A, his grandfather, passing by his father; and though the validity of the title so made up was not the question involved in the case, and there was no discussion on it, its validity seems to have been admitted. It will be observed, however, that was heir under the old investiture, which might affect the question. (s) The destination here supposed would give the husband (A) a right of fee irrespective of the reserved powers. Digitized by Microsoft® SERVICE OF HEIRS. 503 cree. (2) If no infeftment has been taken on the conveyance, or if the infeftment has been limited to B in liferent allenarly, it is thought the heir's title may be made up by service as heir of provision in general to B, and infeftment or notarial instrument, Schedule B (a) or Schedule K, the fiduciary fee in B's person be- ing personal.' But the competency of service is not free from doubt.2(&) 1059. Explain the nature and purpose of a precept of dare constat, and a precept from Chancery ? (1) A precept of dare constat is a writ granted by a subject- superior to the heir of the last entered vassal,(o) under vphich, when completed by infeftment or registration, the heir obtains a feudal investiture without service. The deed proceeds on the narrative of the death of the ancestor, and of the superior's know- ledge that the person named in the instrument is nearest and law- ful heir to the deceased, and concludes with a precept of sasine, personal to the heir, for his infeftment in the lands. Although a precept of dare constat may proceed on the superior's private in- formation, he is entitled to require the heir to produce a service. (2) A precept from Chancery is a writ granted by the Crown to the heir of the last entered vassal in crown-holdings, and is similar in its nature to a precept of dare constat, but, unlike the latter, a precept from Chancery must be preceded by decree of service, either general or special. 1060. What are the provisions of the Titles to Land Act with respect to writs of dare constat f (1) Where, according to the former law and practice, precepts from Chancery, or precepts of dare constat, were in use to be granted, it is sufficient to grant a writ of dare constat in the form of Schedule Gr, and to record the writ with a warrant of registra- tion in the Register of Sasines. 1 Dundas, 23d Jan. 1823, 2 S., ' More's Notes, 211 ; 8 Koss L. C, 145 ; Duff's Feud. Conv.; U1. 671. (a) See supra, note («), p. 433. (6) See supra, note (y), p. 501. (c) It is not necessarily to the heir of the last entered vassal ; there may have been a series of intervening conveyances with base holdings, whicli ■will be evacuated by the confirmation operated by t'ue precept. Digitized by Microsoft® 504 SBKVICE OF HEIRS. (2) Such recorded writ is declared to have the same eifect as a precept from Chancery, or a precept of dare constat followed by infeftment. (3) Superiors are bound to grant such writs, provided that the heir shall produce a charter or other writ shewing the tenendas and reddendo of the lands in which the ancestor died vest, and shall pay or tender to the superior such duties and casualties as he may be entitled to demand ; and where the lands are held of the Crown or Prince, or where the heir is required by the superior, he shall also produce a decree of general or of special service, estab- lishing his right to succeed to the lands ; and where the lands are held of the Crown or Prince, the application for the wiit of dare constat shall be made in the same manner as when a precept from Chancery is applied for, and such writ shall be recorded in Chancery, as precepts are in use to be recorded. (4) All precepts from Chancery, and precepts and writs of dare constat, shall operate as a coniirmation of the whole deeds and instruments necessary to be confirmed in order to complete the investiture of the parties obtaining such precepts or writs.' 1061. How long were precepts of dare constat and Chancery precepts available as warrants for sasine as the law stood formerly ; and what is now the rule ? (1) Before the Lands Transference Act, precepts of dare con- stat fell by the death either of the granter or grantee ; but by that statute such precepts are declared to be eifectual notwith- standing the death of the granter, as a warrant for giving infeft- ment to the grantee at any time during the grantee's life.^ (2) Before the Titles Act, Chancery precepts not only fell by the grantee's death, but were void unless followed by a recorded sasine before the next term of Whitsunday or Martinmas.^ It appears to be doubtful whether such precepts, although compre- hended under the term " conveyance " by the interpretation clause of the Titles Act, may, under § 19, be validly recorded in the Eegister of Sasines at any time during the life of the grantee, as the effect of registration of a conveyance is the same " in all re- spects as if the conveyance so recorded had been followed by an ' 21 and 22 Vict., u. 76, §11- ° 8 and 9 Vict., c. 35, § 6. " 10 and 11 Vict., c. 48, § 15. Digitized by Microsoft® SERVICE OF HEIRS. 505 instrument of sasine, duly expede and recorded at the date of record- ing the said coTiveyance, according to the present law and practice ;" while a sasine on a Chancery precept, recorded after the next term, would he null. The expression " duly expede and recorded," on the other hand, might be held to warrant the construction that registration of the precept at any time during the grantee's life, is equivalent to infeftment validly expede. '(t^) 1062. Compare special services and precepts of dare constat, (1) as regards the description of the heir's character; and (2) as regards their effect in excluding challenge. (1) Service heing an actus legitimus, the character in which the heir by that form takes up the right, must he minutely and accurately described. On the other hand, a precept of dare constat does not require to set forth the precise character in which the heir claims an entry, it being sufficient that the instrument be substantially correct, and that the character which he truly bears be not altogether inconsistent with that set forth in the instni- ment.^(e) (2) A service prescribes, in twenty years, by the Act 1617, c. 13, and is afterwards unchallengeable even by the true heir;(/) but a precept of dare constat, not proceeding on a service, may be challenged at any time within forty years.^ 1063. What is the effect of a precept of dare constat to the heir in liferent, and his son in fee ? > 21 and 22 Vict., c. 76, ?? 1, 19, Ross L..C., 287 ; Duff's Feud. Conv., 86. 486. » Durham's Trs., M., 15118 ; 2 « Menzies Leot., 762 (805). {d) There seems to he no good ground for the doubt here expressed as to the time for recording Chancery precepts. The Act (| 19) expressly de- clares that "all conveyances," &c., " hereby authorised to be recorded in the Register of Sasines may be recorded at any time in the life of the party on whose behalf the same shall be presented for registration." The words " according to the present law and practice," which occur in § 1, do not seem to apply to the date of recording. (e) In correct practice, howoTer, the character should be accurately set forth. (/) This prescription is available only to the person served, and on his death the right of the true heir revives ; More's Notes, 270 ; FuUerton, 12th Feb. 1824, 2 S., 698. Minorities are deducted in computing the time. Digitized by Microsoft® 506 SERVICE OF HEIBS. The precept is null as to the son ; on the principle, that the superior, without being reinstated by resignation, can grant a re- newal of the investiture in favour of the heir, only in the terms in which it stood in the person of the former vassal.' 1064. A proprietor of burgage subjects dies infeft in part, having possessed the rest upon a personal title ; How will his heir's title be completed ? (1) To the subjects in which the ancestor was infeft the heir's title is completed by instrument of cognition and sasine under the hands of the town-clerk as notary, recorded in the Burgh Register of Sasines. Entry by cognition and sasine, which pro- ceeds without the intervention of an inquest, is given by one of the bailies of the burgh, who, as set forth in the instrument, simply cognosces and declares the party to be heir to the ancestor last infeft, and accordingly infefts him either by hasp and staple and delivery of earth and stone on the ground of the subjects, or by delivery of a pen in the council-chamber of the burgh.^ Entry by precept of dare constat by the bailies does not appear to be in- competent,^ but the form is unknown in practice, (g') (2) To the subjects which the ancestor possessed on a personal title, the heir's title is completed by general service, to take up the unexecuted proouratory of resignation, and by instrument of resignation and sasine. ''(/i) 1 Finlay, M., 14480 ; 2 Koss L. ' Lockhart, July 1662, 1 Br. Sup., C, 265. 482. 2 Duff's Feud. Couv., 514; Men- * Crs. of Cuming, M., 14446. zies Lect., 790 (838) ; Jur. St., 1, 562. [g) By tlie Titles to Land Act 1860, the heir of a proprietor of burgage subjects, wlio was infeft therein, may make up his title as follows, ¥iz. : — 1. By writ of dare constat from the magistrates of the burgh in the form of Schedule D. 2. By decree of special service by the Sheriff of Chancery, or by the sheriff of the county within which the burgh is situate, in the same manner as if the subjects were not held burgage. And such writ of dare constat or deeree of special service may be recorded in the appropriate Register of Sasines, and when so recorded, with warrant of registration thereon, has the same effect in all respects as if cognition and entry of such heir had taken place in due form, and an instrument of cognition and sasine in his favour had been duly expede and recorded ; § 7. (A) The heir having thus acquired right to the unexecuted procuratory, may either — Digitized by Microsoft® SERVICE OF HEIEH. 507 1065. A party died feudally vested in some lands, and hav- ing a personal right to others ; How can his heir enter so as to limit his responsibility to the value of the succession ? (1) The heir may enter by special service/ or precept of dare constat,^ to the lands in which his ancestor was feudally vested, either of which forms infers only a limited passive representation to the extent of the value of the property. (2) The heir may limit his responsibility to the value of the lands to which his ancestor had a personal right by general service, with a specification annexed, containing a particular description of the lands.^ (3) The form formerly in use for the purpose of limiting the heir's responsibility was service cum beneficio inventarii, i.e., with reference to an inventory of the amount and value of the lands lodged with the Sheriff-clerk of the county.* But this procedure has been practically superseded by the provisions of the Service of Heirs Act. 1066. How does an heir make up a public title, his ancestor having died publicly infeft in lands held of the Crown ? (1) By special or general service ; (2) precept from Chancery, or writ of clare constat ; and (3) infeftment on precept or registra- tion of precept or writ ; or (1) By special service ; (2) infeftment on or registration of decree ; and (3) crown charter or writ of confirmation. 1067. How does an heir make up a public title, his ancestor » 10 and 11 Vict, c. 47, ? 23. ^ 10 and 11 Vict., c. 47, § 25. " Farmer, M., 14003 ; Gordon, M., * Bell's Prin., 192G. 11166; Eosebery, 5 B. Sup., 926., 1 . Expede a notarial instrument in the form of Schedule G, setting forth the conTeyance and service, and record the conveyance, with warrant of registration thereon, and the notarial instrument, in the appropriate Eegister of Sasines ; or — 2. Where it is not desired to record the whole of the conveyance, the heir may expede a notarial instrument in the form of Schedule B, and re- cord such notarial instrument in the appropriate Eegister of Sasines ; Titles to Land Act 1860, Z 10. Digitized by Microsoft® 508 SERVICE OF HEIRS. having died publicly infeft in lands held of a subject- superior ? (1) By precept or writ of dare constat ; and (2) infeftment on precept, or registration of precept or writ ; or (1) By special service ; (2) infeftment on or registration of decree ; and (3) charter or writ of confirmation. 1068. How did an heir, before the Crown Charters Act came into effect, make up a public title to lands held of the Crown, his ancestor having died base infeft ? (1) By general service to take up the unexecuted procuratory of resignation in the disposition on which his ancestor was infeft ; (2) crown charter of resignation ; (3) infeftment on charter ; (4) precept of dare constat by the heir in favour of himself, as heir to his ancestor in the dominium utile ; (5) infeftment on precept ; and (6) consolidation by resignation ad remanentiam.^ 1069. How does the heir now make up his title ? In the same way as if the ancestor had been publicly infeft (see Ans. 1066) ; the precept from Chancery or writ of dare constat in the one case, or the charter or writ of confirmation in the other, operating as a confirmation of the whole writs necessary to be confirmed in order to complete the investiture. 1070. B served as heir in general to his father, A, whose title was an unrecorded conveyance ; How does B's heir, C, complete a public title to the lands ? The personal right under the unrecorded conveyance having been vested in B by his general service to A, C will take it up by general service to B, and complete his title either by infeftment or notarial instrument [i) and confirmation, or by resignation and infeftment or registration.^ 1071. B served as heir in special to A, his father, whose title was complete, and died without taking infeftment on ' Duif's Feud. Conv., 241. ^ See note 3, p. 343, (/). (t) And recording. (J) And note (n), p. 330. Digitized by Microsoft® SERVICE OF HEIRS. 509 or recording the decree of service ; How does B's heir, C, complete a puhlic title to the lands ? B's special service having fallen hy his death, C, passing over B, will (1) serve as heir in special to A; (2) take infeftment on or record the decree of service ;i and (3) obtain from the superior a charter or writ of confirmation ; or (1) Obtain from the superior a precept or writ of dare constat ; and (2) take infeftment on the precept, or record the precept or writ. 1072. A died infeft on a disposition a me, hut unconfirmed ; How does B, his heir, make up a title ? (1) B will expede general service to A, which will carry the disposition in his favour as a personal right ; (2) B may then enter with the superior in virtue of the unexecuted warrants contained in the disposition, either hy infeftment or notarial instrument and confirmation ■,[k) or resignation, and infeftment or registration ;(Z) or (1) B may serve as heir in special to A, take infeftment on or record the decree, and obtain a charter or writ of confirmation ; or (2) he may obtain a precept or writ of clare constat (either of which operates as a confirmation of A's infeftment), and take in- feftment on the precept, or record the precept or writ.^ > Lookhart, 19tli July 1864, 16 8,63; Ivory's Note, 493; Menzies D., 1108. Lect., 755 (798). See note 3, p. 343, » Douglas, M., 3008 ; Ersk., 3, {m) [k] Infeftment and confirmation would in this case te incompetent, the precept having been exhausted by the sasine in favour of A. See supra, note (A), p. 344. (I) A question might be raised under this form of completing the title, because by the Titles to Land Act 1858, § 9, a writ of resignation is de- clared to operate as a confirmation of all prior deeds and instruments, and if this were held to include A's sasine it would create a mid-impediment. Under the old system, this would have been avtiided by omitting A's sasine from the confirming clause, which, in the case supposed, must, even under the 10 and 11 Vict., c. 48, have enumerated all the deeds requiring con- firmation. See supra, note {g), p. 327. It seems pretty clear, however, that the qualifying words "necessary to be confirmed in order to complete the investiture of the party obtaining the writ " would exclude A's sasine from the confirmation, or the deeds intended to be confirmed might be enu- merated. (m) And note (n), p. 330. Digitized by Microsoft® 510 SERVICE OF HEIRS. 1073. A disponed de me to B, who was infeft, B disponed a me vel de me to G, who was infeft ; C having died without obtaining confirmation of his infeftment ; How would his heir D have made up his title before the Titles Act came into effect, and what would be the procedure under that statute ? 1. Before the Titles Act, — (1) By obtaining from A a charter of confirmation of C's in- feftment, combined with a precept of dare constat ; and (2) infeft- ment on the combined charter and precept ; or (1) By special service ; (2) infeftment on decree ; and (3) charter of confirmation by A. 2. Under the Titles Act,— (1) By obtaining from A a writ of dare constat, and (2) regis- tration of writ ; or (1) by special service; (2)' registration of decree; and (3) writ of confirmation by A. 1074. A, infeft, dispones de me to his son and heir, B, who takes infeftment ; How does B make up a title on A's death ? He makes up a title to the mid-superiority by either of the methods specified in Ans. 1067. Having completed his title to the mid-superiority, he will consolidate the two fees by granting in favour of himself, and recording in the Eegister of Sasines, a procuratory of resignation ad remanentiam. 1075. A dispones de me to B, who takes infeftment ; A suc- ceeds as heir to B ; How does he make up his title ? By precept or writ of dare constat by A in favour of himself, and infeftment on precept, or registration of precept or writ. He may then consolidate by resignation ad remanentiam. 1076. A disponed lands de me to B, who took infeftment ; and he afterwards disponed the superiority of the lands a me to B, who completed a public title to it by resignation and infeftment ; but he died without con- solidating the two fees ; How is his heir, C, to make up his title ? (1) C will serve as heir in special to B, in the superiority, Digitized by Microsoft® SERVICE OF HEIRS. 511 and take infeftment on or record the decree; (2) lie will then grant, in his own favour, a writ of dare constat, as heir in the dominium utile, and record it in the register of Sasines ; and (3) consolidate by resignation ad remajientiam. 1077. A, whose title was complete, disponed lands de me to B, who took infeftment and afterwards re-disponed to A by disposition, containing a procuratory of resigna- tion ad remanentiam; A died without having com- pleted the reconveyance ; How does his heir, C, make up a title ? (1) By special service, as heir to A in the superiority, and re- gistration and confirmation, or by writ of clare constat and regis- tration ; and (2) general service as heir to A in the property, and notarial instrument (Titles Act), Schedule B,(to) which will con- solidate the two fees.^ The special and the general service may be combined in one decree. 1078. A, publicly infeft, disponed to B, by disposition con- taining a me vel de me holding. B took infeftment but died without entering with the superior ; his heir, C, obtained, and was infeft, on a precept of clare con- stat, which did not contain a confirmation. On C's death, How is his heir, D, to make up his title ? If the precept of clare constat to C was granted before the Titles Act came into effect, C's title was null ; in respect that the precept in his favour did not contain a confirmation of B's infeft- ment. D will, therefore, pass over C, as if he had possessed on apparency, and enter by special service, or precept or writ of clai-e constat, as heir of B. (2) If the precept of clare constat in favour of C was granted after the Titles Act came into operation, it had the effect of a confirmation, and D will therefore enter as heir to C, either by special service, or precept or writ of clare constat. 1079. A, infeft, dispones to B, with procuratory and precept ; B enters with the superior by resignation and infeft- I 21 and 22 Vict., c. 76, ? 4. (m) See supra, nota (n), p. 433. Digitized by Microsoft® 512 SERVICE OF HEIRS. ment. On his death, his heir, C, discovers an error in B's infeftment, the effect of which is doubtful; How should he make up his title ? (1) Expede service as heir in general to B ; (2) obtain a new charter of resignation from the superior, proceeding on the pro- curatory in the disposition by A, the charter having combined with it a precept of dare coiistat ; and (3) take infeftment on the combined charter and precept. In this way, C will have an alter- native title resting (1) on the precept of dare constat and infeft- ment, if the infeftment on B's charter is valid; or (2) on the charter of resignation and infeftment if B's infeftment is inept. '(ji) An alternative title may likewise be completed as follows : — (1) By general and special service of C to B, which may be compre- hended in one decree. (2) Infeftment on or registration of the decree; (3) charter of confirmation confirming the infeftment or registered decree, combined with a resignation in virtue of the procuratory in A's disposition, transmitted by the general service ; and (4) infeftment on the charter. (o) ' Duffs Feud. Conv., 488. [n) The principle of what is here proposed, which is just makiiig up double titles, is correct ; but whether such a deed as a charter of resigua- tion, combined with a precept of dare constat, was ever known in practice may be doubted. It would be very anomalous, because, besides proceeding on the assumption (1) that A was resigning, and (2) that B died last vest and seized in the lands, it would require to contain two precepts, one appro- priate to the resignation, and the other to the precept of dare constat. The better way would be to make up the two titles separately. (o) Here also what is proposed is correct in principle, but the proposed deed by the superior would involve the anomaly of assuming (in its confirm- ing clause) that the subjects had been vested in B, and (in its disponing clause) that they were resigned by A. If a double title were to be made up, it should be done separately. In this view a third course might be fol- lowed — (1) C, by general service to B, might take up the (supposed) open charter in his favour, and complete a title thereon by infeftment or notarial instrument and registration, which would (on the supposition) be perfect ; and (2) he might procure and record, with warrant, a precept or writ of dare constat from the superior, which, if B's infeftment was good, wotild form a valid title. Digitized by Microsoft® ENTRY WITH THE SUPERIOR. 513 IX. ENTRY WITH THE SUPERIOR. [See Ans. 551, 552, 590, 595, 597, and 704.) 1080. Has a liferenter of the superiority the power of enter- ing vassals ? (1) A liferenter by constitution cannot grant a valid entry ; because the superior must be infeft in the fee.' (2) A liferenter by reservation has power, in virtue of his original infeftment in the fee, to enter vassals. ^ (3) Where special power to grant entries is conferred on a liferenter by constitution, entries by him are valid. ^ 1081. A was infeft and entered ; after A's death, B, his heir, was infeft on a precept of dare co-iistat by a life- renter by constitution of the superiority, whose title as such appeared ex facie of the records ; B executed a trust-disposition and settlement to trustees, excluding his heir-at-law ; after B's death, his trustees recorded the trust-disposition and settlement in the Eegister of Sasines, and his heir, C, served as heir in special to A, and recorded the decree of service ; Who was vested with the property ? The property was vested in C. The precept of dare constat in favour of B was inept, being granted by a liferenter by consti- tution, and the title made up by his trustees consequently was invalid.'' 1082. A was infeft on a conveyance of the superiority in 1840; B, the heir of the last entered vassal in the property, entered with A by precept of dare constat and infeftment, in 1845 ; C established a preferable title to the superiority, and reduced A's infeftment, in 1850 ; B executed a trust-conveyance excluding his heir-at-law. On his death, in 1855, B's trustees 1 Henderson, 19t]i Feb. 1836, 14 16 S., 1332 ; aff. 23d Sep. 1841 ; 2 S., 540. Bob. App., 446. ' Bell's Prin., 1055. * Henderson, supra. ' Gibson-Craig, 10th July 1838, 2 K Digitized by Microsoft® 514 ' ENTRY WITH THE SUPEHIOE. took infeftment on the trust-conveyance ; and his son, D, entered with C by charter of novodamus and precept of dare constat, and infeftment, as heir to the immediate ancestor of B ; Who has the preferable title to the property ? The trustees of B, it is thought, have the preferable title ; the reason being, that as A appeared ex facie of the records to be superior at the date of B's entry with him, the entry was vaHd, although A's title to the superiority was subsequently re- duced. ^(^) 1083. What is the composition payable by a singular suc- cessor for an entry, (1) where he is proprietor of the lands; (2) where the lands have been sub-feued at their fair value at the time, and the sub-vassals have erected bouses which yield a large amount of rents ; and (3) where the lands have been suh-feued at an undervalue in consideration of a grassum ? (1) Where the singular successor is proprietor of the lands, the composition is a year's rent of the subjects, as they may be set at the date of the entry, under deduction, 1st, of the feu-duty and annual burdens imposed with the superior's consent ; 2d, of a reasonable allowance for annual repairs ; 3d, of public burdens ; and, ith, one-fifth for teind, whether the teinds have been valued or not, if the superior is not proprietor of them.^ (2) Where the lands have been sub-feued at their fair value at the time, the composition is a year's sub-feu-duty, and not a year's rent.^ It is still an open question whether the superior is entitled ^ Gibson-Craig, supra; Innes, 20th " Cockburn Koss, 6tli June 1815, Nov. 1844, 7 D., 141 ; Meuzies Leot., F.C. ; aff. 24th July 1820, 2 Bligh's 769 (81.3). App., 707. « Aitchison, M., 15060 ; 2 Eoss L. C, 183. (r) ( p) This answer is believed to be correct ; but it will be observed that in Gibson-Craig, cited, the entry was given by the party who was the real superior, though there was an error in his title ; and in Innes, cited, the vassal seems to have previously recognised as superior the party to whose title he was objecting. (r) See also Anderson, 30th Nov. 1824, 3 S., 334. Digitized by Microsoft® ENTRY WITH THE SUPERIOR, 515 to demand the casualties derived by the vassal, during the year of his own entry, from entries to sub-vassals.' (3) Where the lands have been sub-feued for an inadequate feu-duty, in consideration of a grassum, the composition is a year's sub-feu-duty, with a year's legal interest of the grassum.^ 1084. A party purchased a long lease of lands at a rent below the annual value ; and he afterwards purchased the lands themselves ; Whether is the composition pay- able by him, for an entry, the rent under the lease or the actual value of the lands at the time ? The composition payable is the actual value of the lands at the time, and not merely the rent under the lease ; because the tenant having acquired the full right of property in the lands, the principle of confusio operates at least a complete temporary suspen- sion of the obligation for rent, and of the whole obligations hinc inde under the contract of lease.' 1085. A, under a reservation of his liferent, conveyed an estate to his heir, B, and another estate to trustees for be- hoof of B, and both conveyances were recorded in the Eegister of Sasines. On A's death, B and the trus- tees required the superior to give them respectively an entry by confirmation ; Whether do they pay relief or composition ? B pays relief merely ;* but the trustees, althougli holding for behoof of the heir, must enter as singular successors, and pay composition.* 1086. How may a disponee, infeft on a disposition a me vel de me, avoid payment of a composition on the death of the disponer ? By getting the heir of the disponer (though he cannot be compelled) to complete a title to the mid-superiority created by the infeftment of the disponee. The heir is entitled to an entry ' Campbell, 28th June 1832, 10 * Per Lord Covington in Macken- S., 734. zie, M., App. " Superior and Vas- 2 Campbell, supra. sal," No. 2 ; 2 Ross L. C, 404. ^ Lord Blantyre, 1st July 1858, ^ Grindlay, 18tli Jan. 1810, F.C. 20 D., 1188. 2 K 2 Digitized by Microsoft® 516 ENTRY WITH THE SUPEBIOK. on payment of relief, and, the fee thus being full, the superior is precluded from demanding composition during the heir's life.'(s) 1087. A, infeft and entered, disponed to B, who infefts, and dispones to 0, who infefts, and dispones to D, who likewise takes infeftment, and applies to the superior, after the death of A, B, and C, for a writ of confirma- tion ; What does he pay for an entry ? He pays only a single composition ; and is not bound to pay up the compositions which might have been exigible from his authors.^ 1088. A having purchased an estate, executed an entail in favour of himself, whom failing, to B, a stranger in blood, and a series of substitutes. A completed titles under the entail by infeftment and confirmation, hav- ing paid the superior a composition of a year's rent for an entry ; On what terms is B, after A's death, entitled to an entry under the entail ? B, although a stranger in blood to A, is entitled to an entry under the entail as heir of the investiture, on payment of relief merely ; the principle being, that " where the superior has already received, upon the change of investiture, the composition of a year's rent at the entry of the first member of entail, not being heir of the previous investiture, he is bound throughout to deal with the entail as the existing investiture of the estate ; and to carry out and give effect to the destination therein contained, as the rule of that investiture in regard to succession, and, conse- quently, to receive the whole series of substitute heirs, without distinction of one from another, as the line of succession thus fixed respectively opens to each in the express character, and is 1 Pigott, 9th Deo. 1829, 8 S., 213 ; - Bell's Com., ii, 741. Bell'3 Prin., 723 ; Jur. St., i, 401 ; Menzies Leot., 770 (814). (a) A part of lands having been conveyed, hurdened with the feu-duty and casualties payable for the "whole ; held that " casualties " included com- positions payable on the entry of singular successors, and that the proprietor of the part was bound to pay them, as well as the feu-duty of the whole lands ; Edinburgh Gas Light Co., 5th July 1843, 5 D., 1325. Digitized by Microsoft® ENTKY WITH THE SUPEKIOR. 517 entitled to all the privileges and rights of heirs of the investi- ture, "'(i) 1089. A executed an entail in favour of the heirs of his body, whom failing, to B, a stranger in blood, and a series of substitutes ; On what terms is A's heir en- titled to an entry under the entail ? A's heir is entitled as heir of the former investiture, on pay- ment of relief merely, to a charter containing the whole destina- tion under the entail ; but the superior is entitled to insert a re- servation of his right to claim a year's rent upon the entry of the first substitute under the new investiture who shall not be the then existing heir under the former investiture. ^ 1090. A feu-charter was granted to A, and his heirs and assignees ; A, without feudalising the charter, as- signed it to B, a stranger, who recorded it in the Ee- gister of Sasines ; On what terms is B's heir entitled to an entry ? B's heir is entitled to an entry on payment of relief only ; the grantee of a feu-charter being entitled to possess without taking infeftment, and to assign the personal right. ^(m) 1091. Is an heir entering by resignation in virtue of his an- cestor's procuratory, or a singular successor, entitled to demand from a superior an assignable charter ? 1 StirUng, 14tli Feb. 1842, 4 D., 2 ; M. of Hastings, 27th May 1859, 684 ; Opinion of Lord Ivory, aff. 4th 21 D., 871. Sept. 1844, 3 Bell's App., 128. " Stewart, M., 15027 ; 2 Ross L. 2 Mackenzie, 4th July 1777, M. C, 161. App., " Superior and Vassal," No. (i) In the same way, where A, who stood base infeft as purchaser from a Crown vassal, conveyed the property to trustees, to he entailed on B and a series of heirs, and B, who was the heir-at-law, entered, paying a year's rent, and conveyed to the trustees, who thereupon executed an entail in favour of B, &c. ; held that B, on making up a title as institute, and enter- ing, was not liable in a second composition ; Adv.-General, 30th Jan. 1854, 17 D., 21. (m) Unless assignation is prohibited by the charter. Digitized by Microsoft® 518 ENTBY WITH THE SUPEEIOK. An lieir paying relief is not entitled to an assignable charter ;^ but a singular successor, or an heir, on payment of composition, is entitled to demand a charter assignable, before infeftment, to any person he pleases. ^(a;) 1092. A, a singular successor, on payment of composition, having obtained from the superior a charter of resig- nation, assigned it to a stranger, B, and the heirs of his body. B took infeftment on the charter, and died ; On what terms is his heir entitled to an entry ? B's heir is entitled to an entry on payment of relief.^ 1093. Is a superior bound to enter a corporation as vassal? State the reason. No ; the reason being that, as a corporation never dies, by the entry of it the casualty of relief would be permanently ex- cluded.*(2/). 1094. A superior granted an entry to " A, present treasurer, and to his successors in office for the time being trea- surer of the incorporation, for the use and behoof thereof;'' and the corporation afterwards obtained de- cree of declarator and adjudication for vesting the lands in it in its corporate name ; Is the superior bound to grant a charter of adjudication to the cor- poration, without payment of a composition ? Yes ; it having been held that, as the superior had given an 1 Magistrates of Musselburgh, M., * Hill, 17tli Jan. 1815, F.C. ; 2 15038 ; 2 Ross L. C, 166. Eoss L. C, 320. 'i D. of Hamilton, 8th March 1839, = Campbell, 28th June 1843, 5 D., 1 D., 689 ; 2 Eoss L. C, 391. 1273. ° D. of Hamilton, supra. [x) But it may he, and very often is, a condition of the original feu-right that the superior shall not be bound to grant assignable charters, in which case they cannot be demanded. (y) Sometimes a corporation has contrived to get itself entered by taking an assignation to an open charter, and infefting thereon. What the effect of this is, in regard to the superior's rights, has not been determined, but it is rather thought that he could successfully challenge it as an illegal en- croachment on his rights, and an attempt to get indirectly what he is not bound directly to grant. See as to entry and composition in case of lau4s held by trustees for purposes of religion or education, supra, note [g), p. 263. Digitized by Microsoft® ENTBY WITH THE SUPERIOR. 519 entry to the office-bearers of the corporation for its use and be- hoof, it was his intention to give an entry to the corporation/(«) 1096. What provision ought a charter to a corporation, or to a body of trustees, to contain in order to secure the superior's rights ? (1) A charter to a corporation ought to contain a provision that a composition of a year's rent, or a certain sum, should be paid every twentieth or twenty-iifth year. (2) A charter to trustees ought to contain a provision and de- claration that notwithstanding the deed is granted in favour of the trustees, and the survivors of them, yet upon the death of one of the trustees named, the subjects should be held to fall in non- entry, to the same effect as if the same had been disjaoned to the trustee named individually, and as if the whole of the trustees were dead.^(a) 1096. A reservation of mines and minerals in the superior's favour, not contained in the original charter, was in- serted in successive charters by progress taken by the vassals for a period extending back for sixty years ; but there was no act of possession of the minerals on the part of the superior ; Has the superior right to the minerals ? 1 Jur. St., i, 410. (s) See other oases where in special circumstances corporations were found entitled to demand entries ; Campbell, 28th June 1843, 5 D., 1273 ; Gardner, 23d Jan. 1845, 7 D., 286. In this last case it was found that a composition as singular successor was not due. (a) Or it might be stipulated that a composition should be payable to the superior on the death of each of the trustees successively, as the form of a proper entry with the superior in such a case is not very obvious. There being neither resignation nor conveyance, the only mode seems to be a new writ of confirmation in favour of the surviving trustees where the prior entry has been in that form. Where it has been by resignation, there seems to be no appropriate form by which the entry can be renewed. Whether the course in the answer or that here suggested be adopted, there should be a declaration that the condition shall subsist only so long as the trustees con- tinue to hold the property. Delivery of charter by progress is equivalent to a discharge of all by- gone duties and casualties, unless the charter contains an express reserva- tion of them ; Tailors of Glasgow, 11th June 1851, 13 D., 1073. Digitized by Microsoft® 520 ENTRY WITH THE SUPERIOR. No ; because the reservation was not contained in the original charter ; agreeably to which, charters by progress are regulated and interpreted.^(6) 1097. A, who held an unrecorded conveyance in favour of himself and his heirs, which did not contain a pro- curatory of resignation, obtained from the superior a charter of confirmation and novodamus, in favour of himself in liferent, and B, his son, in fee, on which in- feftment followed. The creditors of B having pro- ceeded to attach the fee by adjudication, A took in- feftment on the conveyance ; Were B's creditors ex- cluded ? Yes ; because the superior not having been reinvested by re- signation, the charter of confirmation and novodamus granted by him was null, and could confer no right on B.^(c) 1098. What was the method in use before the Lands Trans- ference Act, of enforcing an entry where the supe- rior's title was complete ; and where it was incom- plete ? (1) Where the superior's title was complete, — the vassal, on production of a retour or a procuratory of resignation, was en- titled to obtain letters of horning, to charge the superior to enter him on an inducioe of fifteen days ; and after expiration of the charge, and on tendering the duties and casualties, the vassal might either proceed against the superior by caption, or resort for 1 Graham, 27th Jan. 1842, 4 D., ^ GrieTe, M., 3022 ; 2 Koss L. C, 482. 152.(c) (6) See also Threipland and Others (M'Donald's Trs.), 30th May 1848, 10 D., 1062 and 1079 ; Smith, 8th June 1860, 22 D., 1158. But where the vassal has allowed the reservation to be inserted in his titles, he may not be entitled to challenge it ; Bain, 19th May 1865, 3 M'P., 821. On the other hand, where the exception or reservation was in the ori- ginal feu-right, the omission of it for upwards of seventy years in charters by progress is not a competent mode of conveying the minerals to the vassal, and the superior is entitled, in giving a new entry, to insert a reservation in terms of the original right ; Hutton, 11th Nov. 1863, 2 M'P., 79. (c) In Grieve, here referred to, the judgment did not proceed on the want of a procuratory ; the disposition contained one. Digitized by Microsoft® ENTRY WITH THE SUPEBIOE. 521 an entry to the successive over-superiors, charging them in their order, until he reached the Grown, who refuses no vassal. (2) Where the superior's title was incomplete, — the vassal was entitled to charge the superior, under the Act 1474, c. 67, to enter with his superior within forty days ; under certifioation that, if he fail, he should ''tyne his superiority" during the vassal's lifetime. (d) On expiration of the charge, the vassal applied to the next over-superior for an entry ; but before obtaining a charter, it was necessary to procure decree of declarator of tinsel of supe- riority against the recusant superior.^ 1099. What is the method introduced by the Lands Trans- ference Act, of enforcing an entry where the superior's title is complete ; and where it is not complete ? (1) Where the superior's title is complete — A party infeft upon a conveyance, containing an obligation to infeft a me vel-de me by the last entered vassal, or by one whose own title is capable of being made public by confirmation ; or upon a' decree of special service ; or upon a decree of adjudication or of sale, is entitled, on production in the Bill Chamber of his sa- sine, along with its warrant, to obtain letters of horning to charge the superior to grant an entry by confirmation, in the same way as the like diligence is used for compelling entry by resignation ; the charger being bound to pay or tender to the superior the duties and casualties to which he is entitled ; and it being lawful to the superior to show cause, in a suspension of the charge, why he ought not to be compelled to grant an entry. ^ (2) Where the superior's title is incomplete — - 1. Where the annual reddendo attached to the superiority does not exceed fi.ve pounds sterling in value or amount, the vassal (e) presents (/) an application to the Lord Ordinary on the 1 Ersk., 2, 7, 7 ; 3, 8, 80 ; Bell's " 10 and 11 Vict., c. 48, § 6. Prin., 735, 792 ; Menzies Lect., 775 (820). (d) The words of the Act are, "tyne the tennent for his lifetime, and assith the partie of his coastes and skaithes that sail be susteined throw him in default of his entrie.'' The superior did not forfeit the fixed yearly duties ; Ersk., 3, 8, 80. (e) More properly the heir or disponee of, or adjudger from, the last vassal, &c. (/) The party may in his option adopt the course of procedure ; infra, 2. Digitized by Microsoft® •^22 ENTEY WITH THE SUPEBIOR. Bills, for an order on the superior within thirty days (or sixty if he is in Orkney or Shetland or furth of Scotland), to procure him- self entered and infeft, and enter the vassal on payment of the duties and casualties, or to shew cause for delaying or refusing to do so ; with certification, that if he fail he shall forfeit all right to the superiority. If the order is not complied with,(gr) the peti- tioner is entitled, after the expiration of the days of intimation, to obtain a deliverance on the petition, finding and declaring that the respondent has forfeited all right to the superiority, and that the petitioner and his heirs are entitled to hold the land in all time coming of the next over-superior, by the same tenure, and for the same reddendo, as under the forfeited superiority. The decree, when extracted and recorded in the appropriate Kegister of Sasines, absolutely extinguishes the right of superiority, and enables the petitioner to apply to the next over-superior, as his immediate superior, for a charter with the same tenendas and reddendo as are contained in the titles of the forfeited superiority.' This procedure extinguishes the mid-superiority to the same effect as if it had been conveyed to the petitioner and consolidated with the property by resignation ad remanentiam.^ 2. Where' the annual reddendo exceeds five pounds, the pro- cedure is similar, but the certification in the order is, that the superior shall forfeit, not the superiority itself, but the duties and casualties payable on the entry of the petitioner, and that he shall be entitled to retain the feu -duties until fully paid and in- demnified for all the expenses of the petition, and procedure thereon, and of completing his title, in terms of the Act. After expiration of the mducice,(t) judgment is pronounced to the above effect, and granting warrant to the petitioner for obtaining an entry with the Crown, or, in his option, with the mediate over- superior, as acting in the vice of the recusant superior ; and also granting warrant for letters of horning to charge the mediate over-superior to give the petitioner such an entry. But the lands contained in the charter to be so obtained are to be held of the Crown, or the mediate over-superior, as in the vice of the unen- > 10 and 11 Vict., c. 48, ? 8.{h) ^ lb., § 12. (ff) Or reasonaWe cause shown for the delay or refusal to comply with the order. (A) And Schedule E, Ncs. 1, 2, and 8. («■) Unless reasonable cause for the delay or refusal be shown. Digitized by Microsoft® ENTRY WITH THE SUPERIOR. 523 tered immediate superior, only so long as he and his successors shall remain unentered, and thereafter until a new entry in favour of the vassal or his successors shall hecome requisite. The pro- cedure above detailed is available to the vassal, although the an- nual reddendo should be under five pounds. '(Z) 1100. What is the mode of relinquishing superiorities intro- duced by the Titles to Land Act ? (1) The superior, v^hether entered or not, grants, in favour of the vassal, a deed of relinquishment. Schedule N, No. 1, abso- lutely relinquishing and renouncing his right of superiority of the lands in favour of the vassal, and declaring that they shall no longer be held of the grantor as superior, but shall be held of his immediate lawful superior in all time to come. (2) The deed of relinquishment is accepted by the vassal by an acceptance vnritten on the deed, in terms of Schedule N, No. 2. (3) A writ of investiture, written on the deed of relinquish- ment, is granted by the over-superior, in the form of Schedule N, No. 3, by which he accepts and receives the vassal, and his heirs and successors, in place of the granter of the deed of relinquish- ment and his heirs and successors in virtue of the deed of relin- quishment and acceptance thereof, to be holden by the grantee by the tenendas, and for the reddendo contained in the titles of the relinquished superiority. (4) The deed of relinquishment, with the acceptance and writ of investiture written thereon, is recorded in the appropriate Ke- gister of Sasines.^ 1 10 and 11 Vict., c. 48, H 9, " 21 and 22 Vict., o. 76, §§ 23, W.{k) 24. (4) And Schedule F. (I) Where a petition is presented against a superior, not having com- pleted his feudal title, he may in every case, hefore the interim decree is pronounced, lodge a minute relinquishing the right of superiority ; and if such minute be lodged, and the petitioner sign an acceptance thereof, the Lord Ordinary interpones his authority thereto, and declares the right of superiority to be extinguished to the effect of making the petitioner hold the lands immediately of and under the superior of the relinquished superiority in permanency, which entitles the petitioner to apply to him for an entry ; but the petitioner is not bound to accept of the relinquishment ; 10 and 1 1 Vict., c. 48, § 11, and Schedule G. The form of charter is contained in Schedule I. Digitized by Microsoft® 524 ENTRY WITH THE SUPEEIOli. 1101. What is the eifect of such a relinquishment? (1) The superiority relinquished is extinguished, the investi- ture completed upon the relinquishment being as eifeotual as if the granter of the deed of relinquishment had completed his title to the superiority, and had thereafter conveyed the same to the vassal; and the latter, after having completed his titles under the over- superior, had resigned ad remanentiam in his own hands. (2) The investiture so completed does not in any respect ex- tend the rights or interests of the over-superior, and he is entitled to no more than the duties and casualties, taxed or untaxed, to which he would have been entitled if the granter of the deed of relinquishment had remained his vassal. (3) Such relinquishment by a superior, who shall not have completed his title to the superiority relinquished, does not infer a passive representation on his part, nor any liability for the debts of the person last infeft therein, beyond the price or consideration, if any, which he may have received for the relinquishment.^ 1102. "Where the relinquished superiority is part of an en- tailed estate, how is the price received for the relin- quishment to be applied ? The price received for the relinquishment is to be consigned in a chartered bank, subject to the orders of the Court, and is to be applied to such purposes as purchase-money or compensation coming to parties having limited interests, is made applicable under the Lands Clauses Consolidation Act, or the Entail Amend- ment Act, or the Entail Amendment Extension Act, or any pri- vate Act of Parliament authorising the sale of the entailed estate.^ 1103. May the price of relinquished superiorities of entailed lands be charged on the entailed estate ? The price of such relinquished superiorities, with the relative expenses, may be charged on the entailed estate by bond and dis- position in security granted by the vassal obtaining the relinquish- ment, (1) with consent of those heirs of entail whose consent would be required to the execution of an instrument of disentail of the lands ; or (2) under authority of a judicial warrant or de- cree of the Court pronounced on a summary petition by the heir ' 21 and 22 Vict., u. 76, gj 23, 24. ^ /*., § 25. Digitized by Microsoft® ENTRY WITH THE SUPERIOR. 525 of entail in possession, the proceedings under the petition being the same as under a petition to charge the estate with provisions to younger children as authorised by the Lands Clauses Act and the Entail Amendment Act, excepting that in this case newspaper advertisement is unnecessary.^ X. INHIBITION. 1104. What is an inhibition ? Inhibition is a personal prohibition, which proceeds on a writ passing under the Signet, forbidding a debtor from alienating his heritable property, and from contracting debts, by means of which it may be attached, to the prejudice of the creditor using the dili- gence, and interdicting the public from receiving from the debtor conveyances of such property.^ 1105. Upon what grounds maj' inhibition proceed? Inhibition may proceed, (1) on a liquid obligation, such as a bond, bill, or decree ; or (2) upon an executed summons ;(m) or (3) upon a debt not yet payable, when the debtor is vergens ad in- 1106. How does a creditor proceed in using inhibition against his debtor ? (1) The bond or other warrant is produced in the Bill Cham- ber, with a bill for letters of inhibition, which is passed as a matter of course ; the deliverance being "fiat ut petitur, because the Lords have seen the registered bond," or other warrant upon which the diligence is to proceed. 1 21 and 22 Vict., 0. 76, § 26. ' Ersk, 2, 11, 3; Bell's Prin., ^Ersk., 2, 11, 2; Bell's Prin., 2307. 2306. (m) A defender also may use inhibition on a depending action when an interlocutor has been pronounced by the Lord Ordinary or the Court finding him entitled to expenses. If an action has been more than a year and a day in dependence, it is necessary to exhibit to the Clerli: of the Bills an interlocutor pronounced within the year previous, to show that the process is not asleep. Digitized by Microsoft® 526 INHIBITION. (2) The letters of iBliibition are then gigneted, the bill being left in the Signet OfSoe, as the warrant of the diligence. (3) The inhibition is executed against the debtor personally, or at his dwelling-place. (4) It is executed against the lieges by publication at the market-cross of the head burgh of the jurisdiction of the debtor's domicile. (5) Within forty days of the date of publication the letters of inhibition, with the executions, are registered either in the Gene- ral Eegister of Inhibitions, or in the Particular Eegister of the counties, both of the debtor's domicile and where the lands lie.^ 1107. How is an inhibition executed when the debtor is furth of Scotland ? The inhibition is executed against the debtor edictally, at the ofEce of the keeper of Ediotal Citations ; and against the lieges at the market-cross of Edinburgh, and pier and shore of Leith.^ 1108. A debtor was domiciled, and possessed lands, in the county of Lanark ; an inhibition against him was duly executed and published on 1st March, and registered in the Particular Eegister for the county of Lanark on 1st April. The debtor acquired additional lands in the county of Lanark, and also in the county of Stirling, on 20th March ; Did the inhibition attach to these additional lands ? (1) The inhibition being duly executed and published, and timeously registered, attaches to the additional lands acquired by the debtor situated in the county of Lanark, as the diligence affects acquirenda,^ and when registered within forty days is effec- tual from the date of publication.* (2) The lands situated in the county of Stirling are not affected by the inhibition, as it was not registered in the General Eegister nor in the Particular Eegister for that county. 1109. After an inhibition had been duly executed and re- corded, the debtor inhibited granted a discharge of an ' Ersk., 2, 11, 4; Menzies Leot., ' Ersk.. 2, 11, 10. 8'20 (871). * Ersk., 2, 11, 6. '^ Menzies Ltjct., 820 (871). Digitized by Microsoft® INHIBITION. 527 heritable security held by him, and also disposition in implement of missives of sale entered into ante- rior to the date of the inhibition ; Was the discharge or the disposition affected by the inhibition ? Neither the discharge (n) (unless the debtor in the security had received notarial intimation of the inhibition)^ nor the dispo- sition (o) is affected by the diligence ; because inhibition strikes only against voluntary deeds, and not against such as the person inhibited was under a previous obligation to grant.^ XI. ADJUDICATION FOE DEBT. 1110. What is the nature and effect of adjudication for debt? Adjudication is a diligence, or an action of execution (founded on a liquid document of debt), the object of which is to transfer to the creditor the heritable property of his debtor, in satisfaction of his debt, the right acquired by the creditor being redeemable by the debtor within a certain time but convertible from a redeem- able security into an absolute right of property after the expiry of the term of redemption.^ 1111. What were the leading conclusions of the summons of 1 A. S., 19tli Feb. 1680. ' Bell's Prin., 2299. ' Ersk., 2, 11, 11 and 12 ; Menzies Lect., 821 (872). (n) On this point Professor Bell says (Com., ii, 143) — " It is a settled rule that inhibition does not affect " " heritable bonds where no infeftment has been taken. Where, however, infeftment has once been taken, the debt is held no longer to be a mere nomen debiti, but a. feudal estate, the convey- ance of which may be barred by inhibition ;" and refers to Low, 6th Dec. 1814, F.O. See also Ivory's note to Ersk., 2, 11, 11. (o) Though the inhibition does not directly strike at the disposition, it may have effect in another way, because the purchaser is not bound to pay the price until the record is purged ; Home, 28th May 1824, 3 S., 81. See, however, Lord Justice-Clerk Hope's observations on this case in Living- stone, 27th July 1842, 5 D., 1. Held that title-deeds deposited, after inhibition, with an agent may be hypothecated, and that, if they are necessary for the sale of the estate, he is entitled to be ranked on the price for his business account preferably to the inhibiting creditor ; Menzies, 14th Dec. 1841, 4 D., 257. Digitized by Microsoft® 528 ADJUDICATION FOE DEBT. adjudication before the passing of the Lands Trans- ference Act, and what modification of these conclu- sions did that statute introduce ? Before the passing of the Lands Transference Act, the leading conclusions of the summons were, (1) a conclusion for special ad- judication, that such part of the debtor's lands described in the summons should be adjudged to the pursuer as should be worth the principal sum and interest to the date of the decree, and one- fifth part more of the principal sum, in respect the pursuer would want the use of his money, and be obliged to take land for the same, over and above the composition to the superiors and the expenses of infeftment ; and (2) an alternative conclusion for general adjudication of the whole lands described in the summons, for payment and satisfaction to the pursuer of the principal sum and interest to the date of the decree, according as the same should be accumulated at that date, and of the interest of the ac- cumulated sum during the not redemption, over and above the composition to the superior and expenses of infeftment.^ The Lands Transference Act declared that it should be no longer necessary to conclude for special adjudication, and that it should be lawful to conclude and decern for general adjudication, without an alternative conclusion for special adjudication.^ 1112. How is the adjudication completed? An abbreviate of the decree, signed by the extractor, is re- corded within sixty days of its date in the Eegister of Abbreviates of Adjudication ; but where lands or other subjects properly feudal are adjudged, infeftment or registration in the Eegister of Sasines is necessary, in order to the completion of the decree as a prefer- able right ; ^ and when a real right is thus established, the record- ing of an abbreviate is not indispensable for the adjudger's secu- rity.* 1113. How does the adjudger of an heritable security com- plete his title ? The adjudger's title may be completed, whether the adjudica- > Jur. St., iii, 335 (2d ed.). i Charteris, 2d Fet. 1714, 2 B. « 10 and 11 Vict., c. 48, § 18. S., 102 ; Ersk., 2, 12, 26. » Erst., 2, 12, 23 and 43 ; Bell's Prin., 826, A., 826. Digitized by Microsoft® ADJUDICATION FOR DEBT. 529 tion has been led against the creditor in the security, or against his heir duly vested therein, by recording the abbreviate of the adjudication in the Eegister of Sasines, which has the same effect as if the adjudger had been entered and infeft on a charter of adjudication.^ "Where the adjudication has been led against the creditor's heir-apparent, whether he shall have renounced or not, the adjudger's title may be completed by recording the decree itself in the Eegister of Sasines ; the adjudger, by this method, being in the same position as if an assignation of the security had been granted in his favour by the ancestor, and if such assigna- tion had been duly recorded at the date of recording the decree.^ (For the forms of procedure in leading adjudications against apparent heirs, and of completing the adjudger's title, see Cases under Adjudication in Implement, p. 367.) 1114. How long does the right of redemption competent to the debtor subsist ? The debtor may redeem the lands at any time during the currency of the legal, which in ordinary adjudications is ten years ; and even after the legal has elapsed the right of redemp- tion remains with the debtor, until decree of declarator of expiry is pronounced, or until the adjudger shall have possessed the lands for forty years after expiration of the legal on a completed feudal investiture.' 1115. How may an adjudication be converted from a re- deemable into an absolute right ? (1) By decree of declarator of expiry of the legal ; * or (2) by forty years' possession from the date of expiration of the legal on a completed feudal investiture.^ 1116. What is the legal or period of redemption in an adju- » 8 and 9 Vict., c. 31, ? 3. * Campbell, M., 321. ' 21 and 22 Vict., <^. 76, § 27. ' Ormiston, 7th Feb. 1809, F.C.(r) 'Erst., 2, 12, 49;(p) Menzies Lect., 824 (875). (p) Ersk., 2, 12, 22, note 345, and cases there cited. \r) Bell's Com., i, 707. 2l Digitized by Microsoft® 530 ADJUDICATION FOR DEBT. .dication contra hoEreditatem jacentem; and how may the right of redemption be made available ? The legal in an adjudication contra hcereditatem jacentem is seven years. It is said that, unless the heir who has renounced was a minor at the date of the renunciation, the right of redemp- tion is not directly available to him ; and that the method of ex- ercising the right, if he wish to do so, is to grant a trust-bond for a sum exceeding the value of the estate, upon which the trustee adjudging may redeem and convey to the heir.'- But it would appear from the authorities collected by Mr Boss, that an adjudi- cation may be redeemed by the heir when served, although he has previously renounced.^(s) 1117. "What is the nature and effect of an adjudication in security ? Adjudication in security is used where the debt is not yet due, and where the debtor is vergens ad inopiam, or the creditor is ex- posed to the risk of being excluded from competing with other adjudgers. It confers on the adjudger the right of ranking on the debtor's estate, but it may be redeemed at any time, and can never be converted into an absolute right of property.^ 1118. How may an adjudication be extinguished ? (1) By payment ; (2) by intromission with the rents ;*(<) and (3) by the negative prescription, although the adjudication be followed by charter and sasine, if not accompanied with posses- sion.^ 1119. What is meant by the "first effectual adjudication"? This has reference to the case where there is a competition of adjudications, the "first effectual" being that which fixes the criterion of pari passu preference introduced by the Act 1661, ' Ersk., 2, 12, 49 ; BeU's Com., ii, » Ersk., 2, 12, 9, 42 ; BeU's Prin., 958 (i, 713). 832, 2305. ' Stewart, 7th Dec. 1809, E.G. See * Bell's Prin., 829. 1 RosB L. C, 304. ' Anderson, M., 10676. (s) A posterior adjudger may exercise the power of redemption on pay- ment of the prior creditor's deht. [t) "Where there has been no decree of declarator of expiry of the legal. Digitized by MiSrosoft® ADJUDICATION FOR DEBT. 531 c. 62, giving an equal ranking to all adjudications led before the one first made effectual, and to those led within a year and day after it. An adjudication is made first effectual, provided it has proceeded on a summons duly intimated on the "Walls and in the Minute Book, (1) by actual infeftment on the decree, or registra- tion of it in the Eegister of Sasines ; or (2) by constructive infeft- ment, which is produced by lodging a draft charter and note in the office of the Presenter of Signatures, or by a general charge of horning against superiors, according as the lands are held of the Crown or of a subject, and by recording in the Eegister of Abbreviates a copy of the note and an abstract of the crown charter, or the charge of horning against the subject superior. • 1120. A, for a debt of £3000, adjudges his debtor's property, which was subsequently sold under a ranking and sale for £2000. Within a year and day of A's ad- judication, which was made first effectual, B led an adjudication of the property for an equal amount ; but before B raised his adjudication C inhibited the proprietor of the lands for a debt of £1000, contracted after A's, but before B's. "What are the rights of A, B, and C, respectively ? The price would be equally divided between A and B, their debts being equal, and their ranking being pari passu, in conse- quence of the statutory rule of preference. C is not entitled to participate in the price, although his debt was contracted before the debt of B, and his inhibition used before B's adjudication was raised, because C could have drawn nothing from the debtor's estate though B's debt had not been contracted ; and an inhibition of a creditor not adjudging does not affect a posterior adjudging creditor, if an adjudication has been led by another creditor for a debt contracted prior to the inhibition, and exceeding the value of the lands. ^(li) 1121. "What is the rule of ranking adjudgers on the debtor's ' 19 and 20 Vict., c. 91, i 6. = Miln, M., 2876 ; Ersk., 2, 11, 16 ; 1 Eoss L. C, 259. (u) The rules of ranking of inhibiting, adjudging and real creditors will be found fully stated Bell's Com., ii, 513, et seq. 2l2 Digitized by Microsoft® 532 ADJUDICATION FOK DEBT. estate whose adjudications have not been led within a year and day from the date of the first effectual ad- judication ? They are postponed to those creditors who have adjudged within the year and day, and are ranked according to the dates of their decrees.^ XIII. HERITABLE SECURITIES. 1122. What is a wadset, and what were the different forms by which the right was constituted ? A wadset is a form of security, now obsolete, by which a pro- prietor impignorated or pledged his lands to his creditor in secu- rity of debt. The right was constituted originally by a charter granted by the -debtor or reverser to the creditor or wadsetter, im- pledging the lands until payment ; afterwards by a deed of aliena- tion ex facie absolute and irredeemable, with a separate writing called a letter of reversion; and, lastly, by a mutual contract, by which the reverser, on the one part, disponed the lands, and the wadsetter, on the other part, granted the right of reversion.^ 1123. What was meant by a proper and an improper wadset ? (1) The proper wadset was that by which the wadsetter got possession of the lands with the rents and produce for the use of his money, so that the wadsetter was not obliged to account for the surplus of rents exceeding the interest, nor was the reverser bound to make up any deficiency. (2) The improper wadset was that under which, if the rents were less than the legal interest, the reverser was obliged to make up the deficiency ; and if the rents exceeded the interest, the wadsetter was bound to impute the surplus towards extinction of the principal.^ 1124. What were letters of regress ? The writ so called was a writing obtained by the reverser from his superior when the wadset was holden a me, its purpose being ' Ersk., 2, 12, 33. = Brsk., 2, 8, 26 ; Jiir. St., i, 591. ^Ei-sk., 2, 8, 4; Jur. St., i, 590. Digitized by Microsoft® HERITABLE SECURITIES. 633 to secure his re-entry upon extinction of the wadset, without pay- ment of a composition.'^ 1125. What was meant by an eik to the reversion ? An eik to the reversion was a deed granted by the reverser, acknowledging receipt of an additional loan from the wadsetter, and declaring that the wadset should not be redeemable until both loans were paid.^ 1126. How is a wadset extinguished, the redemption being voluntary ? (1) An improper wadset may be extinguished by a discharge and renunciation recorded in the Kegister of Sasines. (2) But where the wadset is proper, there ought to be a re-conveyance with resignation ad remanentiam, as the provisions of the Herit- able Securities Acts do not appear to apply to such rights, and it is doubtful whether a discharge and renunciation is sufficient.* 1127. What is a bond and disposition in security ? A bond and disposition in security is a deed granted by the borrower to the lender, containing (1) an acknowledgment of the loan, and an obligation to repay the principal sum and interest with penalties applicable to each ; (2) a conveyance to the lender of the borrower's lands in security of the principal, interest, and penalties, the lands being redeemable if the power of redemption be exercised, but irredeemable in the event of a sale in terms of the deed ; (3) an assignation to the rents and writs; (4) an obli- gation of warrandice ; (5) a power of redemption ; (6) an obliga- tion for the expenses of assigning and discharging the security ; (7) a power of sale on default in payment ; and (8) a consent to registration for preservation, execution, and publication. 1128. What is the leading difference between an heritable bond and a bond and disposition in security ? A bond and disposition in security contains a dispositive clause, conveying de presenti the lands in security of the personal 1 Ersk., 2, 8, 18 ; Menzies Lect., ^ Stair, 2, 10, 13 ; D. of Eoxburghe, 800 (848). 9tli March 1825, 1 W. and S. App., = Ersk., 2, 8, 10. 41 ; Menzies Lect., 800 (848). See Ersk., 2, 8, 17. Digitized by Microsoft® 534 HEKITABLE SECURITIES. obligation ; whereas an heritable bond contains no dispositive clause, but only an obligation to infeft the lender in an annual- rent corresponding to the amount of the interest, payable out of the lands, and also in the lands themselves, in security of the principal sum, interest, and penalties.' 1129. What was the obstacle which formerly existed to the constitution of heritable securities for loans by way of cash-credit ; And how was that obstacle removed ? An heritable security for a cash-credit, being a security for a future debt, was ineffectual under the Act 1696, c. 5, which enacted " that all dispositions or other rights that shall be granted for hereafter, for relief or security of debts to be contracted for the future, shall be of no force as to any debts contracted after the sasine following on the said disposition or right. "(k) To re- medy this inconvenience, it was provided by 54 Geo. Ill, o. 137, § 12, and re-enacted by 19 and 20 Vict., c. 91, § 7, after the re- peal of the former statute, that heritable securities may be given for cash-accounts, or for the relief of cautioners in cash-accounts, on condition that the principal sum and interest to become due under the bond should be limited to a certain definite sum, to be specified in the security, not exceeding the amount of principal and three years' interest at five per cent. ; and it is provided by the latter statute, that the heritable security shall subsist to the extent of the sum limited, or any less sum, until the cash-account is finally closed, and the balance paid up and discharged, and the infeftment renounced. 1130. How was the creditor's right under a bond and dispo- sition in security completed before the Heritable Secu- rities Acts ; And what is now the procedure ? Before the Heritable Securities Acts, the creditor's right was 1 Jur. St., i, 651. (x) There was a further diiEculty in reference to such securities, viz., that at commou law heritable securities cannot subsist for a debt fluctuating in amount, but fall, irresjiective of any discharge, whenever any part of the debt is paid, and do not revive although the debt should be again contracted. Apart from the statutory provision, the only mode of constituting a real security for such a debt is by absolute disposition and back-bond. Digitized by Microsoft® HERITABLE SECURITIES. 535 completed by infeftment on the bond ; but now the right is per- fected by registration in the General or Particular Eegister of Sasines, without infeftment. 1131. What is the effect of the registration of a bond and disposition in security in the Eegister of Sasines ? The registration of the bond is as effectual, to all intents and purposes, as if it had contained, in the case of subjects held by the ordinary tenures, an obligation to infeft a me vel de me, pro- curatory of resignation, and precept of sasine, and in the case of burgage subjects, an obligation to infeft more burgi and procura- tory of resignation, and as if sasine, or resignation and sasine, had been duly made, accepted, and given thereon, in favour of the original creditor, and an instrument of sasine, or of resignation and sasine, had been duly recorded at the date of the registration of the bond and disposition in security. • 1132. What is the form of voluntary conveyance by which heritable securities are transmitted ? Simple assignation, containing merely a transference of the security and the lands, and a reference to the register in which the security, or the sasine upon it, is recorded ; the assignee's right being completed by registration of the deed in the Eegister of Sasines. Where the assignation is granted, not by the original creditor, but by a prior assignee, the title of the latter is deduced in the assignation. 1133. Where the creditor has died after recording the bond in the Eegister of Sasines ; How does his heir make up a title ? (1) By writ of acknowledgment (Heritable Securities Act 1845, Schedule No. 2), granted in favour of the heir by the person, duly infeft, of whom the security is held ; and registration of the writ in the Eegister of Sasines ; or (2) If a writ of acknowledgment cannot be obtained, the heir's title may be completed by decree of general service ; notarial in- strument (Schedule No. 3), and registration of the instrument.(2) 1 10 and 11 Vict., c. 50, § 1. («) A title may be made up also by special service. Digitized by Microsoft® 536 HEKITABLE SECUBITIES. 1134. Where the creditor has died before recording the bond ; How does his heir make up a title ? (1) By general service, and infeftment on the bond, which is a valid warrant of sasine to the heir, although it contains no pre- cept -j^ or (2) by general service ; notarial instrument (Titles Act), Schedule K (a) or Schedule B ;(5) and registration of the bond (having a warrant of registration thereon along with the instru- ment), if in the form of Schedule K ; and registration of the in- strument alone if in the form of Schedule B.^ 1135. Where the assignee of a recorded bond has died be- fore recording the assignation? How does his heir make up a title ? By general service and infeftment on the assignation, which is as full and sufficient warrant of sasine in favour of the heir as if it had been a disposition and assignation containing a precept.^ But it appears to be incompetent to complete the heir's title in this case by notarial instrument under the Titles Act, as, although the provisions of that statute are by the interpretation clause ap- plicable to bonds and dispositions in security, assignations are not at least expressly, included. (c) 1136. Where the assignee has died after recording the as- signation ; How does his heir complete a title ? As writs of acknowledgment can be granted only by the per- son duly infeft, of whom the security is held, it is doubtful whether the heir's title, in this case, can be completed by such writ, unless > 10 and 11 Vict., c. 50, ? 6. ^11 and 18 Vict., c. 62, § 3. ^ 21 and 22 Vict., c. 76, §g 14, 36. (a) In burgage subjects. Schedule G, Titles Act 1860, § 10. (6) See mpra, note (n), p. 433. (c) By the Titles to Land Acts (1858, J 36, and 1860, § 2), the words "deed" and "conveyance" extend to and include (besides the writs enu- merated) " other deeds and decrees by which " rights in lands " in security are constituted or conveyed;" and the word "lands" includes "heritable securiiies ;" while it is provided (1858, § 14, and 1860, § 10) that " where any party shall have acquired right hy general conveyance, service, assigna- tion," &c., to an unrecorded conveyance, "it shall be competent to such party to expede a notarial instrument " as therein set forth. There seems therefore to be no doubt that such a course may be adopted. Digitized by Microsoft® HERITABLE SECURITIES. 537 his ancestor's constructive infeftment shall have been confirmed by the debtor.Xcf) It may therefore be the safer course to complete the title by general service and notarial instrument ; or by charter of confirmation and precept of dare constat, or by precept of dare constat alone, or writ of dare constat (either having by the Titles Act the effect of a confirmation), and infeftment or registration. 1137. How does a general disponee complete a title to a re- corded bond and disposition in security ? By expeding and recording a notarial instrument (Heritable Securities Act 1845), Schedule No. 3 ; or a notarial instrument (Titles Act), Schedule H.(e) 1138. Where a special assignation of an heritable security is contained in a deed of conveyance of other properties ; How does the assignee complete his title ? By expeding and recording a notarial instrument (Titles Act), Schedule B, setting forth generally the nature of the deed, and containing, at length, the portions of such deed by which the secu- rity is conveyed.^(/) 1139. How does a judicial-factor on a testamentary trust- estate complete his title to heritable securities held by the truster ? (1) Where the trustees have not made up a title — the judicial factor may complete his title by recording in the Kegister of Sa- sines his act and warrant of special powers, the securities being specified in the warrant.'(g') 1 Jur. St., i, 701. ' 21 and 22 Vict., c. 76, J 21. ' 21 and 22 Vict., u. 76, § 2 ; 8 and 9 Vict., ... 31, § 1. (d) This view seems to proceed on a rather rigid construction of the Act. The words " of whom the security is held " do not necessarily imply that the creditor in it must hold directly of the person infeft ; however that may be, the security is still held of him just as lands, though in non-entry, are held of the superior; but all difficulty would be removed by inserting a clause of confirmation, which may be combined with a writ of acknowledg- ment as well as with a precept of dare constat. (e) In burgage subjects. Schedule E, Titles Act 1860, ? 8. (/) In burgage subjects, 23 and 24 Vict., c. 143, § 4, Schedule B. [g) This mode of completing a title would, under the Titles Act 1858, Digitized by Microsoft® 538 HERITABLE SECURITIES. (2) Where the trustees have made up a title and are still liv- ing, — by assignation from the trustees and registration ; or by ad- judication against the trustees, and registration of an abbreviate of the decree in the Eegister of Sasines.^(A) (3) "Where the trustees have made up a title and are all dead, — ^by declaratory adjudication against the heir of the last survivor, and charter of adjudication from the debtor of whom the security is held, and infeftment on or registration of charter.^(A) 1140. How does a trustee on a sequestrated estate complete a title to heritable securities held by the bankrupt ? By expeding and recording a notarial instrument (Titles Act), Schedule M, setting forth the trustee's act and warrant, and speci- fying the heritable securities.^(7<;) > 8 and 9 Vict., c. 31, § 3. =21 and 22 Vict., c. 76, g 23. = &eAus. 917.(i) not have been correct, because J 21 provided that the act and warrant should have the " effect of a disposition of the lands in favour of such judi- cial factor or manager from the party whose estate is under judicial manage- ment," while in the case supposed the estate has been conveyed by him to the trustees. See supra, note {p), p. 433. By the 23 and 24 Vict., c. 143, § 38, it is declared that the warrant (whether the lands are or are not held burgage) shall be held to be a disposition by the trustees. Where, there- fore, the testamentary deed contains a special conveyance, the factor's title should be made up as in the case of a person having right to an unrecorded conveyance ; Act of 1858, § 14, Schedule K, or, if the whole deed is not to be recorded, Schedule B ; or Act of 1860, § 10, Schedule G, or, if the whole deed is not to be recorded. Schedule B. Where the testamentary deed is only a general conveyance, the factor's title should be made up as that of a party who has acquired right to a general conveyance ; Act of 1858, § 12, Schedule H ; Act of 1860, § 8, Schedule E. (A) Or by obtaining and recording warrant of special powers ; 23 and 24 Vict., c. 143, § 38. («■) And notes {p) and (r), pp. 433, 434. [h) Or, in case of burgage subjects, by notarial instrument, Schedule I, 23 and 24 Vict., c. 143, § 15. This applies to the case where the bank- rupt's title to the security has been completed. Where it has not, the trus- tee's title will be made up as that of a person who has acquired right to an unrecorded bond, or assignation thereof; supra, Ans. 1134, et seq., and notes. The same forms apply to making up titles in the persons of liquidators of joint-stock companies ; Act of 1858, | 22 ; Act of 1860, § 15. Digitized by Microsoft® HEEITABLE SECURITIES. 539 1141. A purposes to lend money to B, on an assignation to be granted by him of a bond and disposition in secu- rity in bis favour by M. On examination, it is found that M's title is complete, that tbe bond is correctly framed and duly recorded, that it is the only burden aifecting the property, and that the value of the pro- perty is amply sufficient for the loan ; Is there any- thing else required for A's security? Unless A has full confidence in B, he should, as recommended in the Style Book, obtain, along with the assignation, an acknow- ledgment of the subsistence of the debt from M ; as the bond may have been extinguished by payment, concursus debiti et crediti, or an unrecorded discharge. ^(^) 1142. What is the form of deed by which heritable securities are extinguished ? A discharge (Heritable Securities Act 1845, Schedule No. 4), by which the creditor discharges the bond, and all interest due on it, and declares the lands to be redeemed and disburdened ; the deed being completed by registration in the Eegister of Sasines. Where the discharge is granted, not by the original creditor, but by a person who has acquired right to the security by assignation or otherwise, the granter's title is shortly deduced in the dis- charge. (m) > Eankin, M., 572 ; 2 Koss L. C, 707 ; Jur. St., i, 676. {I) In one case, where lands had been sold in a sequestration, it was at- tempted, but unsuccessfully, to set aside an heritable security on the ground that it had been granted for a debt constituted by bills which had been re- newed since the date of the security ; M'Nair, 16th Feb. 1827, 5 S., 372. (m) By the 23 and 24 Vict., u. 143, § 28, it is provided that " when any lands, whether held burgage or not, disponed under the authority of an Act of Parliament in excambion for other lands, are burdened with debts, the lands so disponed shall, from and after the date of registration in the appro- priate Eegister of Sasines of the contract or deed of excambion of such lands, be freed and disburdened of such debts so far as previously affecting the same, and shall be burdened with the debts, if any, which previously affected the lands acquired in exchange for the same, in the order of pre- ference in which such debts were a burden upon such last mentioned lands." Before any such excambion is authorised, " such intimation as the Court of Digitized by Microsoft® 540 HEBITABLB SECURITIES. 1143. How does the debtor in a bond and disposition in se- curity exercise the power of redemption ? (1) The debtor makes notarial premonition of three months to the creditor, to attend at the place of payment,(ra) and receive the amount due under the bond ; with certification, that if he fail to appear, or refuse to receive payment, the amount would be con- signed in a chartered bank,(o) specified in the notice, having an office at that place. The evidence of this step of the procedure is a notarial instrument of premonition. (2) The debtor, or his procurator, along with a notary and witnesses, attend on the day, and at the place appointed, and in the event of the creditor's absence, or refusal to receive the amount, the debtor consigns it in bank, and protests that the lands shall thereafter be holden as duly redeemed ; and a notarial instrument of consignation is then expede. (3) The debtor then raises an action of declarator of redemp- tion against the creditor, to have it found and declared that the order of redemption has been duly observed and fulfilled by the debtor, and that thereby the bond and disposition in security is legally extinguished, and the lands redeemed and disburdened. The decree is recorded in the Eegister of Sasines. Session may consider necessary shall be made to all creditors having in- terest," who may " state any objections thereto, of which the Court shall judge." In the contract or deed of excambion, or in a schedule subscribed as relative thereto, and recorded therewith, " there shall be set forth as to each of the said debts the following particulars, namely, the amount of the debt, the date of recording, the writ by which its constitution was originally published, the register in which the same was so published, the name and designation of the original creditor, and, if the debt has been transferred, the name and designation of the creditor understood to be in right thereof for the time, and the date of recording the writ whereby his right was pub- lished, and the register in which the same was so published ;" and " in such contract or deed of excambion such debts shall be expressly declared to burden the lands to which the same are transferred." (k) The notice must be given either for the term of payment in the bond or for a term of Whitsunday or Martinmas thereafter; and the place of payment should be the office of the hank, if any, specified in the bond ; 10 and 11 Vict., c. 50, ? 3. (o) Or bank incorporated by Act of Parliament, 10 and 11 Vict., c. 50, Digitized by Microsoft® HERITABLE SECURITIES. 541 1144. How does the creditor exercise the power of sale ? (1) A notarial intimation, requisition, and protest, at the in- stance of the creditor, is served on the delDtor,(p) narrating the terms of the hond, that it remained due and unpaid, and therefore requiring the debtor, within three months, to make payment; with certification that, in case of his failure to do so, the debtor should incur the penalty in the bond, that the power of redemp- tion should thenceforth cease and determine, and that the credi- tor, after the expiration of the notice, should sell the lands by public roup at such price as they should hxmg.{q). The evidence of the notice is a notarial instrument of intimation, requisition, and protest. (2) After the expiration of the three months' notice, the sale is advertised once a week, for six weeks, in an Edinburgh news- paper, and also in a newspaper published in the county where the lands, or the chief part of them, are situated ; or if there be no newspaper pu.blished in that county, then in a newspaper published in the next, or a neighbouring county, the place of sale being at Edinburgh or G-lasgow, or at the head burgh of the county, or at the burgh or town sending or contributing to send a member to Parliament, which should be nearest to the lands. (3) The creditor executes articles of roup, and at the time and place advertised, the property is brought to sale, either in whole or in lots.(r) (4) If the property is sold, the creditor grants an absolute dis- position to the purchaser, containing all usual clauses, and, in particular, a clause binding the granter of the bond, and his heirs, in absolute warrandice of the disposition, and obliging him to cor- roborate and confirm the same, and to grant all deeds necessary (p) Personally, or at his dwelling-place, if within Scotland ; or if furth thereof, at the office of the keeper of the Eecoxd of Edictal Citations. "Where the dehtor and trustees named hy him were dead, the Court, on the petition of an heritable creditor, appointed a judicial factor to enable the creditor to give the requisite notice of sale to him ; Keid, 21st Feb. 1852, 1 Stu., 490. (q) The Court have an equitable right of control in regard to the upset price for the protection of the interest of postponed heritable creditors ; Kerr, 23d Dec. 1848, 11 D., 301. {r) It is illegal for the creditor selling to become the purchaser ; Taylor, 20th Jan. 1846, 8 D., 400. Digitized by Microsoft® 542 HERITABLE SECURITIES. for rendering the sale effectual.' The creditor, on receipt of the price, is bound to hold count and reckoning with the debtor, or with any other party having interest, and to consign the surplus in a chartered bank, having an office at the place of payment of the bond, in the joint names of the seller and purchaser for be- hoof of the party or parties having best right thereto ; the parti- cular bank in which the consignation is to be made being specified in the articles of roup.^ 1145. What is the effect of the sale and consignation of the surplus of the price ? The sale is as valid and effectual to the purchaser as if made by the grantor of the security himself, and that whether the grantor shall have died before or after the sale, and without the necessity of confirmation by him or his heirs, and notwithstand- ing that the party, debtor in the security and in right of the lands at the time, shall be in pnpilarity or minority, or subject to any legal incapacity.^ And upon consignation of the surplus, if any be, the disposition by the creditor to the purchaser has the effect, of completely disencumbering the lands of all securities and dili- gences posterior to the security of such creditor, as well as of the security and diligence of such creditor himself. ■*(«). 1 10 and 11 Vict., c. 50, § 3. ' lb., I 7. ' lb., I 8. * lb., I 9. (s) An heritable creditor may also make Ms security eifectual by process of maills and duties, by which he attaches the rents ; or poinding of the ground, by which he attaches the moveables on the lands ; but where they are let, his right is limited to the rents due. In the case of seques- tration of the debtor, the creditor may thereafter execute a poinding of the ground, or obtain decree of maills and duties ; " but such poinding or decree shall, in competition with the trustee, be available only for the in- terest on the debt for the current half-yearly term, and for the arrears of in- terest for one year immediately before the commencement of such term ;" 19 and 20 Vict, c. 79, ? 118. It is sufficient to secure this preference that the summons of poinding be executed prior to the date of the trustee's con- firmation ; Barstow, 11th March 1856, 18 D., 846 ; and the terms of the Act rather seem to imply that the proceeding might be taken after the confirma- tion, if the moveables have not been sold by the trustee ; but this question has not been tried. A creditor under a bond and disposition in security, containing power to out-put "possessors," is not entitled, after requisition, to eject a landlord by Digitized by Microsoft® HERITABLE SECURITIES. 543 1146. What is necessary in order to the constitution of a real hurden by reservation ? (1) The burden must be of definite amount ; (2) the person in whose favour it is constituted must be expressed ; (3) words must be used declaring the burden a real burden affecting the lands ; and (4) these particulars must be transferred to the record.^ (<) 1147. A disposition declared that it was granted with and under the burden of payment of £100 to A, and the declaration was engrossed in the sasine, and trans- ferred to the record ; Was a real burden effectually constituted ? No ; these terms import nothing more than a personal obliga- tion on the grantee. 2 1148. A disposition was granted to A, under burden of pay- ing to the grantor's younger children the sums pro- vided to them in a separate bond of provision, in which the sums and the children's names were speci- fied, and it was declared that the granter had bur- ' Duff's Feud. Conv., 194 ; Men- ' M'lntyre, 3d Feb. 1824, 2 S., zies Lect., 794 (842). 664. summary Sheriff-Court process of removing ; M'Farlane, 4th March 1857, 19 D., 623. (t) A disponed, " but with and under the burden of the foresaid price thereof (£17,700), and also with and under the burdens, conditions, provi- sions, and restrictions hereinafter engrossed, heritably and irredeemably, all and whole the coal seams and coal heughs in all and whole the following " lands, &c., and " with and under this further condition, that the said B, &c., and their foresaid, shall pay, jointly and severally, all damages of every de- scription which may be occasioned to the mansion-house, gardens, &c., by their working the coal or by their driving levels," &c. Held that, in regard to the claim of damages, the terms were such as to constitute only a personal obligation, and not a real burden ; Baird's Trs., 6th Feb. 1846, 8 D., 464. A disponed certain subjects, under burden of an annuity of £15 to each of his five daughters nominatim, to be continued on their deaths respectively in favour of their children (then unborn), and upon the death of the child- ren, to be continued in favour of grandchildren, which provisions he declared to be a real burden on the lands. Held that a real burden was effectually created in favour of the whole three generations ; Erskine, 1st March 1843, reported 24th June 1846, 8 D., 863. Digitized by Microsoft® 544 HEEITABLE SECURITIES. dened with these sums Lis "real estate, disponed by me to A by disposition thereof in his favour, of this date, and relative hereto." The sums, the children's names, and the declaration of the burden were en- grossed in the sasine, and transferred to the record ; Was a real burden duly constituted ? No ; because the burdens must appear in the deed itself, re- ference to a separate deed being insufficient, and it being incom- petent to insert anything in the sasine not contained in the dis- position, which is its warrant.' 1149. How is a real burden transmitted ? By assignation, intimated to the debtor whose sasine is bur- dened, and by registration of the assignation in the Eegister of Sasines.^ 1150. How does the heir of the creditor in a reserved burden make up his title ? By general service to the creditor." 1151. Does a reserved burden authorise a poinding of the ground, or an action of maills and duties ? A reserved burden, being real, authorises a poinding of the ground ; but, not being a title of possession until followed by ad- judication, it does not authorise an action of maills and duties.^ 1152. A party having purchased an estate under a reserved burden of £3000, disponed it to his daughter, and then executed a trust-settlement of his moveables, the first purpose of which was to pay his debts ; Was the daughter entitled to demand that the trustees should pay off the reserved burden on the estate ? No ; because the estate having been acquired by the father ' Allan, M., 10265 ; aff. 3 Boss L. » Cuthbertson, 7th Maroh 1806, C, 10. M. App., " Service," No. 2. ^ Miller, Sth Feb. 1820 ;(«) 3 Kosa < Stair, 4, 35, 24 ; and 4, 23, 5 ; L. C, 29. Bell's Prin., 922. (u) Reported, Hume, 540. Digitized by Microsoft® HERITABLE SECURITIES. 545 under the reserved burden, it was disponed tantum et tale, as it belonged to himself, and a trust-conveyance of moveables, with a general direction to pay the debts of the truster, does not relieve the heir from payment of a debt secured as a real burden on the lands.^ 1153. Where a security is constituted by absolute disposition and back-bond ; What is the effect of recording the latter in the Eegister of Sasines ? (1) The personal obligation to denude on payment is, by re- gistration of the back -bond, made a real limitation of the credi- tor's right.^ (2) The right is restricted to a security for advances expressed in the back-bond, or, where it is conceived in general terms, to the sums actually advanced and due at the time.^ (3) Eegistration of the bond protects the creditor from liability to the superior as owner.^(aj) ' Henderson, 29th Jan. 1858, 20 " Keith, M., 1163 ; Duff's Feud. D., 473. Conv., 295. ' Bell's Prin., 912. * Clark, 20th June 1850, 12 D., 1047 ; Menzies Lect., 812 (861). (x) The case of Clark seems hardly to warrant the statement here made. The judgment in the Court of Session found generally " that as the title of the disponee was ex facie absolute, he was to be held as fully vested in the fee and liable to all the obligations incumbent upon the vassal ;" and nothing seems to have been decided as to the effect of registration of the back-bond, which indeed had never taken place, though the deed was produced in pro- cess. In the subsequent case of Gardyne, 8th March 1851, 18 D., 912, where the subject was burgage, burdened with a ground-annual, it was held that, though the creditor recorded the back-bond and also a renunciation of the security, he was not thereby relieved of the liability to pay the ground- annual, but " that he must remain liable " " until a title is completed in favour of another vassal." The judgment in this case was reversed on ap- peal (Eoyal Bank of Scotland, 18th May 1853, 15 D., 45); but on the ground, distinguishing between ground-annuals and feu-duties, that " a pur- chaser of lands is not personally liable for a, ground-annual with which the disponer and lands are burdened." The Lord Chancellor, however, observed — " In accordance with the view taken by the majority of the judges, that where the law allows and enables parties to burden their property by con- veyances on the face of them absolute, it may give rise to great difficulties if such instruments are not to have all the qualities which on the face of them they purport to have.'' So far, therefore, as there is any authority on the point, it seems to be rather adverse to the view stated in the answer. 2m Digitized by Microsoft® 546 HERITABLE SECURITIES. 1154. Where the right of reversion in the back-bond is bur- dened with a specified sum only, and where the cre- ditor has made further advances ; Can the debtor de- mand a re-conveyance on payment of the sum speci- fied, the bond not being recorded? No ; until registration or judicial production of the bond the security covers all debts owing to the disponee, at whatever time contracted.^ 1155. How does the heir of the debtor make up his title ? By general service. ^ 1156. "What is the proper method of extinguishing a secu- rity constituted by absolute disposition and back- bond? The security may be extinguished by renunciation where the back-bond has been recorded in the Eegister of Sasines. But whether it is recorded or not. Professor Menzies says, " the right is most conveniently and satisfactorily extinguished by resigna- tion ad remanentiam." ^ 1157. What is a contract of ground-annual ? A contract of ground-annual, which is employed where sub- •infeudation is legally impossible, or conventionally prohibited, is a bilateral deed of conveyance granted in consideration of a fixed yearly return, for which the disponee grants his personal obliga- tion {y) to the disponer, and which is likewise made a real burden 1 Maitland, 23d Nov. 1827, 6 S., = E^gj^,^ g^ §_ 77 . Ersk. Prin., 3, 109 ; EusseU, 18th June 1829, 7 S., 8, 29. 767 ; aff. 4th April 1831, 5 W. S., ^ Menzies Lect., 812 (861). 256 ; Duff's Feud. Conv., 295. (jj) It was held in several cases in the Court of Session that the burden of a ground-annual followed the subjects and was enforceable against the proprietor for the time being, but did not continue to affect personally the original disponee or his heirs after they had been divested ; Peddle, 27th Feb. 1846, 8 D., 560 ; Small, 3d Feb. 1849, 11 D., 495 ; Gardyne, supra, note {x), p. 545 ; but the House of Lords reversed the judgments in the last two cases (Millar, 17th March ; Eoyal Bank, 13th May 1853, 15 D., 38 and 45), and found that the personal obligation subsists against the party who undertook it and his heirs, though divested of the lands, and that subsequent Digitized by Microsoft® HERITABLE SECUHITIES. 547 on the lands. The deed resembles a feu-contract, and contains similar provisions and stipulations, but it does not create a new fee, the yearly return being merely a burden on the disponee's infeftment, and depending, for its efficacy, upon publication in the registers. ^ XIV. LEASE. 1158. What is a lease ? A lease is a contract by which the use of land or other heri- table estate is granted to the lessee or tenant for a fixed yearly rent, or duty to be paid or performed by him to the lessor or landlord, either in money, the fruits and produce of the ground, or services.^ 1159. By what statutes were leases rendered effectual against singular successors ? (1) By the Act 1449, o. 18, it is ordained, "for the saftie and favour of the puir people that lahouris the ground, that they and al utheris that hes taken or sal take landes in time to come fra Lordes, and hes termes and zeires thereof, that suppose the Lordes sell or analy that land or landes, the takers sail remaine with their tackes unto the isohew of their termes quhais handes » Jur. St., i, 154. ' lb., i, 455. disponees did not incur any personal liability, and that, as regards them, the ground-annual could be recovered only from the lands. In these cases, Peddle, supra, was noticed as wrong decided. The Court of Session applied the same rule to the personal obligation for the feu-duty in feu-contracts ; King's College of Aberdeen ; Brown's Trs., 11th March 1852, 14 D., 675 ; but here also the House of Lords reversed, 11th Aug. 1854,- 17 D., 30. There is a difference, however, in the other re- spect in regard to feu-duties, viz., that the vassal for the time is personally liable for them, there being privity of estate between the superior and him ; Millar, in H. of L., ut supra. See supra, note (d), p. 323. In one case, where trustees were ordained to enter in subjects, the annual value of which was less than the feu-duty, it was held that they were " not bound so to enter as vassals, or accept a charter from the pursuers, as to undertake or sub- ject themselves to any personal liability ultra valorem of the trust-estate ;'■ Leith Dock Commissioners, 8th June 1860, 22 D., 1072. 2 M 2 Digitized by Microsoft® 548 LEASE. that ever thay landes cum to, for siclike maill as they tooke them for.'' Under this statute, possession was indispensable. (2) By the Eegistration of Leases Act 1857 it was enacted, that certain descriptions of probative leases for a period of thirty- one years or upwards (See Ans. 1161), registered in the Eegister of Sasines,(z) should, by virtue of such registration,(a) be effectual against any singular successor, whose infeftment is posterior in date to the date of the registration,-' in the same manner as if the grantee had entered into actual possession of the subjects leased at the date of registration. ^(6) 1160. What are the requisites of an unregistered lease in order to be effectual against singular successors ? (1) The lease must distinctly specify the subject let ; (2) it must contain a specific rent ; (3) it must contain a definite ish ; and (4) it must be followed by possession. 1161. What are the requisites of a lease which may be regis- tered under the Eegistration of Leases Act ? (1) The lease must be probative. (2) It must contain a spe- cific rent. (3) The endurance must be for thirty-one years or upwards,' or the lease must contain an obligation to renew from time to time so as to endure for a period of thirty-one years or upwards.* (4) The lease must specify the subject. (5) In leases executed after the date of the Act, if not granted in terms of an obligation to renew contained in a lease dated before the Act, (c) ' 20 and 21 Vict., c. 26, § 2. = Tb., ? 1. = /6., §16. * lb., ill. («) For the district within which the suhjects are situated, or, if held hurgage, in the Burgh Register. (a) " If valid and hinding, as in a question with the granters thereof." (J) The recording is to he " at or subsequent to the date of entry," and is not necessary " except for the purposes of this Act ;'' and " all such leases which would under the existing law, prior to the passing of this Act, have been valid and effectual against any such singular successor as aforesaid, shall, though not recorded, he valid and effectual against " him as well as against the granter ; 20 and 21 Vict., c. 26, § 2. (c) This seems to be a mistake ; no lease whatever executed after the passing of the Act (except of mines and minerals) falls within its operation if the extent of land exceeds fifty acres. See Act, J 18. Digitized by Microsoft® LEASE. 549 the extent of the subjects (unless these consist of mines, minerals, or burgage subjects,) (c) must not exceed fifty acres ; but no leases executed before the date of the Act are excluded from re- gistration in respect of the extent of the subjects let. (6) In leases of subjects not burgage, executed after the Act, if not a re- newed lease as above mentioned, the name of the lands of which the subjects let consist or form a part must be mentioned. (7) In leases executed after the Act, if not a renewal as above mentioned, the extent of the subjects let must be mentioned, excepting in leases of burgage subjects, and of mines and minerals.' 1162. May leases of ordinary duration be granted by a life- renter, or a tutor, or a minor with consent of his curators ? (1) A lease granted by a liferenter is limited to the duration of the liferent f(d) (2) a lease by a tutor expires with his office ;^(e) (3) a lease by a minor, with consent of his curators, subsists till its natural expiry.* ('For effect of verbal leases, see Ans. 164). (/) 1 20 and 21 Vict., c. 26, ? 18. = See Ans. 78. ' BeU's Prin., 1183. * lb. (c) See note (c), preceding page. (d) Unless greater powers are conferred by tbe liferent right. (e) This is the rule under the ordinary powers of administration, but, on cause shown, the Court will authorise tutors to grant leases to extend beyond their period of ofBce. Thus, tutors-nominate have been authorised to grant leases of farms for nineteen years, Halkett, 24th Nov. 1847, 10 D., 146 ; of farms for nineteen years, minerals for thirty-one years, and water- falls for twenty-one years, Speirs' Tutors, 11th July 1848, 10 D., 14Y4 ; of farms for nineteen years, Morrison, 19th July 1861, 23 D., 1313. Tutors-at-law have been authorised to grant leases for twenty-one years, Brown, 11th Dec. 1846, 9 D., 250 ; for fifteen years, Kincaid, 5th July 1856, 18 D., 1208. In this case it was held that The Pupils Protection Act, 12 and 13 Vict., c. 51, § 28, gives the Court authority to grant such powers to tutors-at-law. See also Fraser, 9th June 1857, 19 D., 801. (/) In a removing, the defender, who had previously been in possession on a nineteen years' lease, which had expired some years before, pleaded a verbal agreement for a new lease for nineteen years. Held that a letter written by the husband of the proprietrix (who had committed to him the management, with power to let and renew leases) to the surveyor of taxes, in answer to an inquiry to enable him to complete the valuation roll, was Digitized by Microsoft® 550 LEASE. 1163. Is a lease of game, or of salmon -fishings, followed by possession, effectual against singular successors ? State the reason. (1) A lease of game is not effectual against singular succes- sors ; because such a lease is rather a delegation of a personal privilege than a tack protected by the Act 1449. (jr) (2) A lease of salmon -fishings is effectual ; because such fishings are inter re- galia, and may exist as a separate real estate.^ 1164. The landlord during the currency of a lease granted to the tenant a new lease for forty years from the term of expiry of the former, and the tenant imme- diately recorded the new lease in the Eegister of Sa- sines ; Was the new lease effectual against a singular successor who acquired the estate before the expiration of the old lease ? No ; because the tenant had not attained possession under the new lease f and the registration of it does not make it effectual against singular successors before the date of entry therein stipu- lated.^ But the new lease will be binding if it is to begin from its date.* 1165. What is the effect of a lease where the granter is un- infeft, or where he is an apparent heir ? (1) Where the granter is not infeft, the lease, though valid in 1 Pollock, 5tli June 1828, 6 S., ' 20 and 21 Vict., o. 26, § 2. 913.(^) " Neilson, M., 15231 ; B. of Cas- i" Douglas, M., 15219; Scot, M., silis, 3 B. S., 600. 15220; Johnston, 3d July 1760, 5 B. S., 877.(A) equiTalent to the writ of the proprietrix, and competent and sufficient evi- dence to prove the agreement, and that, as it had been followed by possession and m inienentus, she could not remove the tenant, but that all questions as to the terms and conditions of any formal lease to he entered into should be reserved ; Emslie, 2d June 1865, 3 M'P., 854. ([iES; i6. Under registered leases, 559. See Leases. COMPOSITION, 262, 514. See Entbt with Supeeioe. CONDITIONS imposing restrictions on marriage, 56. CONDITIONS OF FEU, how made effectual, 280. See OsmiNAL Chaetbb. CONDITIONAL INSTITUTION AND SUBSTITUTION, 410. See Ser- vice. CONDITIO si sine liberis deeesserit, 412, 415: CONFIRMATION, CHARTER OF, original purposes of, 826-. moderii use of, 326. difference in effect betwixt confirmation of infeftment de me and of one a me, 326. effect of confirmation, 326. criterion of preference of rights completed by confirmation, 327. provisions of Titles Act relative to entry by coniirmation, 327. terms of writ of confirmation where lands held of different superiors, 828. meaning of words " perpetually confirm," 329. object and contents of qucequidem clause, 329. provisions of Titles Act with respect to entry by resignation, 829. superior not entitled in all cases to insist on insertion of tenendas and reddendo in charters by progress, 330; effect of mid-impediment in connection with confirmation, 331. confirmation and resignation combined, 331. effect of charter by progress which does not contain clause reserving superior's rights, 332. Digitized by Microsoft® INDEX. 579 CONFIEMATION, CHAKTEE OF, Continued— effect of entry with superior whose title is personal, 332. crown writ of confirmation, 358. See Completion of Dispohee's Title. CONFIEMATION OF EXECUTOES, nature of, 480. quot of testaments, 480. commissariot in which testament confirmed, 480. kinds and order of preference of executors, 480. testament-testamentar, 481. testament-dative, 481. procedure in confirmation as executor- nominate, 481. as executor-dative qua next of kin, 482. as executor-creditor, 482. modes by which other creditors can obtain pari passu rights with exe- cutor-creditor, 484. confirmation of next of Mn of an executor-nominate, 484i confirmation having effect of probate, 485. probate having effect of confirmation, 485. cases in which confirmation unnecessary, 485, CONFUSION, 158. CONJUNCT EIGHTS, to strangers, 874. to parents and children, S75; to husband and wife, 877: CONQUEST, heir of, 486. provision of, 391. to " heirs aiid children," 399. CONSOLIDATION, by resignation ad remanentiam, 838. by prescription, 888. consolidation of property with entailed superiority, 342. fee charged with burdens imposed by vassal, 842. CONSUETUDINES FEUDOBUM, 257. CONTEABAND GOODS, contracts relating to, 60; CONVEYANCE, essentials of, 266; COPAETNBEY, contract of, 280. definitioh of partnership, 230. effect of bill by a partner prohibited by contract from signing firm, 231. partner fraudulently using firm, 231. assignment of partner's interest, 2S2. one person cannot make a partnership, 282. preference of company creditors, 282. 2 o2 Digitized by Microsoft® 580 INDEX. COPAETNERY, Continued^ obligations by partner in his own name, 232. reserved power to alter contract, 233. presumption as to amount of partners' shares, 234. succession to heritage held by company, 234. arrestment in hands of partner, 234. effect of stipulation to be free from loss, 235. ■ responsibility as partner where there is no proper partnership, 235. circumstances eis ipsis dissolving company, 236. notice of retirement, 237. private knowledge of retirement, 237. preference of company creditors on stock, 238. action against a partner for company debt, 238. against another firm composed of same partners, 238. subsistence of partnership after dissolution, 239. liability of representatives of deceased partner, 239. retirement of partner with a share of profits or an annuity, 241. time at which profits held divisible when partnership dissolved by death, 241. rules as to company creditor voting and ranking on sequestrated estate of company, 241. judicial proceedings at the instance of a company, 247. subscription of cash-credits by company, 136. submission by company, 217. COEPORATION, entry of, 518. COPETEST, 888. CROWN CHARTERS, procedure for obtaining crown charters before Crown Charters Act, 351. under Crown Charters Act, 352. remedy where applicant dissatisfied with revisal, 352. procedure for obtaining charter with clause of novodamus, 353. procedure introduced by Titles Act for obtaining new investiture by confirmation and resignation, 353. register of confirmations and resignations, 354. peculiarity of qucuquidem of crown charter of resignation, 354. DAUGHTER, destination to eldest daughter, 487. DELETION. See Vitiations. DEATHBED, operation of law of, 417. deeds reducible, 417. provisions to widow and children granted on deathbed, 418. conveyance to heir with reserved power to burden, 419. exercise of reserved power, 419. Digitized by Microsoft® INDEX. 581 DEATHBED, Continued^ revocation of settlement by deathbed deed, 419. modes by which challenge excluded, 420. DECEEE-AEBITEAL. See SuEMiesiou. DELEGATION, 158. DELIVERY OF DEEDS, principle why delivery required, 27. deeds not requiring delivery, 27. equivalents to delivery, 28. legal presumption when deed in granter's possession, 28. when in hands of third party, 30. partial delivery, 30. settlement bearing docquet directing deed to be destroyed, 31. retention of conveyance by purchaser when taken to himself in life- rent and a third party in fee, 31 . delivery of decree-arbitral, 33, 228. DEPOSIT-EECEIPT, indorsee entitled to uplift contents after indorser's death, but subject to inquiry quo animo, 157. DESCEIPTION, of subjects in conveyance, 268. clause declaring general name, 269. See Chabteb, Obiginal. DESTINATIONS, conjunct rights to strangers, 374. examples of effect of different destinations, 374. conjunct rights to parents and children, 375. to husband and wife, 377, See Makbiage-Coktkact — Postnuptial Sbttlembnts — Bonds of Pkovision- — Seevice. DILIGENCE, PEESONAL, legal fictions resorted to for obtaining execution against person for civil debt in Scotland and England, 193. earliest kind of diligence against person in Scotland, 193. act of warding, 193. letters of four forms, 194. letters of horning, 194. meaning of " delivering them by you, duly executed and indorsed again to the bearer," 194. hornings on decrees of Court of Session, 194. on decrees of inferior judges or which pass upon a bill, 194. execution upon inferior court decrees, 195, upon Court of Session decrees, 196. before Personal diligence Act, 195. after Personal Diligence Act, 196, effects of denunciation, 196. effects of registered charge and of incarceration, 197. expense of diligence under old and new forms, 197. Digitized by Microsoft® 582 INDEX. DILIGENCE, PERSONAL, Continued-^ modes of executing charge, 197. inducicB of charge, 198. charge at instance of foreigner without mandatory, 198. charge at instance of company where none of parties named in war- rant, 199. charge at instance of whole partners without naming firm on warrant in favour of company and partners nominatim, 199. partner charged on diligence against company in which he is not named, 199. liberation of debtor imprisoned on letters of caption, 199. act of grace, 200. diligence on bills. See Bills and Notes. DIRECTION, CLAUSE OP, terms of warrant of registration when deeds contain clause of, 324. DISCLAMATION, 261. DISCHARGES AND DEEDS OPERATING DISCHARGE, modes by which obligations may be extinguished, 158. payment with cancellation of bond, 159. discharge separate from bond, 159. discharge by one not the proper creditor, 159. discbarge by factor, 159. terms of receipt when debt paid by debtor's agent, 160. eifect of payments of interest by agent acting for both debtor and creditor, 160. effect of general discharge added to discharge of particular debts, 161. discharge by English guardian of Scottish heritable bond due to his ward, 162. discharge when obligation followed by inhibition or adjudication, 162. stranger or cautioner making payment of debt, 163. discharge of principal reserving recourse against cautioner, 164. general discharge by widow does not include aliment to next term, nor mournings, 164. discharge under composition-contrapt "upon payment " of a compo- sition, 164. effect of discharge to debtor under private composition-contract which contains creditor's receipt of bills in security of composition and absolute release of debtor, 165. effect of discharge of one obligant in question with another, 165. modes by which cautionary obligations may be extinguished other- wise than by express discharge, 166. DISENTAIL. &e Entails. DISPONEE'S TITLE— completion of. See Completion. DISPOSITION, meaning of public and base infeftments, 313. effect of completed conveyance de me, 314. effect of completed conveyance a me, 314. Digitized by Microsoft® INDEX. 583 DISPOSITION, Continuedr— operation of disposition a tne vel de me, 814. cessation of subaltern rights in England, 314. subinfeudation, 314. statutory relaxations of rule against alienations, 315. title by separate charters, 316. enforcement of entry by purchaser as an appriser, 816. criterion of preference of base rights, 316. ,, causes which led to disuse of separate charters, 316, clauses of modern disposition, 317. effect of addition to description of granter's "whole right and title," &c., 818. reference to conditions of grant, 319. statutory import of obligation to infeft a me vel de me, 320. import of obligation to infeft by two infeftments and manners of holding, 320. effect of omission of words a me, 321. what holding implied where none expressed, 821. import of clause of resignation for new infeftment, 322. effect of general assignation of writs and evidents, 322. obligation to relieve of stipend whether transmitted by assignation of writs, 322. warrandice which trustees are bound to give, 324. when unnecessary to record whole of conveyance in order to obtain real right, 324. how partial registration effected, 824. terms of warrant of registration when deed contains clause of direc- tion, 325. disponee's heir not bound to make up title under obligation by dis- poner to infeft by two manners of holding, 325. whether seller bound to grant disposition with double holding, 813. See Ohabtee, Oeiginal — Completion op Disponee's Title. DISPOSITION AND ASSIGNATION, in what cases used, 333. difference betwixt executive clauses and those of ordinary disposition, 333, transmission of personal right to lands without dispositive words, 883. criterion of preference in transmission of personal rights to lands, 383. sasine on disposition and assignation, 384. qumquidem of charter of resignation on disposition and assignation, 834. forms of completion of real right without intervention of superior, 384. assignation of personal right written on conveyance, 334. discrepancy in Titles Act betwixt enactment and schedule, 835. completion of real right by notarial instrument, 886. terms of docquet to be written on assignation of unrecorded convey- ance, 836. nature of conveyance by heir unentered whose ancestor was infeft, 886. Digitized by Microsoft® 584 INDEX. DISPOSITION AND ASSIGNATION, Oonliimed— where ancestor not infeft, 336. how disponeo acquires real right in such cases, 336. See Completion of Disponee's Title. DISPOSITION AND SETTLEMENT. See Testament— Tehst-Disposition AND Settlement. effect on special conveyance of suhsequent general settlement, 420. completion of general disponee's title before and after Titles to Land Act, 420. DISPOSITION OF SUPERIORITY, in what respects superior restrained in regard to disposal of supe- riority, 337. peculiar clauses of disposition of superiority, 338. See Completion of Disponee's Title. DISPOSITION AND BACK-BOND, 545. DONATIONS between husband and wife, 405, ENTAILS, definition, 447. different kinds of entails, 447. provisions of Entail Act 1685, c. 22, 448. entail by one having a personal right, 449. effect of reference to recorded deed for conditions, 449. requisites of strict entail before Entail Amendment Act, 449. modifications authorised by that Act and Titles Act, 450. rules as to insertion of, or reference to, conditions, &c., in old and new entails, 450. insertion of conditions in first sasine, 452. effect of contracting debt after entail feudalised but before it is re- corded, 453. effect of entail recorded but not feudalised, 454. eftect of entail by heir possessing on apparency, 455. right of creditors of heir of entail possessing on apparency, 455. effect of maker of entail including himself within prohibitions, 455. effect where females are called, but heirs-portioners not excluded 455. effect of fetters on heirs whomsoever, 456. operation of irritant and resolutive clauses, 457. effect of entail defective in one prohibition, 457. prescription of obligation to make an entail, 458. directions to trustees to entail lands, 458. terms descriptive of institute, 459. forfeiture by treason, 460. reduction of oontravener's title, 461. reduction of deeds in contravention, and of oontravener's title, 461. reduction by descendant of contravener, and by « remote substitute 461. Digitized by Microsoft® INDEX. 685 ENTAILS, Continued— effect of prescription on alienation of part of estate in contravention of entail, 462. declarator of forfeiture after contravener's death, 462. effect of contravention on contravener's descendants, 462. liferent secnrities by contravener, 463. liability of heir for entailer's debts, 463. for debts of preceding heirs, 464. form of attaching heir's life interest, 464. provisions to wife under Aberdeen Act, 464. completion of real right under bonds of annuity, 465. provisions to children under Aberde^ Act, 466-467. where provisions by former heir are in subsistence, 468. extent to which fee a)id rents are chargeable with arrears of interest under bonds and dispositions in security, 468. obligation to make provision where lands burdened with previous provisions, 468. power of sale under Entail Amendment Act, 469. application of surplus price under Eutherfurd Act, 469. leases under Montgomery, Eosebery, and Eutherfurd Acts, 470. excambions under Montgomery, Eosebery, and Eutherfurd Acts, 471 . improvements under Montgomery Act, 472. how claim for them made available against succeeding heirs, 472. bond of annualrent under Eutherfurd Act for improvement money, 473. bond and disposition in security for improvement money, 474. Montgomery and Aberdeen Acts not applicable to new entails, 475. power of heir under new entail to grant building leases, 475. effect of Eutherfurd Act on trusts, liferent rights, and leases, 475. rights of heir with reference to money vested in trust for purchase of land to be entailed, 476. completion of next heir's title on contravention by a prior substitute, 476. extinction of entails, 476. consents requisite to disentail, 476. disentail without consents, 476. definition of heir-apparent, 477. effect of recorded instrument of disentail, 477. disentail does not alter subsisting destination, 478. protection of creditors in entailer's debts, 478. title of heir executing disentail, 478. proper course of procedure where lands are to be placed under a new instead of an old entail, 479. terms on which heirs of entail entitled to an entry, 516. application of price of relinquished entailed superiorities, 524. entailed estate chargeable with price of such superiorities, 524. EIK TO EEVEESION, 538. Digitized by Microsoft® 586 INDEX. ENTRY WITH SUPERIOK, when seller is tound to enter, 312. enforcement of entry by purchaser as an appriser, 316. effect of entry when superior's title personal, 332. entry by liferenter, 518. effect of entry by superior whose title is subsequently reduced, 513. composition, 514. trustees pay composition although holding for heir, 515. mode by which disponee may avoid payment of composition on death of disponer, 515. disponer's heir not bound to enter, 515. circumstances where single composition only payable, 516. terms on which heirs of entail are entitled to an entry, 516. grantee of feu-charter not bound to take infeftment, 517. heir paying relief not entitled to an assignable charter, 517. singular successor or heir, on payment of composition, entitled to a charter assignable, before infeftment, 517. entry of a corporation, 518. charter by progress regulated by terms of original grant, 519. reconveyance by superior without resignation iheifectual, 520. mode of enforcing an entry before Lands Transference Act, 520. mode introduced by that Act, 521. mode of relinquishing superiorities under Titles Act, 523. effect of relinquishment, 524. application of price of relinquished entailed superiorities, 524. entailed estate chargeable with price of relinquished superiorities, 524. BRBOR, FORCE, AND FRAUD, effect of, on contracts, 66. error in fact or law, and where obligation implemented, 67. effect of fraud on contracts, 67. of force or fear, 68. effect of metus carceris, 68. distinction between effect of deeds obtained by fraud, or by force, or fear, in the hands of third parties, 69. what necessary to found reduction under 1621, c. 18, 69. may gratuitous creditors challenge, 70. who conjunct persons, 70. efifect of Act on cautionary obligations, 70, deeds struck at by 1696, c. 5, 70. bills granted for present advances do not fall under statute, but ac- ceptances and indorsations of bills in security of prior debts and bonds of corroboration do, 71. circumstances which infer notour bankruptcy, 71. ESCHEAT, casualty of, 262. EXECUTOR-CREDITOR, competition with arrester, 211. Digitized by Microsoft® INDEX. 587 EXECUTORS. See Confikmation of Exeoutoes. FACTORY, general factory, 252. acts requiring special authority, 252. termination of factory, 253. personal responsibility of factor to third parties, 254. liability of factor for sub-factors, 254. diligence incumbent on factor, 254. FEE AND LIFERENT. See Dbbtinationb. completion of real right under destination where liferenter has a fidu- ciary fee, 399. completion of heir's title under such destinations, 502. FEUDAL SYSTEM, outline of origin and nature of, 255. the three great stages of feus, 256. styles of Marculfus, 256. consuetudines feudorum, 257. order in which authorities on feudal questions resorted to, 257. when feudal system introduced into Scotland, 257. what led to its extension, 257. classes of property exempted from operatioii of system, 257. ancient method of constituting feudal relation, 258. proper and improper investiture, 258. breve testatum, 258. enumeration of holdings, 259. definition of ■' feu," and origin of term, 260. superior's estate, 260. vassal's estate, 260. casualties of superiority, and which of them still subsist, 261. return of feu to superior, 342. See Chabtee, Original — Disposition! — Entry with Superior. FEU-DUTY. See Ch^ktek, Original, FISHINGS, trout and salmon, 273. FORCE AND FRAUD, 66, See Error. FORGED DEED, effect of homologation on, 77. * FOREIGN DEEDS, reason of privilege, 19. foreign conveyance of moveables deficient in solemnities of hx loci con- tractus, 24. bequest of heritage in foreign will, 24. difference in effect betwixt an informal conveyance of land and an obligation to convey, 25. disposition of heritage may be revoked by English will, 26. must genuineness of foreign deed be proved, 26. unstamped foreign deeds, 86. Digitized by Microsoft® iliiii INDEX. FOREIGN DEEDS, Ooniinued— discharge by English guardian of Scotch heritable bond, 162. decree arbitral on Scotch submission to an arbiter in England, 228. FOUR FORMS, letters of, 193. FURTHCOMING. See Abkbstment. GROUND-ANNUAL, contract of, 546. HEIRS, order of liability of, 111. terms descriptiYe of, 486. heir unentered, conveyance by, 336. entry by, 332. entail by, 455. HERITABLE BOND, 583. HERITABLE SECURITIES, wadset, 532. distinction betwixt proper and improper wadsets, 532. letters of regress, 532. eik to reversion, 533. extinction of wadset, 533. bond and disposition in security, 533. distinction betwixt it and heritable bond, 533. obstacle which formerly existed to the constitution of heritable secu- rities for cash-credits, 534. completion of creditor's right under bond before and after Heritable Securities Acts, 534. effect of registration, 535. assignation, 535. completion of heir's title, 535. of assignee's title, 536. of general disponee, 537. of judicial factor, 537, of a trustee on a sequestrated estate, 538. heritable security extinguished by unrecorded discharge, or concursus debiti et crediti, 539. discharge, 539. power of redemption, 540. power of sale, 541. effect of sale and consignation of surplus price, 542. purchase of subjects by creditor in bond, 64. constitution of real burdens by reservation, 543. transmission of real burdens, 544. completion of title of heir of creditor in reserved burden, 644. reserved burden authorises poinding of the ground, but not maills and duties, 544. Digitized by Microsoft® INDEX. 589 HEEITABLE SECURITIES, Continued— absolute disposition and back-bond, 545. eifect of recording back-bond, 545. title of debtor's heir, how completed, 546. extinction of security constituted by absolute disposition and back- bond, 546. contract of ground-annual, 546. HOLDINGS, enumeration of, 259. what kind implied where none expressed, 321. whether seller bound to grant a disposition with a double holding, 313. See Chabtee, Obisinai — Disposition. HOLOGEAPH WRITS. See Pbivileged Weitikgs. HOMOLOGATION AND HHT INTERVENTUS, difference betwixt, 71. effect of homologation on deeds by pupils, minors, and married women, without husband's consent, 72. effect of subscription of instrumentary witnesses, 78. effect of subscription by heir-at-law as witness to his father's settle- ment, 73. effect of bond by minor female, without curator's consent, but ratified after marriage, 74. homologation not applicable to vitiated entail, 74. receipt of rents by heir of entail who is also heir alioqui mccessurus, 75. partial homologation, 75. defender entitled to counter issue of homologation in reduction on ground of facility, but not of insanity, 75. does homologation validate deeds from date, 76. difference betwixt a promise to convey and a promise to ratify an in- formal deed, 76. rei interventus excluded when subscription denied, 76. effect of homologation or rei interventus on forged deed, 77. on deeds granted by minor without consent of curators, 77. effect of verbal leases, 77. effect of rei interventus on cautionary obligations, 78. HORNING, letters of, 194. INDENTURE, where entered into by a minor without father's consent, 214. after stamping of indentures, 215. repetition of apprentice fee, 215. penalty through misconduct of apprentice, 216. obligation of cautioner, 216. circumstances entitling master to reclaim apprentice after enlistment, 216. Digitized by Microsoft® 590 INDEX. INFEFTMENTS, public and base, 313. in locality, 396. INHIBITION, grounds of, 525. procedure, 525. execution when debtor furth of Scotland, 526. affects aquirenda, 526. affects only voluntary deeds, 526. of father for children's provisions in marriage-contract, 397. competition betwixt adjudger and inhibitor, 531. INITIALS OR MABK, subscription by. See Solemnities of Deeds — Bills. INSANE PERSONS, effect of deeds by, 52. rule of practice as to settlerdents exposed to risk of challenge on ground of facility, 53. INTERDICTION, how imposed, 53: duty and responsibility of interdictors, 54. deeds by interdicted persons alone which are unchallengeable, 54. sale of heritage by interdicted person, 54. liability of heir taking up heritage of interdicted person, but not re- presenting him as heir in mobilibus, 55. INTEREST, in what cases accumulation allowed, 115. mode of restricting to lower per centage, 117. on heritable securities for cash-credits, 534. on arrears of feu-duties, 284. INTIMATION OF ASSIGNATION. 5'ee Assionation; INTOXICATED PERSONS, deeds by, 55. INVESTITURE, proper and improper, 258; IRRITANCY, of feu ob non solutum canonem, 261. couventiohal irritancy, 263i arrears of feu-duty not claimable where superior insists on forfeiture t)f feu, 263. JOINT-STOCK COMPANIES, poW6r of sale in bond and disposition in security by a registered joint-stock compaijy, 242. particulars of memorandum of joint-stock company, 242. liability of directors upon declaring or paying dividend when company insolvent, 243. effect of registration, 244. powers as to holding land, 244. Digitized by Microsoft® INDEX. 591 JOINT-STOCK COMPANIES, Continued^ liability of former sharoholders, 244. when company may be wound np, 245. in what circumstances is company deemed unable to pay debts, 246. deeds by company by whom granted, 247. judicial proceedings at the instance of company, 247. JUDICIAL FACTOR, on lapsed trust, completion of title, 433. to heritable securities, 537. duties of factor with respect to money coming into his hands, 116. JUS' OEDENDARUM AGTIONUM, 125. JUS RELICTS, effect of wife's acceptance of conTentional provisions, 392. See Maeeiage-Contkact. JUS MARITI. See Maketbd "Women, Deeds by — Maekiage-Contbaot. LEASES, statutes rendering leases effectual agdinst singular successors, 547. requisites of an unregistered lease, 548. of a registered lease, 548. lease by a liferenter, 549. by a tutor or minor, 39, 549. lease of game and of salmon fishings, 550. effect of new lease granted before expiry of old, 550. lease when granter uninfeft, or when an apparent heir, 550. effect of lease to endure till a certain debt is paid, 551. effect of unregistered lease for 1000 years, 551. effect of unregistered lease containing obligation for constant re- newals, 551. power to assigh or sublet, 552; adjudication by creditors, 552. effect of assignation bf lease to tenant's eldest son, 552. to his second son, 552-553. lease with substitutions, 553. assignee or adjudger liable for arrears, 554. unrecorded leise ineffedtual without possession, 554; effect of marriage of female tenant, 554. tenant's bankruptcy, 554. stipulation for expense of buildings, 554. retention of rent for claims against landlord, 555; stipulation for retention of rent in extinction of debt or for meliora- tions, 555. extinction of leases, 556. removings under formal lease, 557. under improbatiTe lease, 568. letter of removal, 558. tacit relocation, 559. Digitized by Microsoft® 592 INDEX. LEASES, Continued— unrecorded lease, completion of heir's title to, 559. registered lease, completion of heir's title to, 559. unregistered lease, completion of title by an assignee, 560. completion of title of trustee or adjudger, 560. bond and assignation in security, 560. how such security made available, 560. completion of heir's title to bond, 561. what necessary to complete security over assignable lease, 155. LEGACIES, verbal, 435. error in narrative, 435. in name of legatee, 435. hgatum rei alierue, 486. legacy of heritage, 436. legatwm liberationis, 436. tmiversal legacy, 436. general legacy, 488. special legacy, 438. action for recovery of special legacy, 438. ademption of legacies, 439. effect of subject disponed by settlement being sold by testator, 439. effect of special legacy of a moveable bond afterwards converted into heritable security, 439. legacies to several legatees, 440. legacy in liferent and fee, 440. vesting of legacies, 442. legacy to legatee and his heirs, 442. conditional legacies, 444. substitutions in legacies, 445. clause of return, 447. legacies in improbative writings referred to in a formal deed, 19, 22. LEGACY-DUTY, when exigible from heritage, 430. LEGITIM, discharge of, before or after father's death, 393. effect of acceptance of conventional provisions, 394. See Makeiage-Contkaot. LIFEKENTS, effect of Entail Amendment Act on, 475. LOCALITY, infeftment in, 396. MARCULFUS, styles of, 256. MARGINAL ADDITIONS. See Solemnities of Dekds. in public records, 304. MARRIAGE-CONTRACT, rules of intestate moveable succession, 383. Digitized by Microsoft® INDEX. 593 MAEEIAGE-CONTRACT, Continued— divisioii of goods in communion before and after Moveable Succession Act 1855, 383. collation, 384. teres, 385. from what subjects excluded, 385. how terce may be excluded, 387. measures for making terce effectual, 387. service and kenning, 387. lesser terce, 387. courtesy, 388. arrears of terce and courtesy, 388. objects of antenuptial contract, 388. annuity to wife, effect of husband's bankruptcy, 389. intimation of assignation of funds invested for behoof of wife exclu- sive oijus mariti, 389. bank shares bought with wife's funds, but transfer taken to husband and wife, cannot be retained by bank for husband's debt, 389. attachment of furniture settled on wife by contract, 390. retention in implement of special fund for wife's obligation, 390. implement by husband of wife's provisions where tocher not paid, 391. provision of conquest, what embraced in it, 391. modes of making wife's provisions preferable to claims of husband's creditors, 392. effect of acceptance by wife of conventional provisions, 392. effect of discharge of legitim before or after father's death, 393. modes of conferring y«s crediti on children for provisions, 393. modes of giving them preference to father's creditors, 394. effect of acceptance by child of conventional provisions, 394. infeftment in locality, how constituted and completed, 396. modes of making provision by locality of definite amount, 396. effect of alienations by father of subjects conveyed by contract, 397. effect of inhibition by children against father, 397. destinations to " heirs and children " and " bairns and children," 399. conquest to " heirs and children," 400. father's power of*division, 400. father's power to implement, 401. modes of preventing discharge by heir to father, 401 . modes of preventing renunciation of wife's provisions, 401 . burdening estate with provisions to younger children, 402. effect of heritable security for children's provisions, 402. enforcement of obligation by father to invest money for children's provisions, 404. effect of security for antenuptial provision granted when husband in- solvent, 407. See Postnuptial Settlementr — Bonds or Peovision. 2 V Digitized by Microsoft® 594 INDEX. MARKIED "WOMEN, deeds by, 43. distinction between jus mariti and right of administration, 43. exceptions from jus mariti, 44. personal obligation null, 44. exceptions, 45. bond by, to take effect after husband's death, 46. conveyance by reserving husband's rights, 47. bond by, with husband's consent, ratified on oath, 47. renewal of bill by, 47. deeds of settlement by, 48. action for wife's legitim in husband's name, 48. bond and disposition in security by husband and wife, 49. intimation of assignation by assignee of bond in wife's favour, 49. renunciation or exclusion of ^ms mariti and right of administration, 50. married woman may act as trustee, but not as tutor or curator, 51. ratification, 51. ratification granted under compulsion, 52. holograph obligations by unmarried women, 21. indorsation of bills to married women, 174. diligence on bills payable to, 183. MARRIAGE, casualty of, 261, restrictions on, 56. METUS CARCERIS, deeds granted under, 68. MID-IMPEDIMENT, effect of, in confirmation, 331. MINES AND MINERALS, reservation of, in charter, 275. where property sold and minerals found not to belong to seller, 307. MINORS, DEEDS BY age of person capable of contracting, 33. contract between a major and a pupil, 33. diiferent kinds of guardians, 34. conveyances of moveables by pupils and minors, having tutors and curators respectively, 34. decree against a pupil, 35. diligence at instance of pupil on dependence of action, 36. charge against minor without charging curators, 36. privileges of tutors-nominate, 36. nomination of tutors and curators by father, 37. tutor cannot alter order of ward's succession, 37. Bales of ward's property, 37. of pupil's heritage, 37. grounds on which Court authorise sale of pupil's heritage, 38. leases by tutors and minors, 39, Digitized by Microsoft® INDEX. 595 MINORS, DEEDS BY, Continued^ settlements by minors, 40. quadriennium utile, 40. reduction of deeds by minors, 40. eflfeot of bond by minor, having curators, witbout their consent, 41 . exceptions to right of restitution, 42. bills granted by curators alone, 42. tutor ad litem in applications under Entail Amendment Act, 43. bond by tutor for pupil, peculiar clauses of, 120. indenture entered into by minor without his father's consent, 214. MISSIVES OF SALE, essentials of, 306. recall of offer, 306. what entitles purchaser to resile, 307. effect of stipulation that purchaser shall be satisiied with title as it stands, 311. effect of stipulation that purchaser shall relieve seller of sum in an heritable security over property, 812. effect of lands purchased being liable in real warrandice of other lands, 812. effect of seller's death after completion of missives, but before pur- chaser's title made real, 312. whether purchaser may reject title originally defective on which prescription has run, 312. whether seller bound to enter with superior, 812. whether seller bound to grant disposition with double holding, 313. MORTGAGE OF SHIP, 250. MORTIFICATION, holding of, 259, MOVEABLE REAL RIGHTS, whether first purchaser can insist for delivery where goods sold, but not delivered, and fraudulently resold, 248. furniture conveyed, but not delivered, to trastees, poindable, 248. securities over corporeal moveables, 249. attachment of furniture settled on wife by marriage-contraci;, 390. MOVEABLE SUCCESSION, INTESTATE, ■ rules of, 888. NAME, change of, 88. NARRATIVE, effect of deeds in which grantor not designed, 87. in which witness not designed, 87. statement of cause of granting, 88. NON-ENTRY, casualty of, 261. when incurred, 263. when excluded, 264. 2 p2 Digitized by Microsoft® 596 INDEX. NOTARIAL EXECUTION. See Solemnities of Dekds. NOVATION, 158. OBLIGATIONS in solidum and pro rata, 119. ad facta prcestanda, 119. OPEN DOORS, letters of, 201. PACTUM de quota litis, 64. PARES CURI^, 258. PENALTY IN BONDS, 114. POINDING, warrants of, 201. what necessary when year elapsed from date of charge, 201. what necessary before Personal Diligence Act, where access to goods not obtained, 201. subjects which cannot be poinded, 202. effect of arrestment by creditors of poinding creditor in hands of owner of goods, after warrant of sale obtained, 202. procedure in executing poindings, 203. circumstances sufBcient to stop poinding, 203. possession of goods after poinding, 204. stamped appraisement unnecessary, 204. sale of poinded goods, 204. equalising diligence when goods poinded, 205. competition betwixt writ of extent and poinding, 205. retention by seller of goods sold, but not delivered, as against a sub- purchaser, 206. poinding of such goods by seller, 206. competition betwixt arrester and poinder, 200. poinding of furniture conveyed but not delivered to trustees, 248. of furniture settled on wife by marriage-contract, 390. POSTNUPTIAL SETTLEMENTS, distinction betwixt antenuptial and postnuptial settlements, 404. effect in competition with creditors, 405. eifect of discharge by wife without consideration of provisions in ante- nuptial contract, 405. effect of postnuptial provision to wife in addition to antenuptial pro- vision, 405. provisions to wife and children of second marriage, 406. effect of security for antenuptial provision granted when husband in- solvent, 407. See Bonds of Peovision. POWER to burden in conveyances in liferent and fee, 377-381. for children's provisions, 381. completion of title, 502. PRECEPT OF CLARE CONSTAT, 503. Digitized by Microsoft® INDEX. 597 PEBCEPT from Chancery, 503. PRECEPT OF SASINE, 291. See OBiGiifAL Chaktek— Sasinb. PKE-EMPTION, clause of, 276. PRESCRIPTION, positive, 308. possession by ieir on apparency, 309. interruption, 309. prescriptive title in feudal subjects of purchaser, heir, or adjudger, 308. nature of possession to found prescription, 309. whether purchaser entitled to reject defective title fortified by pre- scription, 312. requisites to prescribe a right to property as part and pertinent, 273. consolidation by, 389. of arrestments, 218. of bills, 188. of cautionary obligations, 132. of services, 505. PRIVILEGED WRITINGS, enumeration of, and reasons why privileged, 18. effect of bond written and subscribed by debtor but not bearing to ba holograph, 19. legal presumption with respect to unsigned holograph writs, 19. effect of unattested holograph writs, 20. distinction between attested deeds and holograph writs with respect to erasures, 20. holograph obligations by unmarried women, 21. unattested holograph settlement of heritage in question with granter's heir, 21. deed founded on as holograph, on whom onus probandi, 21. privileges of writings in re mercatoria, 22. bequests in improbative writings referred to in a formal deed, 22. See FoEBiGN Deeds. PROHIBITION, against alienation, 277. against subinfeudation, 278. PUBLIC OFFICES, attachment of, 62. attachment of salaries, 62. PURCHASE, of lawsuits, 64. PURPRESTUEB, 261. QUIA EMPTORES TERR ARUM, 314. QUOT OP TESTAMENTS, 480. RANKING AND SALE, objects of process, 371. Digitized by Microsoft® 598 INDEX. RANKING AND SALE, Continued^ qualifications of pursuer, 371. leading conclusions of summons, 371 . who are called as defenders, 372. all the lands belonging to debtor must be included in summons, 872. what sufScient proof of debtor's bankruptcy, 372. eifeot of death of pursuer or defender during dependence of action, 372. completion of purchaser's title, 373. RATIFICATION, of deeds by married women, 51-52, RECONVENTION, principle of, 209. RECOGNITION, 261. REFERENCE, to recorded deed for conditions, 319. See Entails. REFUTATION, of feu, 284. REGALIA, majora and minora, 273. REGISTRATION, clause of, 94. origin of, 94. principles on which diligence on registered deed proceeds, 94. reasons for supposition that attendance of parties to consent to de- cree of registration was observed, 95. English practice analogous to Scotch decree of registration, 96. meaning of words " and for greater security I consent, &c.," 96. meaning of blant and " &c.," 96. deeds formerly not registrable after death of the parties, 96. deeds registrable without clause, 97 duration of charge on registered deed, 97. enumeration of registers for publication, 98. local registers and instruments registrable in them, 98. provisions for security of local registers, 98. when must deed be recorded after presentation, 99. borrowing of deeds after being given in for registration, 99. conditions of borrowing, 99. action against trade protection society for publishing list of dis- honoured bills, 100. of sasine and conveyance. See Sasihe — Disposition— Disposition and ASSIONATION. REGRESS, letters of, 532. REI INTERVENTUS, 71. See Homologation. RELIEF, casualty of, 262. Digitized by Microsoft® INDEX. 599 EELIEF, Continued^ of co-obligant. See Assignation. of cautioner. See Cahtionaky Obligations. KELINQUISHMENT, of superiorities, 523. RESIGNATION, charter of, 329. proTisions of Titles Act as to entry by resignation where lands held of subject-superior, 329. superior not entitled in all cases to insist on insertion of tenendas and reddendo in charters by progress, 330. charter of resignation and confirmation combined, 331. crown writ of resignation, 353. See Completion of Disponee's Title. ad remanentiam, what meant by, 340. steps necessary for completion, 340. changes introduced by Infeftment Act, Lands Transference Act, and Titles Act, 341. consolidation of property with entailed superiority, 342. See Completion of Disponee's Title. RESPONDENTIA, bond of, 252. RETURN, clause of, 44Y. REVERSION, eik to, 533 REVOCATION. See Testament. ROYAL BURGH, bond to, 121. SASINE, definition and eflfect of, 292. when introduced into Scotland, 292. ceremony of infeftment under old form, 293. clauses of sasine in old style, 293. year of era and sovereign's reign, 293. registration within sixty days, 294. insertion of bailie's name, 294. insertion of precept, 295. specification of symbols, 295. disconformity of precept with dispositive clause, 296. effect where grantee not named in precept, 296. infeftment to a company, 296. on a general conveyance, 297. precept for infeftment in fee authorises infeftment in liferent, 297. cases where separate acts of infeftment necessary, 298. "respectively and successively," 298. clause of union, 298-299. Digitized by Microsoft® 600 INDEX. SASINE, Conimund— docquet, words held indispensable, 299. subscription of witnesses, 299. effect of erasures in sasines, 300. effect where testing clause of warrant not filled up, 300. changes in form of sasine introduced by Infeftment Act, 800. clauses of sasine in new style, 301 . provisions of statutes relative to registration, 301. registration of conveyance equivalent to sasine, 303. essentials in recording sasine or conveyance, 303. marginal additions in record, 804. time within which sasines or oonveyances^must be recorded, 804-504. correction of error in recording conveyance or in warrant, 304. criterion for fixing date of registration, 305. effect of unrecorded sasine, 305. sasine propriis manibus, 306. sasine on disposition and assignation, 334. See Chaetee, Oeiginal. SEARCH OF INCUMBRANCES, registers to be searched, 310. burdens which a search may not disclose, 310. SECURITIES, over corporeal moveables, 249 SEPTENNIAL LIMITATION, requisites of Act 1695, c. 5, 132. obligations not falling under Act, 132. mode of excluding limitation, 133. effect of renunciation, 133. effect of payment of interest after, or of giving a charge within, the seven years, 135. SEQUESTRATION, cases in which sequestration awarded, 361. persons ineligible to trusteeship, 361. procedure for vesting bankrupt's estate in trustee, 362. effect of act and warrant of confirmation in favour of trustee, 362. completion of trustee's title, 363. eifect of holder of bill receiving payment from bankrupt in ignorance of sequestration, 366. trustee's powers of sale, 366. purchase of trust property by creditor or trustee or adjudger selling, 367. SERVITUDES, positive and negative, 274. SERVICE OF HEIRS, 486. terms descriptive of heirs, 486. nature and object of special and general service, 489. rights transmitted without service, 490. Digitized by Microsoft® INDEX. 601 SEEVICE OP HEIRS, Continued^ procedure before Service of Heirs Act, 490. heads of brieve in special service, 491. in general service, 491. procedure in expeding special service, 492. procedure in expeding genera] service, 492. what must be proved in special service, 493. what must he proved in general service, 493. when necessary to serve in Sheriff-court of Chancery, 498. advocation and jury trial, 493. service excluded hy prior service, but not by precept of dare constat, 493. service unnecessary to give heir title to reduce a prior service, 493. service must he in proper character, 493. general service as heir of provision must specify deed, 495. services in cases of conditional institution and substitution, 495. completion of title where disponer has instituted himself or his heirs, 498. completion of title where institute is not named, but is called as heir- general, 499. completion of title where destination is to one in liferent and heirs unnamed in fee, 500. precept of clare constat, 503. precept from chancery, 503. writs of clare constat, 508. how long precepts of clare constat and chancery precepts available for infeftment before Transference Act and Titles Act, 504. description of heir's character in precepts of clare, 505. prescription of services, 505. effect of precept of clare to heir in liferent and his son in fee, 505. completion of heir's title to burgage subjects, 506. modes for limiting heir's responsibility to value of succession, 507. service cum beneficio inventarii, bOI. cases on completion of real right in person of heir, 507. SHEWING THE HOLDING, action of, 282. SHIPS, arrestment of, 207. object and particulars of certificate of registry, 249. number of shares into which ship divisible, 250. number of individnals who may be registered as owners, 250. how ship or share transferred, 250. voluntary securities over ships how constituted, 250. criterion of preference in a competition of securities, 250. mortgage by owners, 250. by agent in a foreign port, 261. bond of bottomry, 251. Digitized by Microsoft® 602 INDEX. SHIPS, Continued— bond of respondentia, 252. charter-party, 252. SOLEMNITIES OF DEEDS, their design, 1. most ancient mode of authentication, 1. solemnity of sealing, 2. authenticity of sealed deed, how ascertained, 2. when and for what reason subscription introduced as solemnity, 3. cause of disuse of sealing, 3. statutes relating to subscription, 3. leading provisions of Act 1681, c. 5, 4. statutes requiring insertion of writer's name, 5. statutes requiring authentication by witnesses, 6. ancient form of executing deed-rolls, 6. authority for executing deeds book-wise, 6. side-scrihing, 7. insertion of writer's name and designation in body of deed, 8. insertion of witnesses' names, 9. subscription by party or witnesses by initials, 9. partial subscription, 9. subscription by mark, 10. subscription from copy, 10. subscription on tracing, 11. where granter's hand led, 11. notarial execution, 11. notary's docquet, 12. parish ministers acting as notaries in testaments, 12. deeds requiring two notaries, 12. deeds by blind persons. Earl of Fife's case, 13. reading over of deed, 14. persons incapable of acting as witnesses, 14. when must witnesses subscribe, 14. effect of vitiations, 15. effect of erasures, 15. marginal additions in deeds executed in duplicate, 16. effect of marginal additions cut away or left unsigned, 16. effect of marginal additions in public records, 304. effect of deed wanting place and date of subscription, 16. effect of deeds where witnesses neither saw the grantor subscribe nor heard him acknowledge subscription, 17. correction of errors in testing clause after deed presented for registra- tion, 17. effect of obligation in testing clause unconnected with attestation, 17. when may testing clause be filled up, 18. STES SUCCESSIONIS, sale or adjudication of, 58. Digitized by Microsoft® INDEX. 603 STAMPS, different kinds of,- 78. when of improper denomination, 78. receipt by factor to constituent, 79, stamps for diiferent deeds and writings, 79. after stamping, 81. of indentures, 215. acknowledgments requiring stamps, 82. effect of unstamped bill of sale of ship, and letter acknowledging re- ceipt of price, 83 who liable for expense of, after stamping, 83. objection of want of stamp pars Judicis, 84. cases in which unstamped documents may be used judicially, 85. legal effect of after stamping, 86. unstamped foreign deed, 86. SUBINFEUDATION, 314. prohibition against, 278 See Disposition. SUBMISSION, nature of, 216. verbal submission, 217. submission by a minor or a company, 217. by a factor loco iutoHs or trustees or executors, ?i 7. by a married woman, 217. by an agent, 218. arbiter must be named, 218. interest or relationship of arbiter, 219. marriage of female submitter, 220. effect of bankruptcy of one of the parties, 220. expiration of submission, 220. submissions which do not fall by death, 221. prorogation by arbiter or oversman, 222-225. time within which submission must be prorogated, 223. assignation of claim during dependence of submission, 223. obligation on arbiter to decide, 223. nomination of oversman, 228. power of majority to decide, 224. what necessary to warrant oversman to proceed, 224. how attendance of witnesses enforced, 225. interim decrees, 225. remuneration of arbiters, 226. expenses of parties, 226. clause of registration of submission, 227. decree-arbitral, 227. opinion of counsel upon mutual memorial, 227. when extraneous evidence admissible, 228. delivery of decree-arbitral, 228. reduction of decree-arbitral, 229. Digitized by Microsoft® 604 INDEX. SUBMISSIONS, Continued— refusal to receive evidence or to hear parties, 229. award ultra vires compromissi, 230. effect of submission with regard to prescription, 230. SUNDAY, deed or diligence executed on, 63. bill drawn or accepted on, 168. SUPERIOR'S ESTATE, 260. See Chabtek, Oeiginai. SUPERIORITY, interjection of mid-superior, 337. splitting of superiority, 337. peculiar clauses of disposition, 338. See CoMPLBTiON OF Disponie's Title. SUPERIORITIES, relinquishment of, 523. SYMBOLS of infeftment under old form, 292. TACITURNITY, 159. TEROE, 385. TESTAMENT, parish ministers may act as notaries, 12. may be executed by one notary, 18. effect of foreign testament unsealed, 24. bequest of heritage in foreign will, 24. effect of revocation by foreign will of conveyance of Scotch heritage, 26. peculiarity of form of testament, 413. effect when several testaments left by deceased, 414. revocation of delivered will, 414. discharge of debt by delivered will, 414. revocation of mutual settlement, 414. effect of condition si sine liberis decesserit on testament to a stranger, 415. executors not now entitled to a share of executry, 416. distinction betwixt conveyances mortis causa of moveables and heri- tage, 416. effect where^heritage burdened with legacies by testament to heir, 416. burdening heir with debts and legacies, 416. deeds which are and are not reducible ex capite lecti, 417. legacies in improbative writing referred to in testament, 22. rules of practice as to deeds of settlement exposed to risk of challenge on ground of facility, 53. See Deeds by Minokb — ^Delivebt oe Deeds. TESTAMENT-TEST AMENTAR, 481. testament-dative, 481. TESTING CLAUSE. See Solemnities of Deeds. THELLUSSON ACT, operation of, 428. Digitized by Microsoft® INDEX. 605 TICKET, 109. TITLES. See Completion of Titles. stipulation that purchaser shall take titles as they stand, 311. TRUST-DISPOSITION FOE CEEDITORS, object of, 359. enumeration of creditors in deed, 359. diligence by non-acceding creditors, 359. sequestration at instance of non-acceding creditors, 359. purpose and eifeot of deed of accession, 360. trustee liable in implement of truster's obligation to superior, 360. effect of conveyance to trustee on nature of creditors' rights, 360. TEUST-DISPOSITION AND SETTLEMENT, destination to acceptors and survivors, 422. trustees sine quo non, 423. quorum, 423. failure of trustees or of instructions, 424. accresion of trust to survivors, 425. completion of trust-disponee's title where new trustees appointed by codicil without dispositive words, 425. whether beneficiaries' right heritable or moveable, 426. deed of directions separate from trust-deed, 427. accumulation of trust funds for purchase of land for heir, 428. operation of Thellusson Act, 428. payment of truster's debts, 429 rights of residuary legatee and annuitant, 429. residuary legatee burdened with annuity, 480. trustee's power to make up titles, 430. power of sale, 430. legacy duty, when exigible from heritage, 430. purchase of superiority or feu-duties under directions to purchase lands, 431. liability of trustees for factors, 431. assumption of additional trustees, 432. personal liability of trustees, 482. necessity for making up titles by factor loco tutoris or judicial factor on a lapsed trust, 433. resignation of trustees, 433. completion of title of judicial factor on trust-estate, 433. See Testament — Teustees. TRUST EIGHTS, effect of Entail Amendment Act on, 475. TRUSTEES, liability of, 120. purchase of trust property by trustees, 65. charges of law-agent acting as trustee, 66. warrandice by trustees, 324. Digitized by Microsoft® 606 INDEX. UNLAWFUL CONTRACTS, when implemented, 55. conditions annexed to provisions that grantee shall marry only with consent of persons named, 56. sale or adjudication of spes successionis, 58. obligations arising ont of wagers, 58. bill to facilitate bankrupt's discharge, 58. bill for gambling debt, 60. agreement not to carry on trade in country void, in particular place valid, 60. action for price of contraband goods, 60. obligations by person under attainder, 61. usury laws, 62. sale or adjudication of public offices, 62. assignation or attachment of salaries of public oflScers, 62. sale of army commissions, 63. stipulation that parochial schoolmaster shall hold ofSce during plea- sure of minister and heritors, 63. agreement by minister not to apply for augmentation, 63. bond given in exchange for presentation to church, 63. purchase of law suits and pactum de quota litis, 63. purchase by creditor of subject sold under bond, 64. purchase of trust-estate by trustees, do, 65. contract for furnishings between public company and director, 65. charges by law agent acting as trustee, 66. VASSAL'S ESTATE, 260. VITIATIONS. See Solemnities of Deeds. in holograph writs, 20. in bills, 186. in sasines, 300. WADSET, 532. WAGERS, 58. WARDHOLDING, 259. casualty of Ward, 261 WARRANDICE, definition of, 88. different kinds of, 89. warrandice in assignation of debt, 89. eviction when warrandice from fact and deed, 90. in gratuitous conveyance, 91. when granted expressly exempt from warrandice, 91. warrandice in widow's jointure, 91. claim upon warrandice, when does it arise, 92. intimation of action of eviction, 92. effect of pleas, 92. Digitized by Microsoft® INDEX. 607 WARRANDICE, Continued- expenses of defending action of eviction, 93. loss in consequence of latent defect, 93. sale of lands liable in real warrandice, 312. warrandice by trustees, 324. See Chaetee, Oeiginal— Disposition. WARRANT OF ATTORNEY to confess judgment, 96. WARRANT OP REGISTRATION on conveyance, 803. on assignation of unrecorded conveyance, 836. on deed containing clause of direction, 325. on conveyance to parent in liferent and heirs unnamed in fee, 398. WITNESSES — instrumentary. See Solemnities of Deeds. WRITER'S NAME. See Solemnities of Deeds. WRITS, assignation of. See Chaetek, Oeiginal and Disposition. of dare constat. See Sbkvice. of confirmation by a subject superior, 327. by the Crown, 353. of investiture, 523. of resignation by a subject superior, 329. JOHN BAXTEE, PEINTBE, BLDEE STEEET, EDINEUBGH. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®