TEINDS, or tithes, are that liquid proportion of our rents or goods, which is due to churchmen, for performing divine service, or exercising the other spiritual functions proper to their several offices. Most of the canonists affirm, that the precise proportion of a tenth, not only of the fruits of the ground, but of what is acquired by personal industry, is due to the Christian clergy, of divine right, which they therefore call the proper patrimony of the church; though it is certain that tithes, in their infancy, were given, not to the clergy alone, but to lay-monks who were called pau-peres, and to other indigent persons. Charles the Great was the first secular prince who acknowledged this right in the church. It appears to have been received with us, as far back as David I.
2. The person employed by a cathedral church or monastery to serve the cure in any church annexed was called a vicar, because he held the church, not in his own right, but in the right or vice of his employers; and so was removable at pleasure, and had no share of the benefice, other than what they thought fit to allow him: but, in the course of time, the appellation of vicar was limited to those who were made perpetual, and who got a stated share of the benefice for their incumbency; from whence arose the distinction of benefices into parsonages and vicarages.
3. Parsonage teinds are the teinds of corn; and they are so called because they are due to the parson or other titular of the benefice. Vicarage teinds are the small teinds of calves, lint, hemp, eggs, &c. which were commonly given by the titular to the vicar who served the cure in his place. The first sort was universally due, unless in the case of their intendment to laics, or of a pontifical exemption; but, by the customs of almost all Christendom, the lesser teinds were not demanded where they had not been in use to be paid. By the practice of Scotland, the teinds of animals, or of things produced from animals, as lambs, wool, calves, are due though not accustomed to be paid; but roots, herbs, &c. are not titheable, unless use of payment be proved: neither are personal teinds (i. e. the tenth of what one acquires by his own industry) acknowledged by our law: yet they have been found due, when supported by 40 years possession.
4. The parson who was intitled to the teind of corns, made his right effectual, either by accepting of a certain
tain number of teind-holls yearly from the proprietor in satisfaction of it; or, more frequently, by drawing or separating upon the field his own tenth part of the corns, after they were reaped, from the flock or the remaining nine-tenths of the crop, and carrying it off to his own granaries; which is called drawn teind.
5. After the reformation, James VI. considered himself as proprietor of all the church-lands; partly because the purposes for which they had been granted were declared superfluous; and partly, in consequence of the resignations which he, and queen Mary his mother, had procured from the beneficiaries: and even as to the teinds, though our reformed clergy also claimed them as the patrimony of the church, our sovereign did not submit to that doctrine farther than extended to a competent provision for ministers. He therefore erected or secularised several abbacies and priories into temporal lordships; the grantees of which were called sometimes lords of erection, and sometimes titulars, as having by their grants the same title to the erected benefices that the monasteries had formerly.
6. As the crown's revenue suffered greatly by these erections, the temporality of all church benefices (i. e. church lands) was, by 1587. c. 29. annexed to the crown. That statute excepts from the annexation such benefices as were established before the reformation in laymen, whose rights the legislature had no intention to weaken. Notwithstanding this statute, his majesty continued to make farther erections, which were declared null by 1592. c. 119. with an exception of such as had been made in favour of lords of parliament since the general act of annexation in 1587.
7. King Charles I. soon after his succession, raised a reduction of all these erections, whether granted before or after the act of annexation, upon the grounds mentioned at length by Mr Forbes in his treatise of tithes, p. 259. At last the whole matter was referred to the king himself by four several submissions or compromises; in which the parties on one side were the titulars and their tacksmen, the bishops with the inferior clergy, and the royal boroughs, for the interest they had in the teinds that were gifted for the provision of ministers, schools, or hospitals within their boroughs; and, on the other part, the proprietors who wanted to have the leading of their own teinds. The submission by the titulars contained a surrender into his majesty's hands of the superiorities of their several erections.
8. Upon each of these submissions his majesty pronounced separate decrees arbitral, dated Sept. 2. 1629, which are subjoined to the acts of parliament of his reign. He made it lawful to proprietors to sue the titulars for a valuation, and if they thought fit for a sale also, of their teinds, before the commissioners named or to be named for that purpose. The rate of teind, when it was possessed by the proprietor jointly with the flock, for payment of a certain duty to the titular, and so did not admit a separate valuation, was fixed at a fifth part of the constant yearly rent, which was accounted a reasonable surrogatum, in place of a tenth of the increase. Where it was drawn by the titular, and consequently might be valued separately from the flock, it was to be valued as its extent should be ascertained upon a proof before the commissioners; but in this last valuation, the king directed the fifth part to be deducted from the proved teind, in favour of the proprietor,
which was therefore called the king's case. The proprietor suing for a valuation gets the leading of his own teinds as soon as his suit commences, providing he does not allow protestation to be extracted against him for not insisting.
9. Where the proprietor insisted also for a sale of his teinds, the titular was obliged to sell them at nine years purchase of the valued teind-duty. If the pursuer had a tack of his own teinds, not yet expired; or if the defender was only tackman of the teinds, and so could not give the pursuer an heritable right; an abatement of the price was to be granted accordingly by the commissioners.
10. There is no provision in the decrees-arbitral, for selling the teinds granted for the sustentation of ministers, universities, schools, or hospitals; because these were to continue, as a perpetual fund, for the maintenance of the persons or societies to whom they were appropriated; and they are expressly declared not subject to sale, by 1690. c. 30.—1693. c. 23. By the last of these acts, it is also provided, that the teinds belonging to bishops, which had then fallen to the crown upon the abolishing of episcopacy, should not be subject to sale as long as they remained with the crown not disposed of; nor those which the proprietor, who had right both to flock and teind, reserved to himself in a sale or feu of the lands. But, though none of these teinds can be sold, they may be valued.
11. The king, by the decrees-arbitral, declared his own right to the superiorities of erection which had been resigned to him by the submission, reserving to erection the titulars the feu-duties thereof, until payment by himself to them of 1000 merks Scots for every chaldar of feu-victual, and for each 100 merks of feu-duty; which right of redeeming the feu-duties was afterwards renounced by the crown. If the church-vassal should consent to hold his lands of the titular, he cannot thereafter recur to the crown as his immediate superior.
12. In explaining what the constant rent is by Rules for fixing the rent in the valuation of which the teind must be valued, the following rules are observed. The rent drawn by the proprietor from the sale of subjects, that are more properly parts teinds of the land than of the fruits, e. g. quarries, minerals, mosses, &c. is to be deducted from the rental of the lands; and also the rent of super-numerary houses, over and above what is necessary for agriculture; and the additional rent that may be paid by the tenant, in consideration of the proprietor's undertaking any burden that law imposes on the tenant, e. g. upholding the tenant's houses, because none of these articles are paid properly on account of the fruits. Orchards must also be deducted, and mill rent, because the profits of a mill arise from industry; and the corns manufactured there suffer a valuation as rent payable by the tenant, and therefore ought not to be valued a second time against the titular as mill-rent. The yearly expence of culture ought not to be deducted; for no rent can be produced without it: but, if an improvement of rent is made at an uncommon expence, e. g. by draining a lake, the proprietor is allowed a reasonable abatement on that account.
13. Notwithstanding the several ways of misapplying parochial teinds in the times of Popery, some few decrees, benefices remained entire in the hands of the parsons, &c.
The
The ministers planted in these, after the reformation, continued to have the full right to them, as proper beneficiaries: but a power was afterwards granted to the patron, to redeem the whole teind from such beneficiaries, upon their getting a competent stipend modified to them; which teind so redeemed, the patron is obliged to sell to the proprietor, at six years purchase.
14. Some teinds are more directly subject to an allocation for the minister's stipend than others. The teinds in the hands of the lay titular fall first to be allocated, who, since he is not capable to serve the cure in his own person, ought to provide one who can; and if the titular, in place of drawing the teind, has set it in tack, the tack-duty is allocated: this sort is called free teind. Where the tack-duty, which is the titular's interest in the teinds, falls short, the tack itself is burdened, or, in other words, the surplus teind over and above the tack-duty: but, in this case, the commissioners are empowered to recompense the tackman, by prorogating his tack for such a number of years as they shall judge equitable. Where this likewise proves deficient, the allocation falls on the teinds heritably conveyed by the titular, unless he has warranted his grant against future augmentations; in which case, the teinds of the lands belonging in property to the titular himself must be allocated in the first place.
15. Where there is sufficiency of free teinds in a parish, the titular may allocate any of them he shall think fit for the minister's stipend, since they are all his own; unless there has been a previous decree of locality: and this holds, though the stipend should have been paid immemorially out of the teinds of certain particular lands. This right was frequently abused by titulars, who, as soon as a proprietor had brought an action of sale of his teinds, allocated the pursuer's full teind for the stipend, whereby such action became ineffectual: it was therefore provided, that after citation in a sale of teinds, it shall not be in the titular's power to allocate the pursuer's teinds solely, but only in proportion with the other teinds in the parish.
16. Ministers glebes are declared free from the payment of teind. Lands cum decimis inclusis are also exempted from teind. But in order to exempt lands from payment of teind, it is necessary that the proprietor prove his right thereto, cum decimis inclusis, as far back as the above act of annexation 1587.
17. Teinds are debita fructuum, not fundi. The action therefore for bygone teinds is only personal, against those who have intermeddled, unless where the titular is infest in the lands, in security of the valued teind-duty. Where a tenant is, by his tack, bound to pay a joint duty to the landlord for stock and teind, without distinguishing the rent of each, his defence of a bona fide payment of the whole to the landlord has been sustained in a suit at the instance of a laic titular, but repelled where a churchman was pursuer. In both cases the proprietor who receives such rent is liable as intermeddler.
18. In tacks of teinds, as of lands, there is place for tacit relocation: to stop the effect of which, the titular must obtain and execute an inhibition of teinds against the tackman; which differs much from inhibition of lands (explained under the next section), and
is intended merely to interpell or inhibit the tackman from farther intermeddling. This diligence of inhibition may also be used at the suit of the titular, against any other possessor of the teinds; and if the tackman or possessor shall intermeddle after the inhibition is executed, he is liable in a spuilzie.
19. Lands and teinds pass by different titles: a disposition of lands, therefore, though granted by one who has also right to the teind, will not carry the teind, unless it shall appear from special circumstances that a sale of both was designed by the parties. In lands cum decimis inclusis, where the teinds are consolidated with the stock, the right of both must necessarily go together in all cases.
The constitution and transmission of feudal rights, and the burdens with which they are chargeable, being now explained, it remains to be considered how the rights may be affected at the suit of creditors by the diligence. Diligences are certain forms of law, whereby a creditor endeavours to make good his payment, either by affecting the person of his debtor, or by securing the subjects belonging to him from alienation, or by carrying the property of these subjects to himself. They are either real or personal. Real diligence is that which is proper to heritable or real rights; personal, is that by which the person of the debtor may be secured, or his personal estate affected. Of the first sort we have two, viz. inhibition and adjudication.
2. Inhibition is a personal prohibition, which passes by letters under the signet, prohibiting the party inhibited to contract any debt, or do any deed, by which any part of his lands may be aliened or carried off in prejudice of the creditor inhibiting. It must be executed against the debtor, personally, or at his dwelling-house, as summonses, and thereafter published and registered in the same manner with interdictions, (see No clxxxiii. 21.)
3. Inhibition may proceed, either upon a liquid obligation, or even on an action commenced by a creditor for making good a claim not yet sustained by the judge; which last is called inhibition upon a depending action. The summons, which constitutes the dependence, must be executed against the debtor before the letters of inhibition pass the signet; for no suit can be said to depend against one till he be cited in it as a defender: but the effect of such inhibition is suspended till decree be obtained in the action against the debtor; and in the same manner, inhibitions on conditional debts have no effect till the condition be purified. Inhibitions are not granted, without a trial of the cause, when they proceed on conditional debts. And though, in other cases, inhibitions now pass of course, the lords are in use to stay, or recall them, either on the debtor's showing cause why the diligence should not proceed, or even ex officio where the ground of the diligence is doubtful.
4. Though inhibitions, by their uniform style, disable the debtor from selling his moveable as well as his heritable estate, their effect has been long limited to heritage, from the interruption that such an embargo upon moveables must have given to commerce;
so that debts contracted after inhibition may be the foundation of diligence against the debtor's person and moveable estate. An inhibition secures the inhibitor against the alienation, not only of lands that belonged to his debtor when he was inhibited, but of those that he shall afterwards acquire: but no inhibition can extend to such after-purchases as lie in a jurisdiction where the inhibition was not registered; for it could not have extended to these though they had been made prior to the inhibition.
5. This diligence only strikes against the voluntary debts or deeds of the inhibited person: it does not restrain him from granting necessary deeds, i. e. such as he was obliged to grant anterior to the inhibition, since he might have been compelled to grant these before the inhibitor had acquired any right by his diligence. By this rule, a wadsetter or annual renter might, after being inhibited, have effectually renounced his right to the reverser on payment, because law could have compelled him to it: but to secure inhibitors against the effect of such alienations, it is declared by act of sederunt of the court of session, Feb. 19. 1680, that, after intimation of the inhibition to the reverser, no renunciation or grant of redemption shall be sustained, except upon declarator of redemption brought by him, to which the inhibitor must be made a party.
6. An inhibition is a diligence simply prohibitory, so that the debt, on which it proceeds, continues personal after the diligence: and consequently, the inhibitor, in a question with anterior creditors whose debts are not struck at by the inhibition, is only preferable from the period at which his debt is made real by adjudication: and where debts are contracted on heritable security, though posterior to the inhibition, the inhibitor's debt, being personal, cannot be ranked with them; he only draws back from the creditors ranked the sums contained in his diligence. The heir of the person inhibited is not restrained from alienation by the diligence used against his ancestor; for the prohibition is personal, affecting only the debtor against whom the diligence is used.
7. Inhibitions do not, of themselves, make void the posterior debts or deeds of the person inhibited; they only afford a title to the user of the diligence to set them aside, if he finds them hurtful to him: and even where a debt is actually reduced ex capite inhibitionis, such reduction, being founded solely in the inhibitor's interest, is profitable to him alone, and cannot alter the natural preference of the other creditors.
8. Inhibitions may be reduced upon legal nullities, arising either from the ground of debt or the form of diligence. When payment is made by the debtor to the inhibitor, the inhibition is said to be purged. Any creditor, whose debt is struck at by the inhibition, may, upon making payment to the inhibitor, compel him to assign the debt and diligence in his favour, that he may make good his payment the more effectually against the common debtor.
SECT. XII. Of comprising, adjudications, and judicial sales.
HERITABLE rights may be carried from the debtor to the creditor, either by the diligence of apprising (now adjudication), or by a judicial sale carried on before the court of session. Apprising, or comprising,
was the sentence of a sheriff, or of a messenger who was specially constituted sheriff for that purpose, by which the heritable rights belonging to the debtor were sold for payment of the debt due to the appriser; so that appraisings were, by their original constitution, proper sales of the debtor's lands to any purchaser who offered. If no purchaser could be found, the sheriff was to apprise or tax the value of the lands by an inquest (whence came the name of apprising), and to make over to the creditor lands to the value of the debt. A full history of appraisings will be found in the beginning of Mr Erskine's large Institute under this title; it being considered as unnecessary to enter into a deduction now no longer necessary, as by the act 1672 adjudications were substituted in their place.
2. That creditors may have access to affect the estate of their deceased debtor, though the heir should stand off from entering, it is made lawful (by 1540, c. 106.) for any creditor to charge the heir of his debtor to enter to his ancestor (year and day being past after the ancestor's death), within 40 days after the charge; and if the heir fails, the creditor may proceed to apprise his debtor's lands, as if the heir had been entered. Custom has so explained this statute, that the creditor may charge the heir, immediately after the death of his ancestor, provided that the summons which is to be founded on the charge be not raised till after the expiry both of the year and of the 40 days next ensuing the year, within which the heir is charged to enter. But this statute relates only to such charges on which apprising is to be led against the ancestor's lands; for, in those which are to be barely the foundation of a common summons or process against the heir, action will be sustained if the year be elapsed from the ancestor's death before the execution of the summons, though the 40 days should not be also expired. Though the statute authorises such charges against majors only, practice has also extended it against minors, and the rule is extended to the case where the heir is the debtor. One must, in this matter, distinguish between a general and a special charge. A general charge serves only to fix the representation of the heir who is charged, so as to make the debt his which was formerly his ancestor's: but a special charge makes up for the want of a service (No clxxx. 25.); and states the heir, filione juris, in the right of the subjects to which he is charged to enter. Where, therefore, the heir is the debtor, a general charge for fixing the representation against him is unnecessary, since the only concern of the creditor is, that his debtor make up titles to the ancestor's estate, which is done by a special charge: but where the deceased was the debtor, the creditor must first charge his heir to enter in general, that it may be known whether he is to represent the debtor: if he does not enter within forty days, the debt may be fixed against him by a decree of constitution; after which, the heritable rights belonging to the ancestor will fall to be attached; in doing which, the diligence to be used is different, according to the state of the titles in the ancestor's person: for if the ancestor stood vested by investiture, the heir must be charged to enter heir in special; but if the ancestor had but a personal right to the subjects (i. e. not perfected by feisin), which would have been carried to the heir by a general service, then what is called a general special charge must be given to the heir. These charges, either
ther special or general special, as the circumstances of the case may require, are by the statute 1540 made equivalent to the heir's actual entry; and therefore an adjudication led after the inducio of the charges are elapsed, effectually carries to the creditor the subjects to which the heir was charged to enter.
3. Apprisings in course of time underwent many changes in their form and effect, till at length, by act 1672, c. 19. adjudications were substituted in their place, and are carried on by way of action before the court of session. By that statute, such part of the debtor's lands is to be adjudged as is equivalent to the principal sum and interest of the debt, with the composition due to the superior and expences of infestment, and a fifth part more in respect the creditor is obliged to take land for his money. The debtor must deliver to the creditor a valid right of the lands to be adjudged, or transumpt thereof, renounce the possession in his favour, and ratify the decree of adjudication: and law considers the rent of the lands as precisely commensurate to the interest of the debt; so that the adjudger lies under no obligation to account for the surplus rents. In this, which is called a special adjudication, the legal, or time within which the debtor may redeem, is declared to be five years; and the creditor attaining possession upon it can use no farther execution against the debtor, unless the lands be evicted from him.
4. Where the debtor does not produce a sufficient right to the lands, or is not willing to renounce the possession, and ratify the decree (which is the case that has most frequently happened), the statute makes it lawful for the creditor to adjudge all right belonging to the debtor in the same manner, and under the same reversion of ten years, as he could, by the former laws, have appraised it. In this last kind, which is called a general adjudication, the creditor must limit his claim to the principal sum, interest, and penalty, without demanding a fifth part more. But no general adjudication can be insisted on, without libelling in the summons the other alternative of a special adjudication; for special adjudications are introduced by the statute in the place of apprisings; and it is only where the debtor refuses to comply with the terms thereof, that the creditor can lead a general adjudication.
5. Abbreviates are ordained to be made of all adjudications, which must be recorded within 60 days after the date of the decree. In every other respect, general adjudications have the same effects that apprisings had: adjudgers in possession are accountable for the surplus rents; a citation in adjudications renders the subject litigious; superiors are obliged to enter adjudgers; the legal of adjudications does not expire during the debtor's minority, &c. Only it may be observed, that though apprisings could not proceed before the term of payment, yet where the debtor is vergens ad inopiam, the court ex nobili officio admit adjudication for the debt before it be payable. But this sort being founded solely in equity, subsists merely as a security, and cannot carry the property to the creditor by the lapse of any length of time.
6. There are two kinds of adjudication, which took place at the same time with apprisings, and still obtain; viz. adjudications on a decree cognitionis causa, otherwise called contra hereditatem jacentem; and adjudications in implement. Where the debtor's apparent
heir, who is charged to enter, formally renounces the succession, the creditor may obtain a decree cognitionis causa; in which, though the heir renouncing is cited for the sake of form, no sentence condemnatory can be pronounced against him, in respect of his renunciation; the only effect of it is to subject the hereditas jacentis to the creditor's diligence.
7. Adjudications contra hereditatem jacentem, carry not only the lands themselves that belonged to the deceased, but the rents thereof fallen due since his death; for these, as an accessory to the estate belonging to the deceased, would have descended to the heir if he had entered, which rule is applied to all adjudications led on a special charge. This sort of adjudication is declared redeemable within seven years, by any co-adjudging creditor, either of the deceased debtor or of the heir renouncing. The heir himself, who renounces, cannot be restored against his renunciation, nor consequently redeem, if he be not a minor. But even a major may redeem indirectly, by granting a simulative bond to a confident person; the adjudication upon which, when conveyed to himself, is a good title to redeem all other adjudications against the lands belonging to his ancestor.
8. Adjudications in implement are deduced against those who have granted deeds without procuratory of resignation or precept of seisin, and refuse to divest themselves; to the end that the subject conveyed may be effectually vested in the grantee. These adjudications may be also directed against the heir of the grantor, upon a charge to enter. Here there is no place for a legal reversion; for, as the adjudication is led for completing the right of a special subject, it must carry that subject as irredeemably as if the right had been voluntarily completed.
9. All adjudications led within year and day of that one which has been made first effectual by seisin (where seisin is necessary), or exact diligence for obtaining seisin, are preferable pari passu. The year and day runs from the date of the adjudication, and not of the seisin or diligence, for obtaining it. After the days of that period, they are preferable according to their dates. All the co-adjudgers within the year are preferable pari passu, as if one adjudication had been led for all their debts. This makes the seisin or diligence on the first adjudication a common right to the rest, who must therefore refund to the owner of that diligence his whole expence laid out in carrying on and completing it. And though that first adjudication should be redeemed, the diligence upon it still subsists as to the rest. This pari passu preference, however, does not destroy the legal preference of adjudications led on debita fundi (see No clix. 15.); nor does it take place in adjudications in implement.
A new sort of adjudication has been lately introduced into the law of Scotland by the act of the 23d Geo. III. for rendering the payment of the creditors of insolvent debtors more equal and expeditious. Among the many other provisos in that statute for expediting the payment of creditors, and lessening the expence of diligence against the debtor's estate, it is enacted, That upon an order from the court of session or lord ordinary, the bankrupt shall be bound to execute a disposition or dispositions, making over to the trustee or trustees chosen by the creditors the whole estate real and personal, wherever situated; and in case
of the bankrupt's refusal, or of the order not being complied with from any other reason, the court or the lord ordinary shall, upon the application of the trustee, issue an act or decree, adjudging the property of the whole sequestrated estate to be in the trustee for behoof of the creditors; which shall have the same effect as if the bankrupt had executed the conveyance; and by a subsequent clause in the statute, it is enacted, that this disposition of the heritable estate, together with the order of the court or lord ordinary on which it proceeds, or, failing thereof, the decree of adjudication of the court or the lord ordinary, shall within 60 days of the date thereof be registered in the register of abbreviates of adjudications; and shall have the effect to intitle the trustee for behoof of the whole creditors to rank in the same manner upon the heritable estate as if it had been a proper decree of adjudication, obtained at the date of the interlocutor awarding the sequestration; accumulating the whole debts, principal and interest, as at that period, and adjudging for security or payment thereof, so as to rank pari passu with any prior effectual adjudication, and within year and day of the same. By this act also, in order to lessen the number of adjudications, and consequently the expence upon a bankrupt estate, it is declared, that intimation shall be made of the first adjudication which is called, so as all creditors who are in readiness may, within such a reasonable time as may be allowed, not exceeding twenty sederunt days, produce their grounds of debt, and be conjoined in the decree to follow on said first adjudication. At the same time it may be proper to mention, that this act is only temporary; and after eight years experience, will probably suffer very considerable alterations, when it shall become necessary to digest another bankrupt law for Scotland.
10. Before treating of judicial sales of bankrupts estates, the nature of sequestration may be shortly explained, which is a diligence that generally ushers in actions of sale. Sequestration of lands is a judicial act of the court of session, whereby the management of an estate is put into the hands of a factor or steward named by the court, who gives security, and is to be accountable for the rents to all having interest. This diligence is competent, either where the right of the lands is doubtful, if it be applied for before either of the competitors has attained possession, or where the estate is heavily charged with debts: but, as it is an unfavourable diligence, it is not admitted, unless that measure shall appear necessary for the security of creditors. Subjects not brought before the court by the diligence of creditors, cannot fall under sequestration; for it is the competition of creditors which alone founds the jurisdiction of the court to take the disputed subject into their possession.
11. The court of session who decrees the sequestration has the nomination of the factor, in which they are directed by the recommendation of the creditors. A factor appointed by the session, though the proprietor had not been infest in the lands, has a power to remove tenants. Judicial factors must, within six months after extracting their factory, make up a rental of the estate, and a list of the arrears due by tenants, to be put into the hands of the clerk of the process, as a charge against themselves, and a note of such alterations in the rental as may afterwards happen; and must
also deliver to the clerk annually a scheme of their accounts, charge and discharge, under heavy penalties. They are, by the nature of their office, bound to the same degree of diligence that a prudent man adhibits in his own affairs; they are accountable for the interest of the rents, which they either have, or by diligence might have recovered, from a year after their falling due. As it is much in the power of those factors to take advantage of the necessities of creditors, by purchasing their debts at an undervalue, all such purchases made either by the factor himself, or to his behoof, are declared equivalent to an acquittance or extinction of the debt. No factor can warrantably pay to any creditor, without an order of the court of session; for he is, by the tenor of his commission, directed to pay the rents to those who shall be found to have the best right to them. Judicial factors are intitled to a salary, which is generally stated at five per cent. of their intromissions: but it is seldom ascertained till their office expires, or till their accounting; that the court may modify a greater or smaller salary, or none, in proportion to the factor's integrity and diligence. Many cases occur, where the court of session, without sequestration, name a factor to preserve the rents from perishing; e.g. where an heir is deliberating whether to enter, where a minor is without tutors, where a succession opens to a person residing abroad; in all which cases the factor is subjected to the rules laid down in act of sederunt, Feb. 13. 1730.
As to sequestrations under the bankrupt act before recited, the reader must necessarily be referred to the act itself; for being only temporary, as before mentioned, it seems quite inconsistent with the plan of this work to enter into a minute detail of the different regulations thereby laid down in cases of sequestration under it.
12. The word bankrupt is sometimes applied to persons whose funds are not sufficient for their debts; and bankrupt sometimes, not to the debtor, but to his estate. The estates of court of session are empowered, at the suit of any real creditor, to try the value of a bankrupt's estate, and sell it for the payment of his debts.
13. No process of sale, at the suit of a creditor, can proceed without a proof of the debtor's bankruptcy, or at least that his lands are so charged with debts that no prudent persons will buy from him; and therefore the summons of sale must comprehend the debtor's whole estate. The debtor, or his apparent heir, and all the real creditors in possession, must be made parties to the suit; but it is sufficient if the other creditors be called by an edictal citation. The summons of sale contains a conclusion of ranking or preference of the bankrupt's creditors. In this ranking, first and second terms are assigned to the whole creditors for exhibiting in court (or producing) their rights and diligences; and the decree of certification proceeding thereupon, against the writings not produced, has the same effect in favour of the creditors who have produced their rights, as if that decree had proceeded upon an action of reduction-improbation. See No clxxxiii. 3. By the late bankrupt act, the sale may precede the ranking of the creditors, unless the court, upon application of the creditors, or any of them, shall find sufficient cause to delay the sale. The irredeemable property of the lands is adjudged by the court to the highest of-
ferer at the sale. The creditors receiving payment must grant to the purchaser absolute warrantice, to the extent of the sum received by them; and the lands purchased are declared disburdened of all debts or deeds of the bankrupt, or his ancestors, either on payment of the price by the purchaser to the creditors according to their preference, or on conflation of it. By the act 1695, purchasers were bound to conflate the price in the hands of the magistrates of Edinburgh; but by § 5. of the above act, they may conflate it in the royal bank or bank of Scotland. The only remedy provided to such creditors as judge themselves hurt by the sale or division of the price, even though they should be minors, is an action for recovering their share of the price against the creditors who have received it.
14. The expence of these processes is debursted by the factor out of the rents in his hands; by which the whole burden of such expence falls upon the posterior creditors.
15. Apparent heirs are intitled to bring actions of sale of the estates belonging to their ancestors, whether bankrupt or not; the expence of which ought to fall upon the pursuer, if there is any excrecence of the price, after payment of the creditors; but if there be no excrecence, the creditors, who alone are gainers by the sale, ought to bear the charge of it.
16. As processes of ranking and sale are designed for the common interest of all the creditors, no diligence carried on or completed during their pendency ought to give any preference in the competition; pendente lite, nihil innovandum.
17. It is a rule in all real diligences, that where a creditor is preferable on several different subjects, he cannot use his preference arbitrarily, by favouring one creditor more than another; but must allocate his universal or catholic debt proportionally against all the subjects or parties whom it affects. If it is material to such creditor to draw his whole payment out of any one fund, he may apply his debt so as may best secure himself; but that inequality will be rectified as to the posterior creditors, who had likewise, by their rights and diligences, affected the subjects out of which he drew his payment, by obliging him to assign in their favour his right upon the separate subjects which he did not use in the ranking; by which they may recur against these separate subjects for the shares which the debt preferred might have drawn out of them. As the obligation to assign is founded merely in equity, the catholic creditor cannot be compelled to it, if his assigning shall weaken the preference of any separate debt vested in himself, affecting the special subject sought to be assigned. But if a creditor upon a special subject shall acquire from another a catholic right, or a catholic creditor shall purchase a debt affecting a special subject, with a view of creating to the special debt a higher degree of preference than was naturally due to it, by an arbitrary application of the catholic debt, equity cannot protect him from assigning in favour of the creditor excluded by such application, especially if, prior to the purchase, the subject has become litigious by the process of ranking.
The law of heritable rights being explained, Move-
able Rights fall next to be considered; the doctrine of which depends chiefly on the nature of Obligations.
An obligation is a legal tie, by which one is bound Obligations to pay or perform something to another. Every obligation on the person obliged implies an opposite right in the creditor, so that what is a burden in regard to the one is right with respect to the other; and all rights founded on obligation are called personal. There is this essential difference between a real and a personal right, that a jus in re, whether of property, or of an inferior kind, as servitude, intitles the person vested with it to possess the subject as it is own; or if he is not in possession, to demand it from the possessors: whereas the creditor in a personal right has only jus ad rem, or a right to compel the debtor to fulfil his obligation; without any right in the subject itself, which the debtor is bound to transfer to him. One cannot oblige himself, but by a present act of the will. A bare resolution, therefore, or purpose, to be obliged, is alterable at pleasure.
2. Obligations are either, (1.) Merely natural, where Division of one person is bound to another by the law of nature, obligations but cannot be compelled by any civil action to the performance. Thus, though deeds granted by a minor having curators, without their consent, are null, yet the minor is naturally obliged to perform such deeds; and parents are naturally obliged to provide their children in reasonable patrimonies. Natural obligations intitle the creditor to retain what he has got in virtue thereof, without being subjected to restore it. (2.) Obligations are merely civil, which may be sued upon by an action, but are elided by an exception in equity; this is the case of obligations granted through force or fear, &c. (3.) Proper or full obligations, are those which are supported both by equity and the civil sanction.
3. Obligations may be also divided into, (1.) Pure, to which neither day nor condition is adjected. These may be exacted immediately. (2.) Obligations (ex die), which have a day adjected to their performance. In these, dies statim cedit, sed non venit; a proper debt arises from the date of the obligation, because it is certain that the day will exist; but the execution is suspended till the lapse of that day. (3.) Conditional obligations; in which there is no proper debt (dies non cedit) till the condition be purified, because it is possible the condition may never exist; and which therefore are said to create only the hope of a debt; but the grantor, even of these, has no right to refuse. An obligation, to which a day is adjected that possibly may never exist, implies a condition; dies incertus pro conditione habetur. Thus, in the case of a provision to a child, payable when he attains to the age of fourteen, if the child dies before that age, the provision falls.
4. Obligations, when considered with regard to their cause, were divided by the Romans, into those arising from contract, quasi contract, delict, and quasi delict: but there are certain obligations, even full and proper ones, which cannot be derived from any of these sources, and to which Lord Stair gives the name of obediential. Such as the obligation on parents to aliment or maintain their children; which arises singly from the relation
tion of parent and child, and may be enforced by the civil magistrate. Under parents are comprehended, the mother, grandfather, and grandmother, in their proper order. This obligation on parents extends to the providing of their issue in all the necessaries of life, and giving them suitable education. It ceases, when the children can earn a livelihood by their own industry; but the obligation on parents to maintain their indigent children, and reciprocally on children to maintain their indigent parents, is perpetual. This obligation is, on the father's death, transferred to the eldest son, the heir of the family; who, as representing the father, must aliment his younger brothers and sisters: the brothers are only intitled to alimony, till their age of twenty-one, after which they are presumed able to do for themselves; but the obligation to maintain the sisters continues till their marriage. In persons of lower rank, the obligation to aliment the sisters ceases after they are capable of subsisting by any service or employment.
5. All obligations, arising from the natural duty of restitution, fall under this class; thus, things given upon the view of a certain event, must be restored, if that event does not afterwards exist: thus also, things given ob turpem causam, where the turpitude is in the receiver and not in the giver, must be restored. And on the same principle, one upon whose ground a house is built or repaired by another, is obliged, without any covenant, to restore the expence laid out upon it, in so far as it has been profitable to him.
6. A contract is the voluntary agreement of two or more persons, whereby something is to be given or performed upon one part, for a valuable consideration, either present or future, on the other part. Consent, which is implied in agreement, is excluded, (1.) By error in the essentials of the contract; for, in such case, the party does not properly contract, but errs or is deceived; and this may be also applied to contracts which take their rise from fraud or imposition. (2.) Consent is excluded by such a degree of restraint upon any of the contracting parties, as extorts the agreement; for where violence or threatening are used against a person, his will has really no part in the contract.
7. Loan, or mutuum, is that contract which obliges a person, who has borrowed any fungible subject from another, to restore to him as much of the same kind, and of equal goodness. Whatever receives its estimation in number, weight, or measure, is a fungible; as corn, wine, current coin, &c. The only proper subjects of this contract are things which cannot be used without either their extinction or alienation: hence the property of the thing lent is necessarily transferred by delivery to the borrower, who consequently must run all the hazards either of its deterioration or its perishing, according to the rule, res perit suo domino. Where the borrower neglects to restore at the time and place agreed on, the estimation of the thing lent must be made according to its price at that time and in that place; because it would have been worth so much to the lender, if the obligation had been duly performed. If there is no place nor time stipulated for, the value is to be stated according to the price that the commodity gave when and where it was demanded. In the loan of money, the value put on it by public authority, and not its intrinsic worth, is to be considered.
This contract is one of those called by the Romans unilateral, being obligatory only on one part; for the lender is subjected to no obligation: the only action therefore that it produces, is pointed against the borrower, that he may restore as much in quantity and quality as he borrowed, together with the damage the lender may have suffered through default of due performance.
8. Commodate is a species of loan, gratuitous on the part of the lender, where the thing lent may be used, without either its perishing or its alienation. Hence, in this sort of loan, the property continues with the lender: the only right the borrower acquires in the subject is its use, after which he must restore the individual thing that he borrowed: consequently, if the subject perishes, it perishes to the lender, unless it has perished by the borrower's fault. What degree of fault or negligence makes either of the contracting parties liable to the other in damages, is comprehended under the following rules. Where the contract gives a mutual benefit to both parties, each contractor is bound to adhibit a middle sort of diligence, such as a man of ordinary prudence uses in his affairs. Where only one of the parties has benefit by the contract, that party must use exact diligence; and the other who has no advantage by it, is accountable only for dole, or for gross omissions, which the law construes to be dole. Where one employs less care on the subject of any contract which implies an exuberant trust, than he is known to employ in his own affairs, it is considered as dole.
9. Hence it will appear that this is a bilateral contract; the borrower must be exactly careful of the thing lent, and restore it at the time fixed by the contract, or after that use is made of it for which it was lent: if he puts it to any other use, or neglects to restore it at the time covenanted, and if the thing perishes thereafter, even by mere accident, he is bound to pay the value. On the other part, the lender is obliged to restore to the borrower such of the expences debursted by him on that subject as arose from any uncommon accident, but not those that naturally attend the use of it. Where a thing is lent gratuitously, without specifying any time of redelivery, it constitutes the contract of precarium, which is revocable at the lender's pleasure, and, being entered into from a personal regard to the borrower, ceases by his death.
10. Deposition is also a bilateral contract, by which one who has the custody of a thing committed to him (the depository) is obliged to restore it to the depositor. If a reward is bargained for by the depository for his care, it resolves into the contract of location. As this contract is gratuitous, the depository is only answerable for the consequences of gross neglect; but after the deposit is redemanded, he is accountable even for casual misfortunes. He is intitled to a full indemnification for the losses he has sustained by the contract, and to the recovery of all sums expended by him on the subject.
11. An obligation arises without formal pactum, barely by a traveller's entering into an inn, ship, or stable, and there depositing his goods, or putting up his horses; whereby the innkeeper, shipmaster, or stable, is accountable, not only for his own facts and those of his servants (which is an obligation implied in the very exercise of these employments), but of the other guests or passengers; and, indeed, in every case, unless where-
where the goods have been lost clauſo fatali, or carried off by pirates or honſe-breakers. Not only the maſters of ſhips, but their employers, are liable each of them for the ſhare that he has in the ſhip; but by the preſent cuſtom of trading nations, the goods brought into a ſhip muſt have been delivered to the maſter or mate, or entered into the ſhip-books. Carriers fall within the intendment of this law; and practice has extended it to vintners within borough. The extent of the damage ſuſtained by the party may be proved by his own oath in litem.
12. Sequeſtration, whether voluntarily conſented to by the parties, or authorised by the judge, is a kind of depoſit; but as the office of ſequeſtree, to whose care the ſubject in diſpute is committed, is not conſidered as gratuitous, he cannot throw it up at pleaſure, as a common depoſitary may do; and he is liable in the middle degree of diligence. Conſignation of money is alſo a depoſit. It may be made, either where the debt is called in queſtion by the debtor, as in ſuſpenſions; or where the creditor reſuſes to receive his money, as in wadſets, &c. The riſk of the conſigned money lies on the conſigner, where he ought to have made payment, and not conſignation; or has conſigned only a part; or has choſen for conſignatory, a perſon neither named by the parties nor of good credit. The charger, or other creditor, runs the riſk, if he has charged for ſums not due, or has without good reaſon reſuſed payment, by which reſuſal the conſignation became neceſſary. It is the office of a conſignatory, to keep the money in ſafe cuſtody till it be called for; if therefore he puts it out at interest, he muſt run the hazard of the debtor's inſolvency; but, for the ſame reaſon, though he ſhould draw interest for it, he is liable in none to the conſigner.
13. Pledge, when oppoſed to wadſet, is a contract, by which a debtor puts into the hands of his creditor a ſpecial moveable ſubject in ſecurity of the debt, to be redelivered on payment. Where a ſecurity is eſtabliſhed by law to the creditor, upon a ſubject which continues in the debtor's poſſeſſion, it has the ſpecial name of an hypothec. Tradeſmen and ſhip-carpenters have an hypothec on the houſe or ſhip repaired, for the materials and other charges of reparation; but not for the expence of building a new ſhip. This, however, muſt not now be underſtood to apply univerſally; for the court of ſeſſion, in different caſes which lately occurred before them, and founding upon the law and practice of England in ſimilar caſes, have found, that no hypothec exiſts for the expence of repairs done in a home port. Owners of ſhips have an hypothec on the cargo for the freight; heritors on the fruits of the ground; and landlords on the inveſtia et illata, for their rents. Writers alſo, and agents, have a right of hypothec, or more properly of retention, in their conſtituent's writings, for their claim of pains and deburſements. A creditor cannot, for his own payment, ſell the ſubject impignorated, without applying to the judge-ordinary for a warrant to put it up to public ſale or roup; and to this application the debtor ought to be made a party.
THE appellation of verbal may be applied to all
obligations to the conſtitution of which writing is not eſſential, which includes both real and conſenſual contracts; but as theſe are explained under ſeparate titles, obligations by word, in the ſenſe of this rubric, muſt be reſtRICTED, either to promiſes, or to ſuch verbal agreements as have no ſpecial name to diſtinguiſh them. Agreement implies, the intervention of two different parties, who come under mutual obligations to one another. Where nothing is to be given or performed but on one part, it is properly called a promiſe; which, as it is gratuitous, does not require the acceptance of him to whom the promiſe is made. An offer, which muſt be diſtinguiſhed from a promiſe, implies ſomething to be done by the other party; and conſequently is not binding on the offerer, till it be accepted, with its limitations or conditions, by him to whom the offer is made; after which, it becomes a proper agreement.
2. Writing muſt neceſſarily interſene in all obligations and bargains concerning heritable ſubjects, tho' they ſhould be only temporary; as tacks, which, when they are verbal, laſt but for one year. In theſe, no verbal agreement is binding, though it ſhould be referred to the oath of the party; for, till writing is adhi- bited, law gives both parties a right to reſile, as from an unfiniſhed bargain; which is called locus penitentie. If, upon a verbal bargain of lands, part of the price ſhall be paid by him who was to purchaſe, the inter- ventus rei, the actual payment of money, creates a va- lid obligation, and gives a beginning to the contract of ſale; and, in general, where-ever matters are no longer entire, the right to reſile ſeems to be excluded. An agreement, whereby a real right is paſſed from, or reſtRICTED, called paſſum liberatorum, may be perfected verbally; for freedom is favourable, and the purpoſe of ſuch agreement is rather to diſſolve than to create an obligation. Writing is alſo eſſential to bargains made under condition that they ſhall be reduced into writing; for in ſuch caſes, it is pro contractu, that, till writing be adhi- bited, both parties ſhall have liberty to with- draw. In the ſame manner, verbal or nuncupative teſtaments are rejected by our law; but verbal legacies are ſuſtained, where they do not exceed L. 100 Scots.
3. Anciently, when writing was little uſed, deeds were executed by the party, appending his ſeal to them in preſence of witneſſes. For preventing frauds that might happen by appending ſeals to falſe deeds, the ſubſcription alſo of the granter was afterwards required, and, if he could not write, that of a notary. As it might be of dangerous conſequences to give full force to the ſubſcription of the parties by initials, which is more eaſily counterfeited; our practice, in order to ſuſ- tain ſuch ſubſcription, ſeems to require a proof, not only that the granter uſed to ſubſcribe in that way, but that de facto he had ſubſcribed the deed in queſtion; at leaſt, ſuch proof is required, if the inſtrumentary witneſſes be ſtill alive.
4. As a further check, it was afterwards provided, that all writings carrying any heritable right, and other deeds of importance, be ſubſcribed by the principal parties, if they can ſubſcribe; otherwiſe, by two notaries, before four witneſſes ſpecially deſigned. The ſub- ſequent practice extended this reſquire of the deſigna- tion of the witneſſes to the caſe where the parties them- ſelves ſubſcribed. Cuſtom has conſtructed obligations for
fums exceeding L. 100 Scots, to be obligations of importance. In a divisible obligation, ex gr. for a sum of money, though exceeding L. 100, the subscription of one notary is sufficient, if the creditor restricts his claim to L. 100: But in an obligation indivisible, e.g. for the performance of a fact, if it be not subscribed in terms of the statute, it is void. When notaries thus attest a deed, the attestation or docket must specially express that the grantor gave them a mandate to sign; nor is it sufficient that this be mentioned in the body of the writing.
5. In every deed, the name of him who writes it, with his dwelling place, or other mark of distinction, must be inserted. The witnesses must both subscribe as witnesses, and their names and designations be inserted in the body of the deed: And all subscribing witnesses must know the grantor, and either see him subscribe, or hear him acknowledge his subscription; otherwise they are declared punishable as accessory to forgery. Deeds, decrees, and other securities, consisting of more than one sheet, may be written by way of book, in place of the former custom of passing together the several sheets, and signing the joinings on the margin; provided each page be signed by the grantor, and marked by its number, and the testing clause express the number of pages.
6. Instruments of feisin are valid, if subscribed by one notary, before a reasonable number of witnesses; which is extended by practice to instruments of resignation. Two witnesses are deemed a reasonable number to every deed that can be executed by one notary. It is not necessary that the witnesses to a notarial instrument or execution see the notary or messenger sign; for they are called as witnesses to the transaction which is attested, and not to the subscription of the person attesting.
7. A new requisite has been added to certain deeds since the union, for the benefit of the revenue: They must be executed on stamped paper, or parchment, paying a certain duty to the crown. These duties must all be paid before wrote upon, under a penalty; but they are so numerous and complex, that it would be tedious, even if it fell under our plan, to enter into an enumeration of them. They will be found at length in Swinton's Abridgement, vide Stamps, to which the reader is referred. Certain judicial deeds, such as bail-bonds, bonds of cautionary, in suspensions, &c. are excepted, and do not require stamps, as will be seen from the several acts referred to by the compiler of the above abridgement of the statutes.
8. The grantor's name and designation are essential, not properly as solemnities, but because no writing can have effect without them. Bonds were, by our ancient practice, frequently executed without filling up the creditor's name; and they passed from hand to hand, like notes payable to the bearer: But as there was no method for the creditor of a person possessed of these to secure them for his payment, all writings taken blank in the creditor's name are declared null, as covers to fraud; with the exception of indorsements of bills of exchange.
9. Certain privileged writings do not require the ordinary solemnities. 1. Holograph deeds (written by the grantor himself) are effectual without witnesses. The dates of no holograph writing, except a bill of ex-
change (see next parag.), can be proved by the grantor's own assertion, in prejudice either of his heir or his creditors, but must be supported by other adminicles.
2. Testaments, if executed where men of skill and business cannot be had, are valid though they should not be quite formal: and let the subject of a testament be ever so valuable, one notary signing for the testator, before two witnesses, is in practice insufficient. Clergymen were frequently notaries before the reformation; and, though they were afterwards prohibited to act as notaries, the case of testaments is excepted; so that these are supported by the attestation of one minister, with two witnesses. 3. Discharges to tenants are sustained without witnesses, from their presumed rusticity, or ignorance in business. 4. Missive letters in rem mercatoria, commissions, and fitted accounts in the course of trade, and bills of exchange, though they are not holographs, are, from the favour of commerce, sustained without the ordinary solemnities.
10. A bill of exchange is an obligation in the form of a mandate, whereby the drawer or mandant directs him to whom it is directed, to pay a certain sum, at the day and place therein mentioned, to a third party. Bills of exchange are drawn by a person in one country to his correspondent in another; and they have that name, because it is the exchange, or the value of money in one place compared with its value in another, that generally determines the precise extent of the sum contained in the draught. The creditor in the bill is sometimes called the possessor, or porteur. As parties to bills are of different countries, questions concerning them ought to be determined by the received custom of trading nations, unless where special statute interposes. For this reason, bills of exchange, though their form admits not of witnesses, yet prove their own dates, in questions either with the heir or creditors of the debtor; but this doctrine is not extended to inland bills payable to the drawer himself.
11. A bill is valid, without the designation either of the drawer or of the person to whom it is made payable: It is enough, that the drawer's subscription appears to be truly his; and one's being possessor of a bill marks him out to be the creditor, if he bears the name given in the bill to the creditor: Nay, though the person drawn on should not be designated, his acceptance presumes that it was he whom the drawer had in his eye. Bills drawn blank, in the creditor's name, fall under the statutory nullity; for though indorsements of bills are excepted from it, bills themselves are not. Not only the person drawn upon must sign his acceptance, but the drawer must sign his draught, before any obligation can be formed against the acceptor: Yet it is sufficient in practice, that the drawer signs before the bill be produced in judgment; though it should be after the death both of the creditor and acceptor. A creditor in a bill may transmit it to another by indorsement, though the bill should not bear to his order; by the same rule that other rights are transmissible by assignment, though they do not bear to assignees.
12. The drawer, by signing his draught, becomes liable for the value to the creditor in the bill, in case the person drawn upon either does not accept, or after acceptance does not pay; for he is presumed to have received value from the creditor at giving him the draught, though it should not bear for value received: But, if the
the drawer was debtor to the creditor in the bill before the draught, the bill is presumed to be given towards payment of the debt, unless it expressly bears for value. The person drawn upon, if he refuse to accept, while he has the drawer's money in his hands, is liable to him in damages. As a bill presumes value from the creditor, indorsement presumes value from the indorsee; who therefore, if he cannot obtain payment from the acceptor, has recourse against the indorser, unless the bill be indorsed in these words, without recourse.
13. Payment of a bill, by the acceptor, acquits both the drawer and him at the hands of the creditor: but it intitles the acceptor, if he was not the drawer's debtor, to an action of recourse against him; and, if he was, to a ground of compensation. Where the bill does not bear value in the hands of the person drawn upon, it is presumed that he is not the drawer's debtor, and consequently he has recourse against the drawer, ex mandato.
14. Bills, when indorsed, are considered as so many bags of money delivered to the onerous indorsee; which therefore carry right to the contents, free of all burdens that do not appear on the bills themselves. Hence, a receipt or discharge, by the original creditor, if granted on a separate paper, does not exempt the acceptor from second payment to the indorsee; hence, also, no ground of compensation competent to the acceptor against the original creditor can be pleaded against the indorsee: but, if the debtor shall prove, by the oath of the indorsee, either that the bill is indorsed to him for the indorser's own behoof, or that he paid not the full value for the indorsement, the indorsee is justly considered as but a name; and therefore all exceptions, receivable against the original creditor, will be sustained against him. A protested bill, after registration, cannot be transmitted by indorsement, but by assignment.
15. Bills must be negotiated by the possessor, against the person drawn upon, within a precise time, in order to preserve recourse against the drawer. In bills payable so many days after sight, the creditor has a discretionary power of fixing the payment somewhat sooner or later, as his occasions shall require. Bills payable on a day certain, need not be presented for acceptance till the day of payment, because that day can neither be prolonged nor shortened by the time of acceptance. For the same reason, the acceptance of bills, payable on a precise day, need not be dated: but, where a bill is drawn payable so many days after sight, it must; because there the term of payment depends on the date of acceptance.
16. Though bills are, in strict law, due the very day on which they are made payable, and may therefore be protested on the day thereafter; yet there are three days immediately following the day of payment, called days of grace, within any of which the creditor may protest the bill: but if he delay protesting till the day after the last day of grace, he loses his recourse. Where a bill is protested, either for not acceptance or not payment, the dishonour must be notified to the drawer or indorser, within three posts at farthest. This strictness of negotiation is confined to such bills as may be protested by the possessor upon the third day of grace: where, therefore, bills are indorsed after the days of
grace are expired, the indorsee is left more at liberty, and does not lose his recourse, tho' he should not take a formal protest for not payment, if, within a reasonable time, he shall give the indorser notice of the acceptor's refusing to pay. Not only does the possessor, who neglects strict negotiation, lose his recourse against the drawer, where the person drawn upon becomes afterwards bankrupt; but tho' he should continue solvent: for he may in that case recover payment from the debtor, and so is not to be indulged in an unnecessary process against the drawer, which he has tacitly renounced by his negligence. Recourse is preserved against the drawer, though the bill should not be duly negotiated, if the person drawn upon was not his debtor; for there the drawer can qualify no prejudice by the neglect of diligence, and he ought not to have drawn on one who owed him nothing.
17. The privileges superadded to bills by statute are, Privileges that though, by their form, they can have no clause of bills by registration, yet, if duly protested, they are registrable statute. within six months after their date in case of not acceptance, or in six months after the term of payment in the case of not payment; which registration is made the foundation of summary diligence, either against the drawer or indorser in the case of not acceptance, or against the acceptor in the case of not payment. This is extended to inland bills, i. e. bills both drawn and made payable in Scotland. After acceptance, summary diligence lies against no other than the acceptor; the drawer and indorser must be pursued by an ordinary action. It is only the principal sum in the bill, and interest, that can be charged for summarily: the exchange, when it is not included in the draught, the re-exchange incurred by suffering the bill to be protested and returned, and the expence of diligence, must all be recovered by an ordinary action; because these are not liquid debts, and so must be previously constituted.
18. Bills, when drawn payable at any considerable distance of time after date, are denied the privileges of bills; for bills are intended for currency, and not to privilege as a security in the creditor's hands. Bills are not valid which appear ex facie to be donations. No extrinsic stipulation ought to be contained in a bill which deviates from the proper nature of bills: hence, a bill to which a penalty is adjected, or with a clause of interest from the date, is null. Inland precepts drawn, not for money the medium of trade, but for fungibles, are null, as wanting writer's name and witnesses. It is not an agreed point whether promissory notes, without writer and witnesses, unless holograph, are probative.
19. So stood the law of Scotland, in regard to bills and promissory notes, previous to the statute 12 Geo. III. By that statute, however, the law of Scotland has undergone very material alterations. They are declared to have the same privileges, and to prescribe in six years after the term of payment. Bank notes and post-bills are excepted from this prescription: nor does it run during the years of the creditor's minority. Inland bills and promissory notes must be protested within the days of grace, to secure recourse; and the dishonour notified within 14 days after the protest. Summary diligence may pass not only against the acceptor, but likewise against the drawer, and all the indorsees jointly and severally; and at the instance of any indorsee,
donee, though the bill was not protested in his name, upon his producing a receipt or letter from the protesting indorsee. This act was in force only for seven years after 15th May 1772, and to the end of the then next session of parliament. But as it was found by experience, that it had been of great advantage to Scotland, it was made perpetual by the late act 23 Geo. III. so that it has now become a permanent part of the law of Scotland.
20. As for the solemnities essential to deeds signed in a foreign country, when they come to receive execution in Scotland, it is a general rule, that no laws can be of authority beyond the dominions of the law-giver. Hence, in strictness, no deed, though perfected according to the law of the place where it is signed, can have effect in another country where different solemnities are required to a deed of that sort. But this rigour is so softened ex comitate, by the common consent of nations, that all personal obligations granted according to the law of that country where they are signed, are effectual every where; which obtains in obligations to convey heritage. Conveyances themselves, however, of heritable subjects, must be perfected according to the law of the country where the heritage lies, and from which it cannot be removed.
21. A writing, while the grantor keeps it under his own power or his doer's, has no force; it becomes obligatory, only after it is delivered to the grantee himself, or found in the hands of a third person. As to which last, the following rules are observed. A deed found in the hands of one who is doer both for the grantor and grantee, is presumed to have been put in his hands as doer for the grantee. The presumption is also for delivery, if the deed appears in the hands of one who is a stranger to both. Where a deed is deposited in the hands of a third person, the terms of deposition may be proved by the oath of the depository, unless where they are reduced into writing. A deed appearing in the custody of the grantee himself, is considered as his absolute right; in so much that the grantor is not allowed to prove that it was granted in trust, otherwise than by a written declaration signed by the trustee, or by his oath.
22. The following deeds are effectual without delivery. (1.) Writings containing a clause dispensing with the delivery; these are of the nature of revocable deeds, where the death of the grantor is equivalent to delivery, because after death there can be no revocation. (2.) Deeds in favour of children, even natural ones; for parents are the proper custodians or keepers of their children's writings. From a similar reason, post-nuptial settlements by the husband to the wife need no delivery. (3.) Rights which are not to take effect till the grantor's death, or even where he reserves an interest to himself during his life; for it is presumed he holds the custody of these, merely to secure to himself such reserved interest. (4.) Deeds which the grantor lay under an antecedent natural obligation to execute, &c. rights granted to a cautioner for his relief. (5.) Mutual obligations, &c. contracts; for every such deed, the moment it is executed, is a common evident to all the parties contractors. Lastly, the publication of a writing by registration, is equivalent to delivery.
CONTRACTS consensual, (i. e. which might, by the Roman law, be perfected by sole consent, without the intervention either of things or of writing,) are sale, permutation, location, society, and mandate. Where the subject of any of these contracts is heritable, writing is necessary.
2. Sale is a contract, by which one becomes obliged to give something to another, in consideration of a certain price in current money to be paid for it. Things consisting merely in hope, may be the subject of this contract, as the draught of a net. Commodities, where their importation or use is absolutely prohibited, cannot be the subject of sale; and even in run goods, no action lies against the vender for not delivery, if the buyer knew the goods were run. So far indeed has this principle been carried, and so anxious have our judges been to put a stop to the practice of smuggling, that in different cases which have occurred of action being brought at the instance of a foreign merchant against persons resident in Scotland for payment of goods which had been smuggled, a distinction has been made betwixt the case of the foreign merchant being or not being a native of Scotland. Where the foreign merchant was a native of Scotland, it has been presumed that he was acquainted with the revenue law of the country, and that he was in a manner versans in re illicita; and therefore action has been denied for recovery of the price of such goods: but where, on the other hand, the foreign merchant was not a native of Scotland, no ways amenable to, and even presumed ignorant of, its laws, he has with justice been allowed action for the price of such goods, unless it were shown that he had in fact been particeps criminis, by aiding the smuggle. The same principle has regulated the decisions in the courts of England in cases of a similar nature, which have within these few years come before them.
3. Though this contract may be perfected before delivery of the subject, the property remains till then with the vender: (See No clxii. 9.) Yet till delivery, the hazard of its deterioration falls on the purchaser, because he has all the profits arising from it after the sale. On the other hand, the subject itself perishes to the vender; (1.) If it should perish through his fault, or after his undue delay to deliver it. (2.) If a subject is sold as a fungible, and not as an individual, or corpus, e. g. a quantity of farm-wheat, sold without distinguishing the parcel to be delivered from the rest of the farm. (3.) The periculum lies on the vender till delivery, if he be obliged by a special article in the contract to deliver the subject at a certain place.
4. Location is that contract where an hire is stipulated for the use of things, or for the service of persons. He who lets his work or the use of his property to hire, is the locator or lessor; and the other, the conductor or lessee. In the location of things, the lessor is obliged to deliver the subject, fitted to the use it was let for; and the lessee must preserve it carefully, put it to no other use, and, after that is over, restore it. Where a workman or artificer lets his labour, and if the work is either not performed according to contract,
or if it be insufficient, even from mere unskillfulness, he is liable to his employer in damages; for he ought not, as an artificer, to have undertaken a work to which he was not equal. A servant hired for a certain term, is intitled to his full wages, though from sickness or other accident he should be disabled for a part of his time; but if he die before the term, his wages are only due for the time he actually served. If a master dies, or without good reason turns off, before the term, a servant who eats in his house, the servant is intitled to his full wages, and to his maintenance till that term: and, on the other part, a servant who without ground deserts his service, forfeits his wages and maintenance, and is liable to his master in damages.
5. Society or copartnership is a contract, whereby the several partners agree concerning the communication of loss and gain arising from the subject of the contract. It is formed by the reciprocal choice which the partners make one of another; and so is not constituted in the case of co-heirs, or of several legatees in the same subject. A copartnership may be so constituted, that one of the partners shall, either from his sole right of property in the subject, or from his superior skill, be intitled to a certain share of the profits, without being subjected to any part of the loss; but a society, where one partner is to bear a certain proportion of loss, without being intitled to any share of the profits, called by the Romans societas leonina, is justly reprobated. All the partners are intitled to shares of profit and loss proportioned to their several stocks, where it is not otherwise covenanted.
6. As partners are united, from a delectus personarum, in a kind of brotherhood, no partner can, without a special power contained in the contract, transfer any part of his share to another. All the partners are bound in solidum by the obligation of any one of them, if he subscribe by the firm or social name of the company; unless it be a deed that falls not under the common course of administration. The company effects are the common property of the society subjected to its debts; so that no partner can claim a division thereof, even after the society is dissolved, till these are paid: and, consequently, no creditor of a partner can, by diligence, carry to himself the property of any part of the common stock, in prejudice of a company-creditor: but he may, by arrestment, secure his debtor's share in the company's hands, to be made forthcoming to him at the close of the copartnership, in so far as it is not exhausted by the company debts.
7. Society being founded in the mutual confidence among the socii, is dissolved, not only by the renunciation, but by the death of any one of them, if it be not otherwise specially covenanted. A partner who renounces upon unfair views, or at a critical time, when his withdrawing may be fatal to the society, loses his partners from all their engagements to him, while he is bound to them for all the profits he shall make by his withdrawing, and for the loss arising thereby to the company. Not only natural, but civil death, e.g. arising from a sentence inflicting capital punishment, makes one incapable to perform the duties of a partner, and consequently dissolves the society. In both cases, of death and renunciation, the remaining partners may continue the copartnership, either expressly, by entering into a new contract; or tacitly, by carry-
ing on their trade as formerly. Public trading companies are now every day constituted, with rules very different from those which either obtained in the Roman law, or at this day obtain in private societies. The proprietors or partners in these, though they may transfer their shares, cannot renounce; nor does their death dissolve the company, but the share of the deceased descends to his representative.
8. A joint trade is not a copartnership, but a momentary contract, where two or more persons agree to contribute a sum, to be employed in a particular course of trade, the produce whereof is to be divided among the adventurers, according to their several shares, after the voyage is finished. If, in a joint trade, that partner who is intrusted with the money for purchasing the goods, should, in place of paying them in cash, buy them upon credit, the furnisher who followed his faith alone in the sale, has no recourse against the other adventurers; he can only recover from them what of the buyer's share is yet in their hands. Where any one of the adventurers in a joint trade becomes bankrupt, the others are preferable to his creditors, upon the common stock, as long as it continues undivided, for their relief of all the engagements entered into by them on account of the adventure.
9. Mandate is a contract, by which one employs another to manage any business for him; and by the Roman law, it must have been gratuitous. It may be constituted tacitly, by one's suffering another to act in a certain branch of his affairs, for a tract of time together, without challenge. The mandatory is at liberty not to accept of the mandate; and, as his powers are solely founded in the mandant's commission, he must, if he undertakes it, strictly adhere to the directions given him: Nor is it a good defence, that the method he followed was more rational; for in that his employer was the proper judge. Where no special rules are prescribed, the mandatory, if he acts prudently, is secure, whatever the success may be; and he can sue for the recovery of all the expenses reasonably deburied by him in the execution of his office.
10. Mandates may be general, containing a power of administering the mandant's whole affairs; but no mandate implies a power of disposing gratuitously of the constituent's property, nor even of selling his heritage for an adequate price: but a general mandatory may sell such of the moveables as must otherwise perish. No mandatory can, without special powers, transact doubtful claims belonging to his constituent, or refer them to arbiters.
11. Mandates expire, (1.) By the revocation of the employer, though only tacit, as if he should name another mandatory for the same business. (2.) By the renunciation of the mandatory; even after he has executed part of his commission, if his office be gratuitous. (3.) By the death, either of the mandant or mandatory: But if matters are not entire, the mandate continues in force, notwithstanding such revocation, renunciation, or death. Procuratories of resignation, and precepts of seisin, are made out in the form of mandates; but, because they are granted for the sole benefit of the mandant, all of them, excepting precepts of clere constat, are declared (by act 1693) to continue after the death either of the grantor or grantee. Deeds which contain a clause or mandate for registration, are for the same
12. The favour of commerce has introduced a tacit mandate, by which masters of ships are empowered to contract in name of their executors or employers, for repairs, ship-provisions, and whatever else may be necessary for the ship or crew; so as to oblige not themselves only, but their employers. Whoever has the actual charge of the ship is deemed the master, though he should have no commission from the executors, or should be substituted by the master in the direction of the ship without their knowledge. Executors are liable, whether the master has paid his own money to a merchant for necessaries, or has borrowed money to purchase them. The furnisher or lender must prove that the ship needed repairs, provisions, &c. to such an extent; but he is under no necessity to prove the application of the money or materials to the ship's use. If there are several executors, they are liable solidum. In the same manner the undertaker of any branch of trade, manufacture, or other land negotiation, is bound by the contracts of the initiators whom he sets over it, in so far as relates to the subject of the præpositura.
13. Contracts and obligations, in themselves imperfect, receive strength by the contractor or his heirs doing any act thereafter which imports an approbation of them, and consequently supplies the want of an original legal consent. This is called homologation; and it takes place even in deeds intrinsically null, whether the nullity arises from the want of statutory solemnities, or from the incapacity of the grantor. It cannot be inferred, (1.) By the act of a person who was not in the knowledge of the original deed; for one cannot approve what he is ignorant of. (2.) Homologation has no place where the act or deed, which is pleaded as such, can be ascribed to any other cause; for an intention to come under an obligation is not presumed.
14. Quasi-contracts are formed without explicit consent, by one of the parties doing something which by its nature either obliges him to the other party, or the other party to him. Under this class may be reckoned tutory, &c. the entry of an heir, negotiorum gestio, indebiti solutio, communion of goods between two or more common proprietors, and meritum jallus levanda navis causa. Negotiorum gestio forms those obligations which arise from the management of a person's affairs, in his absence, by another, without a mandate. As such manager acts without authority from the proprietor, he ought to be liable in exact diligence, unless he has from friendship interposed in affairs which admitted no delay; and he is accountable for his intromissions with interest. On the other part, he is intitled to the recovery of his necessary debursements on the subject, and to be relieved of the obligations in which he may have bound himself in consequence of the management.
15. Indebiti solutio, or the payment to one of what is not due to him, if made through any mistake, either of fact, or even of law, founds him who made the payment in an action against the receiver for repayment (conditio indebiti). This action does not lie, (1.) If the sum paid was due ex aequitate, or by a natural obligation: for the obligation to restore is founded solely in equity. (2.) If he who made the payment
16. Where two or more persons become common proprietors of the same subject, either by legacy, gift, or purchase, without the view of copartnership, an obligation is thereby created among the proprietors to communicate the profit and loss arising from the subject, while it remains common: And the subject may be divided at the suit of any having interest. This division, where the question is among the common proprietors, is according to the valuation of their respective properties. But where the question is between the proprietors and those having servitudes upon the property, the superfluous is only divided, without prejudice to the property. Commonities belonging to the king, or to royal boroughs, are not divisible. Lands lying runrig, and belonging to different proprietors, may be divided, with the exception of borough and incorporated acres; the execution of which is committed to the judge-ordinary, or justices of the peace.
17. The throwing of goods overboard, for lightening a ship in a storm, creates an obligation, whereby the owners of the ship and goods saved are obliged to contribute for the relief of those whose goods were thrown overboard, that so all may bear a proportional loss of the goods ejected for the common safety. In this contribution, the ship's provisions suffer no elimination. A master who has cut his mast, or parted with his anchor, to save the ship, is intitled to this relief; but if he has lost them by the storm, the loss falls only on the ship and freight. If the ejection does not save the ship, the goods preserved from shipwreck are not liable in contribution. Ejection may be lawfully made, if the master and a third part of the mariners judge that measure necessary, though the owner of the goods should oppose it; and the goods ejected are to be valued at the price that the goods of the same sort which are saved shall be afterwards sold for.
18. There are certain obligations which cannot be fulfilled by themselves, but are accessions to, or make a part of, other obligations. Of this sort are fidejussion, and the obligation to pay interest. Cautiō, or fidejussion, is that obligation by which one becomes engaged as security for another, that he shall either pay a sum, or perform a deed.
19. A cautioner for a sum of money may be bound, either simply as cautioner for the principal debtor, or conjunctly and severally for and with the principal debtor. The first has, by our customs, the beneficium ordinis, or of discussion; by which the creditor is obliged to discuss the proper debtor, before he can insist for payment against the cautioner. Where one is bound as full debtor with and for the principal, or conjunctly and severally with him, the two obligants are bound equally in the same obligation, each in solidum; and consequently, the cautioner, though he is but an accessory, may be sued for the whole, without either discussing or even citing the principal debtor. Cautioners for performance of facts by another, or for the faithful discharge of an office (e.g. for factors, tutors, &c.), cannot by the nature of their engagement be bound conjunctly and severally with the principal obligant, because the fact to which the principal is bound cannot possibly be performed by any other. In such engagements, therefore, the failure must be previously
constituted against the proper debtor, before action can be brought against the cautioner for making up the loss of the party suffering.
20. The cautioner, who binds himself at the desire of the principal debtor, has an actio mandati or of relief against him, for recovering the principal and interest paid by himself to the creditor, and for necessary damages; which action lies de jure, though the creditor should not assign to him on payment. As relief against the debtor is implied in fidejussory obligations, the cautioner, where such relief is cut off, is no longer bound: hence, the defence of prescription frees the cautioner, as well as the principal debtor.
21. But, (1.) Where the cautioner is interposed to an obligation merely natural, the relief is restricted to the sums that have really turned to the debtor's profit. (2.) A cautioner who pays without citing the debtor, loses his relief, in so far as the debtor had a relevant defence against the debt, in whole or in part. Relief is not competent to the cautioner, till he either pays the debt, or is distressed for it; except, 1st, Where the debtor is expressly bound to deliver to the cautioner his obligation cancelled, against a day certain, and has failed; or, 2dly, Where the debtor is vergens ad inopiam; in which case the cautioner may, by proper diligence, secure the debtor's funds for his own relief, even before payment or distress.
22. A right of relief is competent de jure to the cautioner who pays, against his co-cautioners, unless where the cautioner appears to have renounced it. In consequence of this implied relief, a creditor, if he shall grant a discharge to any one of the cautioners, must, in demanding the debt from the others, deduct that part as to which he has cut off their relief by that discharge. Where the principal debtor, in a bond in which a cautioner is bound, grants bond of corroboration with a new cautioner, both cautioners, as they intervene for the same debt, and at the desire of the same debtor, have a mutual relief against each other; but where the cautioner in the first bond signs as a principal obligant in the corroboration, the cautioner in the new bond, it would seem, would be intitled to a total relief against the first cautioner. At the same time, the decisions of the court of session are not perfectly at one upon this branch of the doctrine of cautionry.
23. Cautionry is also judicial, as in a suspension. It is sufficient to loose the cautioner, that when he became bound, the suspender had good reason to suspend, e.g. if the charger had at that period no title, or had not then performed his part, though these grounds of suspension should be afterwards taken off. In all maritime causes, where the parties are frequently foreigners, the defender must give caution judicio fisci et iudicatum solvi: such cautioner gets free by the death of the defender before sentence; but he continues bound, though the cause should be carried from the admiral to the court of session. This sort of caution is only to be exacted in causes strictly maritime.
24. It happens frequently, that a creditor takes two or more obligants bound to him, all as principal debtors, without fidejussion. Where they are so bound, for the performance of facts that are in themselves indivisible, they are liable each for the whole, or singuli in solidum. But, if the obligation be for a
sum of money, they are only liable pro rata; unless, (1.) Where they are in express words bound conjunctively and severally; or, (2.) In the case of bills or promissory notes. One of several obligants of this sort, who pays the whole debt, or fulfils the obligation, is intitled to a proportional relief against the rest; in such manner, that the loss must, in every case, fall equally upon all the solvent obligants.
25. Obligations for sums of money are frequently accompanied with an obligation for the annual rent or interest thereof. Interest (usura) is the profit due by the debtor, of a sum of money to the creditor for the use of it. The canon law considered the taking of interest as unlawful: the law of Moses allowed it to be exacted from strangers: and all the reformed nations of Europe have found it necessary, after the example of the Romans, to authorise it at certain rates fixed by statute. Soon after the reformation, our legal interest was fixed at the rate of 10 per cent. per annum; from which time it has been gradually reduced, till at last, by 12 Ann. stat. 2. c. 16. it was brought to five per cent. and has continued at that rate ever since.
26. Interest is due, either by law or by passion. It is due by law, either from the force of statute, under which may be included acts of federunt, or from the nature of the transaction. Bills of exchange, and inland bills, though they should not be protested, carry interest from their date in case of not acceptance; or from the day of their falling due, in case of acceptance and not payment. Where a bill is accepted, which bears no term of payment, or which is payable on demand, no interest is due till demand be made of the sum, the legal voucher of which is a notarial protest. Interest is due by a debtor after denunciation, for all the sums contained in the diligence, even for that part which is made up of interest. Sums paid by cautioners on distress carry interest, not only as to the principal sum in the obligation, but as to the interest paid by the cautioner. Factors named by the court of session are liable for interest, by a special act of federunt; see No clxxii. 11.
27. It arises ex lege, or from the nature of the transaction, that a purchaser in a sale is liable in interest for the price of the lands bought from the term of his entry, though the price should be arrested in his hands, or though the seller should not be able to deliver to him a sufficient progress or title to the lands; for no purchaser can in equity enjoy the fruits of the lands, while at the same time he retains the interest of the price: but lawful configuration of the price made by a purchaser, upon the refusal of the person's having right to receive it, stops the currency of interest. Where one intermeddles with money belonging to another which carries interest, he ought to restore it cum omni obventione et causa; and is therefore liable in the interest of it, as being truly an accessory of the subject itself. It is also from the nature of the transaction, that interest is in certain cases allowed to merchants or others in name of damages.
28. Interest is due by express passion, where there is a clause in a bond or obligation, by which money is made to carry interest. An obligation is not lawful, where it is agreed on, that the yearly interest of the sum lent, if it should not be paid punctually as it falls
falls due, shall be accumulated into a principal sum bearing interest; but an obligation may be lawfully granted, not only for the sum truly lent, but for the interest to the day at which the obligation is made payable, whereby the intermediate interest is accumulated into a principal sum from the term of payment. Interest may be also due by implied pactum: Thus, where interest upon a debt is by a letter promised for time past, such promise implies a pactum for interest as long as the debt remains unpaid; thus also, the use of payment of interest presumes a pactum, and when interest is expressed for one term, it is presumed to be bargained for till payment.
General properties of obligation.
29. The subject-matter of all obligations consists either of things, or of facts. Things exempted from commerce cannot be the subject of obligation. (See No clxii. 2.) One cannot be obliged to the performance of a fact naturally impossible; nor of a fact in itself immoral, for that is also in the judgment of law impossible. Since impossible obligations are null, no penalty or damage can be incurred for non-performance; but it is otherwise, if the fact be in itself possible, though not in the debtor's power; in which case the rule obtains, locum facti impossibilis subit damnum et interesse.
30. An obligation, to which a condition is adjoined, either naturally or morally impossible, is in the general case null; for the parties are presumed not to have been serious. But such obligation is valid, and the condition thereof held pro non scripta, (1.) In testaments; (2.) In obligations, to the performance of which the grantor lies under a natural tie, as in bonds of provision to a child. Where an obligation is granted under a condition, lawful but unfavourable, e.g. that the creditor shall not marry without the consent of certain friends, no more weight is given to the condition than the judge thinks reasonable. A condition, which is in some degree in the power of the creditor himself, is held as fulfilled, if he has done all he could to fulfil it. Implement or performance cannot be demanded in a mutual contract, by that party who himself declines or cannot fulfil the counterpart.
Donation.
31. Donation, so long as the subject is not delivered to the donee, may be justly ranked among obligations; and it is that obligation which arises from the mere good will and liberality of the grantor. Donations imply no warranty, but from the future facts of the donor. They are hardly revocable by our law for ingratitude, though it should be of the grossest kind: those betwixt man and wife are revocable by the donor, even after the death of the donee; but remuneratory grants, not being truly donations, cannot be so revoked. That special sort of donation, which is constituted verbally, is called a promise. The Roman law intitled all donors to the beneficium competentie, in virtue of which they might retain such part of the donation as was necessary for their own subsistence. Our law allows this benefit to fathers, with respect to the provisions granted to their children; and to grandfathers, which is a natural consequence of children's obligation to aliment their indigent parents; but to no collateral relation, not even to brothers.
32. Donations made in contemplation of death, or
mortis causa, are of the nature of legacies, and like them revocable: consequently, not being effectual in the grantor's life, they cannot compete with any of his creditors; not even with those whose debts were contracted after the donation. They are understood to be given from a personal regard to the donee, and therefore fall by his predecease. No deed, after delivery, is to be presumed a donatio mortis causa; for revocation is excluded by delivery.
33. Deeds are not presumed, in dubio, to be donations. Hence, a deed by a debtor to his creditor, if donation be not expressed, is presumed to be granted in security or satisfaction of the debt; but bonds of provision to children are, from the presumption of paternal affection, construed to be intended as an additional patrimony: yet a tocher, given to a daughter in her marriage-contract, is presumed to be in satisfaction of all former bonds and debts; because marriage contracts usually contain the whole provisions in favour of the bride. One who alments a person that is come of age, without an express pactum for board, is presumed to have entertained him as a friend, unless in the case of those who earn their living by the entertainment or board of strangers. But alimony given to minors, who cannot bargain for themselves, is not accounted a donation; except either where it is presumed, from the near relation of the person almenting, that it was given ex pietate; or where the minor had a father or curators, with whom a bargain might have been made.
Obligations may be dissolved by performance or Extinction implement, consent, compensation, novation, and confusion. (1.) By specific performance: thus, an obligation for a sum of money is extinguished by payment. The creditor is not obliged to accept of payment by parts, unless where the sum is payable by different divisions. If a debtor in two or more separate bonds to the same creditor, made an indefinite payment, without ascribing it at the time to any one of the obligations, the payment is applied, 1st, To interest, or to sums not bearing interest. 2dly, To the sums that are least secured, if the debtor thereby incurs no rigorous penalty. But, 3dly, If this application be penal on the debtor, e.g. by suffering the legal of an adjudication to expire, the payment will be applied so as to save the debtor from that forfeiture. Where one of the debts is secured by a cautioner, the other not, the application is to be so made, ceteris paribus, that both creditor and cautioner may have equal justice done to them.
2. Payment made by the debtor upon a mistake in fact, to one whom he believed, upon probable grounds, to have the right of receiving payment, extinguishes the obligation. But payment made to one, to whom the law denies the power of receiving it, has not this effect; as if a debtor, seized by letters of caption, should make payment to the messenger, for ignorantia juris neminem excusat. In all debts, the debtor, if he be not interpelled, may safely pay before the term, except in tack-duties or feu-duties; the payment whereof, before the terms at which they
are made payable, is construed to be collusive, in a question with a creditor of the landlord or superior. Payment is in dubio presumed, by the voucher of the debt being in the hands of the debtor; chirographum, apud debitorem reperitur, presumitur solutum.
By consent. 3. Obligations are extinguishable by the consent of the creditor, who, without full implement, or even any implement, may renounce the right constituted in his own favour. Though a discharge or acquittance granted by one whom the debtor bona fide took for the creditor, but who was not, extinguishes the obligation, if the satisfaction made by the debtor was real; yet where it is imaginary, the discharge will not screen him from paying to the true creditor the debt for which he had made no prior satisfaction. In all debts which are constituted by writing, the extinction, whether it be by specific performance or bare consent, must be proved, either by the oath of the creditor, or by a discharge in writing; and the same solemnities which law requires in the obligation, are necessary in the discharge: but, where payment is made, not by the debtor himself, but by the creditor's intromission with the rents of the debtor's estate, or by delivery to him of goods in name of the debtor, such delivery or intromission, being facti, may be proved by witnesses, though the debt should have been not only constituted by writing, but made real on the debtor's lands by adjudication.
4. A discharge, though it should be general, of all that the grantor can demand, extends not to debts of an uncommon kind, which are not presumed to have been under the grantor's eye. This doctrine applies also to general assignments. In annual payments, as of rents, feu-duties, interest, &c. three consecutive discharges by the creditor, of the yearly or termly duties, presume the payment of all precedings. Two discharges by the ancestor, and the third by the heir, do not infer this presumption, if the heir was ignorant of the ancestor's discharges. And discharges by an administrator, as a factor, tutor, &c. presume only the payment of all preceding duties incurred during his administration. This presumption arises from repeating the discharges thrice successively; and so does not hold in the case of two discharges, though they should include the duties of three or more terms.
5. Where the same person is both creditor and debtor to another, the mutual obligations, if they are for equal sums, are extinguished by compensation; if for unequal, still the lesser obligation is extinguished, and the greater diminished, as far as the course of debit and credit goes. To found compensation, (1.) Each of the parties must be debtor and creditor at the same time. (2.) Each of them must be debtor and creditor in his own right. (3.) The mutual debts must be of the same quality: hence, a sum of money cannot be compensated with a quantity of corns; because, till the prices are fixed, at which the corns are to be converted into money, the two debts are incommensurable. Lastly, compensation cannot be admitted, where the mutual debts are not clearly ascertained, either by a written obligation, the sentence of a judge, or the oath of the party. Where this requires but a short discussion, sentence for the pursuer is delayed for some time, ex equitate, that the defender may make good his ground of com-
pensation. Where a debt for fungibles is ascertained in money by the sentence of a judge, the compensation can have no effect farther back than the liquidation; because, before sentence, the debts were incommensurable: but, where a debt for a sum of money is, in the course of a suit, constituted by the oath of the debtor, the compensation, after it is admitted by the judge, operates retro, in so far as concerns the currency of interest, to the time when, by the parties acknowledgment, the debt became due: for, in this case, the debtor's oath is not what creates the debt, or makes it liquid; it only declares that such a liquid sum was truly due before. Compensation cannot be offered after decree, either by way of suspension or reduction; unless it has been formerly pleaded, and unjustly repelled. Decrees in absence are excepted.
6. The right of retention, which bears a near resemblance to compensation, is chiefly competent, where the mutual debts, not being liquid, cannot be the ground of compensation; and it is sometimes admitted ex equitate, in liquid debts, where compensation is excluded by statute: thus, though compensation cannot be pleaded after decree, either against a creditor or his assignee; yet, if the original creditor should become bankrupt, the debtor, even after decree, may retain against the assignee, till he gives security for satisfying the debtor's claim against the cedent. This right is frequently founded in the expence deburled or work employed on the subject retained, and so arises from the mutual obligations incumbent on the parties. It has never been disputed that retention of goods was competent, until payment or satisfaction of the debt incurred in relation to these goods; but it was found by the court of session, in a case which was very lately before them, that goods could not be retained by a manufacturer until payment of a prior debt; the debt incurred upon the goods in his hand being offered; and although the debtor had become bankrupt, and the manufacturer must otherwise rank as a common creditor for his prior debt. But retention may be sustained, though the debt due to him who claims it does not arise from the nature of the obligation by which he is debtor: thus, a factor on a land-estate may retain the sums levied by him in consequence of his factory, not only till he be paid of the disbursements made on occasion of such estate, but also till he be discharged from the separate engagements he may have entered into on his tenant's account.
7. Obligations are dissolved by novation, whereby one obligation is changed into another, without changing either the debtor or creditor. The first obligation being thereby extinguished, the cautioners in it are loosed, and all its consequences discharged; so that the debtor remains bound only by the last. As the creditor to whom a right is once constituted, ought not to lose it by implication, novation is not easily presumed, and the new obligation is construed to be merely corroborative of the old; but, where the second obligation expressly bears to be in satisfaction of the first, these words must necessarily be explained into novation. Where the creditor accepts of a new debtor, in place of the former who is discharged, this method of extinction is called delegation.
8. Obligations are extinguished confusion, where the By confu-
debit.
debit and credit meet in the same person, either by succession or singular title, &c. when the debtor succeeds to the creditor, or the creditor to the debtor, or a stranger to both; for one cannot be debtor to himself. If the succession, from which the confusio arises, happens afterwards to be divided, so as the debtor and creditor come again to be different persons; the confusio does not produce an extinction, but only a temporary suspension, of the debt.
HABITABLE rights, when they are clothed with investiture, are transmitted by disposition, which is a writing containing procuratory of resignation and precept of seisin; but those which either require no seisin, or on which seisin has not actually followed, are transmissible by simple assignation. He who grants the assignation is called the cedent; and he who receives it, the assignee or cessionary: if the assignee conveys his right to a third person, the deed of conveyance is called a transmission; and if he assigns it back to the cedent, a reversion. Certain rights are, from the uses to which they are destined, incapable of transmission, as alimentary rights: others cannot be assigned by the person invested in them, without special powers given to him; as tacks, reversions: the transmission of a third fore, is not presumed to be intended, without an express conveyance; as of paraphernal goods, which are so proper to the wife, that a general assignation, by her to her husband, of all that did or should belong to her at her decease, does not comprehend them. A liferent-right is, by its nature, incapable of a proper transmission; but its profits may be assigned, while it subsists.
2. Assignations must not only be delivered to the assignee, but intimated by him to the debtor. Intimations are considered as so necessary for completing the conveyance, that in a competition between two assignations, the last, if first intimated, is preferred.
3. Though, regularly, intimation to the debtor is made by an instrument, taken in the hands of a notary, by the assignee or his procurator; yet the law admits equipollencies, where the notice of the assignment given to the debtor is equally strong. Thus, a charge upon letters of horning at the assignee's instance, or a suit brought by him against the debtor, supplies the want of intimation; these being judicial acts, which expose the conveyance to the eyes both of the judge and of the debtor; or the debtor's promise of payment by writing to the assignee, because that is in effect a corroborating of the original debt. The assignee's possession of the right, by entering into payment of the rents or interest, is also equal to an intimation; for it imports, not only notice to the debtor, but his actual compliance: but the debtor's private knowledge of the assignment is not sustained as intimation.
4. Certain conveyances need no intimation. (1.) Indorsements of bills of exchange; for these are not to be fettered with forms, introduced by the laws of particular states. (2.) Bank-notes are fully conveyed by the bare delivery of them; for as they are payable to the bearer, their property must pass with their possession. (3.) Adjudication, which is a judicial conveyance, and marriage, which is a legal one, carry the full right of the subjects thereby conveyed, without
intimation: nevertheless, as there is nothing in these conveyances which can of themselves put the debtor in mala fide, he is therefore in tuto to pay to the wife, or to the original creditor in the debt adjudged, till the marriage or adjudication be notified to him. Assignments of moveable subjects, though they be intimated, if they are made retenta possessione, (the cedent retaining the possession), cannot hurt the cedent's creditors; for such rights are presumed, in all questions with creditors, to be collusive, and granted in trust for the cedent himself.
5. An assignation carries to the assignee the whole right of the subject conveyed, as it was in the cedent; and consequently, he may use diligence, either in his cedent's name while he is alive, or in his own.
6. After an assignation is intimated, the debtor cannot prove a payment, or compensation, by the oath of the cedent, who has no longer any interest in the debt; unless the matter has been made litigious by an action commenced prior to the intimation: but the debtor may refer to the oath of the assignee, who is in the right of the debt, that the assignment was gratuitous, or in trust for the cedent: either of which being proved, the oath of the cedent will affect the assignee. If the assignation be in part onerous, and in part gratuitous, the cedent's oath is good against the assignee, only in so far as his right is gratuitous. All defences competent against the original creditor in a moveable debt, which can be proved otherwise than by his oath, continue relevant against even an onerous assignee; whose right can be no better than that of his author, and must therefore remain affected with all the burdens which attended it in the author's person.
THE diligences, whereby a creditor may affect his debtor's moveable subjects, are arrestment and pounding. By arrestment is sometimes meant the securing of a criminal's person till trial; but as it is understood in the rubric of this title, it is the order of a judge, by which he who is debtor in a moveable obligation to the arrester's debtor, is prohibited to make payment or delivery till the debt due to the arrester be paid or secured. The arrester's debtor is usually called the common debtor; because, where there are two or more competing creditors, he is debtor to all of them. The person in whose hands the diligence is used is styled the arrestee.
2. Arrestment may be laid on by the authority either of the supreme court, or of an inferior judge. In the first case, it proceeds either upon special letters of arrestment, or on a warrant contained in letters of horning; and it must be executed by a messenger. The warrants granted by inferior judges are called precepts of arrestment, and they are executed by the officer proper to the court. Where the debtor to the common debtor is a pupil, arrestment is properly used in the hands of the tutor, as the pupil's administrator: this doctrine may perhaps extend to other general administrators, as commissioners, &c. But arrestment, used in the hands of a factor or steward, cannot found an action of forthcoming without calling the constituent. Where the debtor to the common debtor is a corporation, arrestment must be used in the hands of the directors or
treasurer, who represent the whole body. Arrestment, when it is used in the hands of the debtor himself, is inept; for that diligence is intended only as a restraint upon third parties.
3. All debts, in which one is personally bound, tho' they should be heritably secured, are grounds upon which the creditor may arrest the moveable estate belonging to his debtor. Arrestment may proceed on a debt, the term of payment whereof is not yet come, in case the debtor be vergens ad inopiam. If a debt be not yet constituted by decree or registration, the creditor may raise and execute a summons against his debtor for payment, on which pending action arrestment may be used, in the same manner as inhibition, which is called arrestment upon a dependence. If one's ground of credit be for the performance of a fact, or if his depending process be merely declaratory, without a conclusion of payment or delivery, such claims are not admitted to be sufficient grounds for arrestment.
4. Moveable debts are the proper subject of arrestment; under which are comprehended conditional debts, and even depending claims. For lessening the expense of diligence to creditors, all bonds which have not been made properly heritable by feisin are declared arrestable: but this does not extend to adjudications, wadsets, or other personal rights of lands, which are not properly debts. Certain moveable debts are not arrestable. (1.) Debts due by bill, which pass from hand to hand as bags of money. (2.) Future debts; for though inhibition extends to adquirenda as well as acquisita, yet arrestment is limited, by its warrant, to the debt due at the time of serving it against the arrestee. Hence, an arrestment of rents or interest carries only those that have already either fallen due or at least become current. Claims, depending on the issue of a suit, are not considered as future debts; for the sentence, when pronounced, has a retrospect to the period at which the claim was first founded. The like doctrine holds in conditional debts. (3.) Alimentary debts are not arrestable; for these are granted on personal considerations, and so are not communicable to creditors: but the past interest due upon such debt may be arrested by the person who has furnished the alimony. One cannot secure his own effects to himself for his maintenance, so as they shall not be affectable by his creditors. Salaries annexed to offices granted by the king, and particularly those granted to the judges of the Session, and the fees of servants, are considered as alimentary funds; but the surplus fee, over and above what is necessary for the servant's personal uses, may be arrested. It has also been found, that a wadset sum consigned after an order of redemption used, but before decree of declarator, is not arrestable.
5. If, in contempt of the arrestment, the arrestee shall make payment of the sum, or deliver the goods arrested, to the common debtor, he is not only liable criminally for breach of arrestment, but he must pay the debt again to the arrester. As the law formerly stood, an arrestment used at the market cross of Edinburgh, pier and shore of Leith, against a person furth of the kingdom, was good; so that if the arrestee made payment to his creditor after the date of the arrestment, he was found liable in second payment to the arrester, because he had done all in his power to notify
his diligence. This, however, is very properly altered by § 3. of the act of the 23d Geo. III. which declares, that an arrestment used at the market cross of Edinburgh, pier and shore of Leith, in the hands of any person out of the kingdom, without other sufficient notification, shall not interpell the arrestee from paying bona fide to the original creditor. Arrestment is not merely prohibitory, as inhibitions are; but is a step of diligence which founds the user in a subsequent action, whereby the property of the subject arrested may be adjudged to him. It therefore does not, by our latter practice, fall by the death of the arrestee; but continues to subsist, as a foundation for an action of forthcoming against his heir, while the subject arrested remains in medio. Far less is arrestment lost, either by the death of the arrester, or of the common debtor.
6. Where arrestment proceeds on a depending action, it may be loosed by the common debtor's giving security to the arrester for his debt in the event it shall be found due. Arrestment founded on decrees, or on registered obligations, which in the judgment of law are decrees, cannot be loosed but upon payment or consignment; except, (1.) Where the term of payment of the debt is not yet come, or the condition has not yet existed. (2.) Where the arrestment has proceeded on a registered contract, in which the debts or mutual obligations are not liquid. (3.) Where the decree is suspended, or turned into a libel; for, till the suspension be dissolved, or the pending action concluded, it cannot be known whether any debt be truly due. A loosing takes off the nexus which had been laid on the subject arrested; so that the arrestee may thereafter pay safely to his creditor, and the cautioner is substituted in place of the arrestment, for the arrester's security: yet the arrester may, while the subject continues with the arrestee, pursue him in a forthcoming, notwithstanding the loosing.
7. Arrestment is only an inchoated or begun diligence; to perfect it, there must be an action brought by the arrester against the arrestee, to make the debt or subject arrested forthcoming. In this action, the common debtor must be called for his interest, that he may have an opportunity of excepting to the lawfulness or extent of the debt on which the diligence proceeded. Before a forthcoming can be pursued, the debt due by the common debtor to the arrester must be liquidated; for the arrester can be no further intitled to the subject arrested than to the extent of the debt due to him by the common debtor. Where the subject arrested is a sum of money, it is, by the decree of forthcoming, directed to be paid to the pursuer towards satisfying his debt; where goods are arrested, the judge ordains them to be exposed to sale, and the price to be delivered to the pursuer. So that, in either case, decrees of forthcoming are judicial assignations to the arrester of the subject arrested.
8. In all competitions, regard is had to the dates, not of the grounds of debt, but of the diligences proceeding upon them. In the competition of arrestments, the preference is governed by their dates, according to the priority even of hours, where it appears with any certainty which is the first. But, as arrestment is but a begun diligence, therefore if a prior arrester shall neglect to insist in an action of forthcoming for such a time as may be reasonably construed into a desertion of his
Law of Scotland. his begun diligence, he loses his preference. But, as dereliction of diligence is not easily presumed, the diligence of above two years, between the first arrestment and the decree of forthcoming, was found not to make such a mora as to entitle the posterior arrester to a preference. This rule of preference, according to the dates of the several arrestments, holds, by our present practice, whether they have proceeded on a decree or on a dependence; on debts not yet payable, or on debts already payable; provided the pendency shall have been closed, or the debt have become payable, before the issue of the competition.
By act 23d Geo. III. § 2. it is enacted, that when a debtor is made bankrupt, in terms of the act 1696, as thereby extended (clxxxiii. 13.), all arrestments which shall have been used for attaching any personal effects of such bankrupt within thirty days prior to the bankruptcy, or within four calendar months immediately subsequent, shall be pari passu preferable: and in order to save as far as possible the expence of a multiplicity of arrestments, it is declared, that where the effects of a debtor are arrested by any creditor within thirty days before the bankruptcy, or within four months after it, and a process of forthcoming or multiplepointing is brought in which such arrestment is founded on, it shall be competent for any other creditor producing his interest, and making his claim in the said process, at any time before the expiration of the said four months, to be ranked in the same manner as if he had used the form of arrestment; the expence of raising the process, and of the diligence at the instance of the creditor who raises it, being always paid out of the common fund. We here again repeat, that the enactments of this statute are only temporary, and not yet a permanent part of the law of Scotland, whatever they may become when the subject is resumed by the legislature upon the expiry of the act.
9. In the competition of arrestments with assignations, an assignation by the common debtor, intimated before arrestment, is preferable to the arrestment. If the assignation is granted before arrestment, but not intimated till after it, the arrester is preferred.
Pounding. 10. POUNDING is that diligence affecting moveable subjects, by which their property is carried directly to the creditor. No pounding can proceed, till a charge be given to the debtor to pay or perform, and the days thereof be expired, except poundings against vassals for their feu-duties, and poundings against tenants for rent, proceeding upon the landlord's own decree; in which the ancient custom of pounding without a previous charge continues. A debtor's goods may be pointed by one creditor, though they have been arrested before by another; for arrestment being but an imperfect diligence, leaves the right of the subject still in the debtor, and so cannot hinder any creditor from using a more perfect diligence, which has the effect of carrying the property directly to himself.
11. No cattle pertaining to the plough, nor instruments of tillage, can be pointed in the time of labouring or tilling the ground, unless where the debtor has no other goods. By labouring time is understood, that time, in which that tenant, whose goods are to be pointed, is ploughing, though he should have been earlier or later than his neighbours; but summer fallowing does not fall under this rule.
VOL. IX. Part II.
12. In the execution of pounding, the debtor's goods must be appraised, first, on the ground of the lands where they are laid hold on, and a second time at the market-cross of the jurisdiction, by the stated appraisers thereof; or, if there be none, by persons named by the messenger or other officer employed in the diligence. Next, the messenger must, after public intimation by three oyesles, declare the value of the goods according to the second appraisement, and require the debtor to make payment of the debt, including interest and expences. If payment shall be offered to the creditor, or in his absence to his lawful attorney; or if, in case of refusal by them, confiscation of the debt shall be made in the hands of the judge-ordinary or his clerk, the goods must be left with the debtor; if not, the messenger ought to adjudge and deliver them over, at the appraised value, to the user of the diligence towards his payment: and the debtor is intitled to a copy of the warrant and executions, as a voucher that the debt is discharged in whole or in part by the goods pointed.
13. Ministers may point for their stipends, upon one appraisement on the ground of the lands, and landlords were always in use to point so, for their rents. Appraisement of the goods at the market-cross of the next royal borough, or even of the next head-borough of stewardry or regality, though these jurisdictions be abolished, is declared as sufficient as if they were carried to the head-borough of the shire. Pounding, whether it be considered as a sentence, or as the execution of a sentence, must be proceeded in between sun-rising and sun-setting; or at least it must be finished before the going off of day-light.—The powers of the officer Powers of messengers employed in the execution of poundings, are not clearly defined by custom, in the case of a third party claiming the property of the goods to be pointed. This is certain, that he may take the oath of the claimant, upon the verity of his claim; and if from thence it shall appear that the claimant's title is collusive, he ought to proceed in the diligence; but if there remains the least doubt, his safest course is to deliver the goods to the claimant, and to express in his execution the reasons why pounding did not proceed.
14. Any person who stops a pounding via facti, or groundless pretences, is liable, both criminally, in the pains of deforecence (see No clxxxvi. 15.), and civilly, in the value of the goods which might have been pointed by the creditor.
By the foresaid statute 23d Geo. III. § 4. it is declared, that after a person is rendered bankrupt, as thereby directed, no pounding of the moveables belonging to such bankrupt, within 30 days before his bankruptcy, or within four calendar months thereafter, shall give a preference to such pointer over the other lawful creditors of the bankrupt; but the goods so pointed shall be considered as in medio, and the person receiving the price of them shall be liable to make the same forthcoming, so as that all the other creditors of the bankrupt who are possessed of liquidate grounds of debt or decrees for payment, shall be intitled to their proportion of the same; provided they make their claim by summoning the pointer at any time before the expiration of the said four months, deducting always the expence of such pounding from the first end of the price of such goods, together with 20 per cent. on the appraised value, which the pointer shall retain
to account of his debt in preference to the other creditors; reserving liberty to him to rank on the remaining sum for the full amount of the debt contained in his diligence. And it is by the said act further declared, that where any person concerned in trade or manufactures is bankrupt, as before mentioned, it may be lawful for any creditor, to the amount of L. 100, or any two creditors to the amount of L. 150, or any three or more creditors to the amount of L. 200 or upwards, to apply for sequestration of the estate real and personal belonging to the debtor: after awarding which, an interim factor, and then a trustee, shall be chosen by the creditors, who is to conduct the business of the sequestration, according to the various rules fixed and laid down by the statute. The act, however, expressly excludes all others, except those concerned in trade or manufactures, from the benefit of the sequestration; but it is probable, when it comes to be renewed or digested in another form, this part of it will suffer an alteration.