from perifhing; e. g. where an heir is deliberating whether to enter; where a minor is without tutors; where a fucceffion opens to a perfon refiding abroad; in all which cafes the factor is fubjected to the rules laid down in act of federunt, Feb. 13, 1730. By the act of 33 Geo. III. cap. 74, the eftates of thofe engaged in trade and manufactures may be fequeftered at the fuit of a creditor to the extent of L.100, two creditors to the extent of L.150, and three or more to the extent of L200. The bankrupt's funds are placed under the management, first of a factor, then of a trustee, chofen by the creditors. But to detail their duty and powers, and the different modes of procedure, would require more room than a work of the prefent nature will permit.

12. The word BANKRUPT is fometimes applied to perfons whofe funds are not fufficient for their debts; and fometimes, not to the debtor, but to his eftate. The court of feffion are empowered, at the fuit of any real creditor, to try the value of a bankrupt's eftate, and fell it for the payment of his debts. 13. No procefs of fale, at the fuit of a creditor, can proceed without a proof of the debtor's bankruptcy, or at leaft that his lands are fo charged with debts, that no prudent perfons will buy from him; and therefore the fummons of fale muft comprehend the debtor's whole eftate. The debtor, or his apparent heir, and all the real creditors in poffeffion, must be made parties to the fuit; but it is fufficient if the other creditors be called by edictal citation. The fummons of fale contains a conclufion of ranking or preference of the bankrupt's creditors. In this ranking, firft and fecond terms are affigned to the whole creditors for exhibiting in court (or producing) their rights and diligences; and the decree of certification proceeding thereupon, againft the writings not produced, has the fame effect in favour of the creditors who have produced their rights, as if that decree had proceeded upon an action of reduction-improbation. See CHAP. III.; SECT. I. § 3. By the late bankrupt acts, the fale may precede the ranking of the creditors, unlefs the court, upon application of the creditors, or any of them, fhall find fufficient caufe to delay the fale. The irredeemable property of the lands is adjudged by the court to the highest offerer at the fale. The creditors receiving payment muft grant to the purchafer abfolute warrandice, to the extent of the fums received by them; and the lands purchased are declared difburdened 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 confignation of it. By the act 1695, purchafers were bound to confign the price in the hands of the magiftrates of Edinburgh; but now they may confign it in the royal bank, or bank of Scotland. The only remedy provided to fuch creditors as judge themfelves hurt by the fale or divifion 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 expense of these proceffes is deburfed by the factor out of the rents in his hands; by which the whole burden of fuch expenfe falls upon the pofterior creditors.

15. Apparent heirs are entitled to bring actions of fale of the eftates belonging to their ancestors, whether bankrupt or not; the expenfe of which ought to fall upon the purfuer, if there is any excrefcence of the price, after payment of the cre ditors; but if their be no excrefcence, the credi tors, who alone are gainers by the sale, ought to bear the charge of it.

16. As proceffes of ranking and sale are design. ed for the common intereft 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 feveral different subjects, he cannot ufe his preference arbitrarily, by favouring one creditor more than another; but muft allocate his univerfal or catholic debt proportionally against all the fubjects or parties whom it affects.

II. MOVEABLE RIGHTS.

THE law of heritable rights being explained, Moveable Rights fall next to be confidered; the doctrine of which depends chiefly on the nature of Obligations.

SECT. XIII. Of OBLIGATIONS and CONTRACTS

in GENERAL,

1. AN obligation is a legal tie, by which one is bound to pay or perform fomething to another, Every obligation on the perfon obliged implies an oppofite right in the creditor, fo 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 perfonal. There is this effential difference between a real and a personal right, that a jus in re, whether of property or of an inferior kind, as fervitude, entitles the perfon vefted with it to poffefs the fubject as his own; or if he is not in poffeffion, to demand it from the poffeffors; whereas the creditor in a perfonal right has only jus ad rem, or a right to compel the debtor to fulfil his obligation, without any right in the subject itfelf, which the debtor is bound to transfer to him. One cannot oblige himself, but by a prefent act of the will. A bare refolution, therefore, ar purpose, to be obliged, is alterable at pleasure.

2. Obligations are either, 1. Merely natural, where one perfon is bound to another by the law of nature, but cannot be compelled by any civil action to the performance. Or, 2. Merely civil, which may be fued upon by an action, but are elided by an exception in equity; as in the cafe of obligations granted through force or fear, &c. 3. Proper or full obligations are those which are fupported both by equity and the civil fanction.

3. Obligations may be alfo divided into, 1. Pure, to which neither day nor condition is adjected. Thefe may be exacted immediately. 2. Obliga tions ex die, which have a day adjected to their performance. 3. Conditional obligations; in which there is no proper debt (dies non cedit) till the condition be purified, because it is poffible the condition may never exift; but the granter, even of thefe, has no right to refile.

4. Obligations, when confidered with regard to their caufe, were divided by the Romans into E2 thofe

off by pirates, or boufe-breakers. Not only the mafters of fhips, but their employers, are liable each of them for the fhare he has in the fhip; but, by the prefent cuftom of trading nations, the goods brought into a hip must have been delivered to the mafter or mate, or entered into the fhip-books. Carriers fall within the intendment of this law; and practice has extended it to vintners within borough. The extent of the damage fuftained by the party may be proved by his oath in litem. 12. SEQUESTRATION, whether voluntarily confented to by the parties, or authorised by the judge, is a kind of depofit; but as the office of fequeftree, to whose care the subject in dispute is committed, is not confidered as gratuitous, he cannot throw it up at pleasure, as a common depofitary may do; and he is liable in the middle degree of diligence. Confignation of money is allo a depofit. The risk of the configned money lies on the configner, where he ought to have made payment, and not confignation; or has configned only a part; or has chofen for confignatory, a perfon neither named by the parties nor of good credit. It is the office of a confignatory to keep the money in fafe cuftody till it be called for: If therefore he puts it out at intereft, he must run the hazard of the debtor's infolvency; but, for the fame reason, though he should draw intereft for it, he is liable in none to the configner.

13. PLEDGE, when opposed to wadfet, is a contract, by which a debtor puts into the hands of his creditor a special moveable fubject in fecurity of the debt, to be redelivered on payment. Where a fecurity is established by law to the creditor, upon a subject which continues in the debtor's poffeffion, it has the special name of an hypothec. Tradefmen and fhip carpenters have an hypothec on the houfe or fhip repaired, for the materials and other charges of reparation; but not for the expenfe of building a new fhip. This, however, muft not now be understood to apply univerfally; for the court of feffion, in different cafes which lately occurred before them, and founding upon the law and practice of England in fimilar cafes, have found, that no hypothec exifts for the expense of repairs done in a bome port. Owners of thips have an hypothec on the cargo for the freight; heritors on the fruits of the ground; and landlords on the invecta et illata, for their rents. Writers alfo, and agents, have a right of hypothec, or more properly of retention, in their conftituent's writings, for their claim of pains and debursements. A creditor cannot, for his own payment, fell the fubject impignorated, without applying to the judge ordinary for a warrant to put it up to public fale or roup; and to this ap. plication the debtor ought to be made a party. SECT. XIV. Of OBLIGATIONS by WORD or WRIT. 1. THE appellation of verbal may be applied to all obligations, to the conftitution of which writing is not effential, which includes both real and confenfual contracts; but as these are explained under feparate titles, obligation by word, in the fenfe of this rubric, must be restricted, either to promifes, or to fuch verbal agreements as have no ípecial name to diftinguish 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 promife; which, as it is gratuitous, does not require the acceptance of him to whom the promife is made. An offer, which must be diftinguished from a promise, implies fomething to be done by the other party; and confequently 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 muft neceffarily intervene in all ob ligations and bargains concerning heritable subjects, though, they should be only temporary; as tacks, which, when they are verbal, laft but for one year, In thefe no verbal agreement is binding, though it fhould be referred to the oath of the party; for, till writing is adhibited, law gives both parties a right to refile, as from an unfinished bargain; which is called locus panitentia. If, upon a verbal bargain of lands, part of the price fhall be paid by him who was to purchase, the interventus rei, the actual payment of money, creates a valid obligation, and gives a beginning to the contract of fale: and, in general, wherever matters are no longer entire, the right to refile feems to be excluded. An agreement, whereby a real right is paffed from, or reftricted, called pactum liberatorium, may be perfected verbally; for freedom is favourable, and the purpose of fuch agreement is rather to diffolve than to create an obligation. Writing is alfo effential to bargains made under condition that they fhall be reduced into writing; for in fuch cafes, it is pars contractus, that, till writing be adhibited, both parties shall have liberty to withdraw. In the fame manner, verbal or nuncupative teftaments are rejected by our law; but verbal legacies are fuftained, where they do not exceed 1ool. Scots.

3. Anciently, when writing was little used, deeds were executed by the party appending his feal to them in prefence of witneffes. For preventing frauds that might happen by appending feals to falfe deeds, the fubfcription alfo of the granter was afterwards required, and, if he could not write, that of a notary. As it might be of dangerous confequences to give full force to the fubfcription of the parties by initials, which is more eafily counterfeited, our practice, in order to fuftain fuch fubfcription, feems to require a proof, not only that the granter ufed to fubfcribe in that way, but that de facto he had fubfcribed the deed in queftion; at leaft, fuch proof is required if the inftrumentary witneffes 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 fubfcribed by wife, by two notaries before four witnesses specially the principal parties, if they can fubfcribe; otherdefigned. The fubfequent practice extended this requifite of the defignation of the witneffes to the cafe where the parties themselves fubfcribed. Cuftom has conftrued obligations for fums exceeding Icol. Scots, to be obligations of importance. In a divifible obligation, ex. gr. for a fum of money, though exceeding 1ool. the fubfcription of one notary is fufficient, if the creditor refricts his claim to rool. But in an obligation indivifible,

indivifible e. g. for the performance of a fact, if it be not fubfcribed in terms of the statute, it is void. When notaries thus atteft a deed, the atteftation or docquet must specially express that the granter gave them a mandate to fign; nor is it fufficient 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 diftinction, must be inferted. The witneffes muft both fubfcribe as witneffes, and their names and defignations be inferted in the body of the deed; and all fubfcribing witnesses muft know the granter, and either fee him fubfcribe or hear him acknowledge his fubfcription; otherwife they are declared punishable as acceffary to forgery. Deeds, decrees, and other fecurities confifting of more than one sheet, may be written by way of book, in place of the former cuftom of pafting together the feveral fheets, and figning the joinings on the margin; provided each page be figned by the granter, and marked by its number, and the tefting claufe exprefs the number of pages.

6. Inftruments of feifin are valid, if fubfcribed by one notary, before a reasonable number of witneffes, which is extended by practice to inftruments of refignation. Two witneffes are deemed a reasonable number to every deed that can be executed by one notary. It is not neceffary that the witneffes to a notorial inftrument or execution fee the notary or meffenger fign; for they are called as witneffes to the tranfaction which is attefted, and not to the subscription of the perfon attefting.

7. A new requifite has been added to certain deeds fince the union, for the benefit of the reve nue: They must be executed on ftamped paper or parchment, paying a certain duty to the crown. Thefe duties must all be paid before the paper is wrote upon, under a penalty; but they are fo numerous and complex, that it would be tedious, even if it fell under our plan, to enter into an enumeration of them. They and the exemptions from them will be found at length in the ftamp tables kept at the different offices, and ufually inferted in the Scottish almanacks.

8. The granter's name and defignation are effential, not properly as folemnities, 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 paff ed from hand to hand, like notes payable to the bearer; but as there was no method for the creditor of a perfon poffeffed 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 indorfations of bills of exchange.

9. Certain privileged writings do not require the ordinary folemnities. 1. Holograph deeds (written by the granter himself) are effectual with out witneffes. The date of no holograph writing, except a bill of exchange (fee next paragraph), can be proved by the granter's own affertion, in prejudice either of his heir, or his creditors, but must be supported by other adminicles. 2. Tef taments, if executed where men of skill and bufinefs cannot be had, are valid, though they should

not be quite formal; and let the fubject of a tef tament be ever so valuable, one notary figning for the teftator, before two witneffes, is in practice fufficient. Clergymen were frequently notaries before the reformation; and, though they were afterwards prohibited to act as notaries, the cafe of testaments is excepted; so that these are fupported by the atteftation of one minister, with two witneffes. 3. Difcharges to tenants are fuftained without witneffes, from their prefumed rufticity or ignorance in business. 4. Miffive letters in re mercatoria, commiffions, and fitted accounts in the courfe of trade, and bills of exchange, though they are not holograph, are, from the favour of commerce, fuftained without the ordinary folemnities.

10. A BILL OF EXCHANGE is an obligation in the form of a mandate, whereby the drawer or mandant defires him to whom it is directed, to pay a certain fum, at the day and place therein men. tioned, to a third party. Bills of exchange are drawn by a perfon in one country to his correspon dent 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 precife extent of the fum contained in the draught. The creditor in the bill is fometimes called the poffeffor, or porteur. As parties to bills are of different countries, queftions concerning them ought to be determined by the received cuftom of trading nations, unless where fpecial ftatute interpofes. For this reason, bills of exchange, though their form admits not of witneffes, yet prove their own dates, in queftions either with the heir or creditors of the debtor.

11. A bill is valid, without the defignation either of the drawer or of the person to whom it is made payable: It is enough, that the drawer's fubfcription appears to be truly his; and one's being poffeffor 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 perfon drawn on fhould not be defigned, his acceptance prefumes that it was he whom the drawer had in his eye. Bills drawn blank, in the creditor's name, fall under the ftatutory nullity; for though indorfations of bills are excepted from it, bills themselves are not. Not only the perfon drawn upon muft fign his acceptance, but the drawer muft fign his draught, before any obligation can be formed against the accepter: Yet it is fufficient in prac tice, that the drawer figns before the bill be produced in judgment; though it should be after the death both of the creditor and accepter. A creditor in a bill may transmit it to another by indorfation, though the bill fhould not bear to his order; by the fame rule that other rights are tranfmiffible by affignation, though they do not bear to affignees.

12. The drawer, by figning his draught, becomes liable for the value to the creditor in the bill, in cafe the person drawn upon either does not accept, or after acceptance does not pay; for he is prefumed to have received value from the creditor at giving him the draught, though it fhould not bear for value received: But, if the drawer was debtor to the creditor in the bill before the draught, the bill is prefumed to be given

towards

towards payment of the debt, unless it exprefsly bears for value. The perfon drawn upon, if he refufe to accept, while he has the drawer's money in his hands, is liable to him in damages. As a bill prefumes value from the creditor, indorfation prefumes value from the indorfee; who therefore, if he cannot obtain payment from the accepter, has recourse against the indorfer, unless the bill be indorsed in thefe words, without recourse.

13. Payment of a bill by the accepter, acquits both the drawer and him at the hands of the creditor; but it entitles the accepter, if he was not the drawer's debtor, to an action of recourfe against him; and, if he was, to a ground of compenfation.

14. Bills, when indorfed, are confidered as fo many bags of money delivered to the onerous indorfee; which therefore carry right to the contents, free of all burdens that do not appear on the bills themselves. Hence, a receipt or difcharge, by the original creditor, if granted on a feparate paper, does not exempt the accepter from fecond payment to the indorfee; hence alfo, no ground of compenfation competent to the accepter against the original creditor can be pleaded against the indorfee: but, if the debtor fhall prove by the oath of the indorfee, either that the bill is indorsed to him for the indorfer's own behoof, or that he paid not the full value for the indorfation, the indorfee is juftly confidered as but a name; and therefore all exceptions, receivable against the original creditor, will be fuftained against him. A protefted bill, after registration, cannot be tranfmitted by indorfation, but by assignation.

15. Bills must be negociated by the poffeffor, against the perfon drawn upon, within a precife time, in order to preferve recourfe against the drawer. In bills payable fo many days after fight, the creditor has a difcretionary power of fixing the payment fomewhat fooner or later, as his occafions fhall 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 fhortened by the time of acceptance. For the fame reafon, the acceptance of bills, payable on a precife day, need not be dated: but where a bill is drawn payable fo many days after fight, it muft; because there the term of payment depends on the date of acceptance.

16. Though bills are, in ftrict law, due the very day on which they are made payable, and may therefore be protefted 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 proteft the bill; but if he delay protefting till the day after the laft day of grace, he lofes his recourfe. Where a bill is protefted, either for not acceptance or not payment, the difhonour must be notified to the draw er or indorfer, within three pofts at fartheft. This ftrictness of negociation is confined to fuch bills as may be protefted by the poffeffor upon the third day of grace; where, therefore, bills are indorfed after the days of grace are expired, the indorfee is left more at liberty, and does not lofe his recourfe, though he should not take a formal proteft for not payment, if, within a reasonable time, he hall give the indorfer notice of the accepter's

refufing to pay. Not only does the poffeffor, who neglects ftrict negociation, lofe his recourfe against the drawer, where the perfon drawn upon becomes afterwards bankrupt; but tho' he should continue folvent: for he may in that cafe recover payment from the debtor, and fo is not to be indulged in an unneceffary process against the drawer, which he has tacitly renounced by his negli gence. Recourfe is preferved againft the drawer, though the bill fhould not be duly negociated, if the perfon 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 fuperadded to bills by ftatute are, that though, by their form, they can have no claufe of registration, yet, if duly protefted, they are registrable within fix months after their date in cafe of not acceptance, or in fix months after the term of payment in the case of not payment; which registration is made the foundation of fummary diligence, either against the drawer or indorfer in the cafe of not accep tance, or against the accepter in the cafe of not payment. This is extended to inland bills, i. e bills both drawn and made payable in Scotland. It is only the principal fum in the bill, and interest, that can be charged for fummarily; the exchange, when it is not included in the draught, the re-exchange incurred by suffering the bill to be protefted and returned, and the expenfe of diligence, muft all be recovered by an ordinary action; because these are not liquid debts, and fo must be previously conftituted.

18. Bills, when drawn payable at any confiderable distance of time after date, are denied the pri vileges of bills; for bills are intended for currency, and not to lie as a fecurity in the creditor's hands. Bills are not valid which appear ex facie to be donations. No extrinfic ftipulation ought to be contained in a bill which deviates from the proper na◄ ture of bills; hence, a bill to which penalty is adjected is null. Inland precepts drawn, not for money, the medium of trade, but for fungibles, are null, as wanting writer's name and witneffes.

19. Promiffory notes had not formerly the pri vileges of bills of exchange; but they were in practice, and by the ftatute 12 Geo III. placed upon the fame footing, and declared to have the fame privileges. Both prefcribe in fix years after the term of payment. Bank-notes and poft-bills are excepted from this prefcription; nor does it run during the years of the creditor's minority. Inland billa and promiffory notes must be protefted within the days of grace, to fecure recourse; and the difhonour notified within 14 days after the proteft. Summary diligence may pass not only against the acepter, but likewife against the drawer, and all indor fees jointly and feverally; and at the inftance of any indorfee, though the bill was not protested in his name, upon his producing receipt or letter from the protefting indorfee. This act was in force only for 7 years after 15th May 1772, and to the end of the then next feffion of parliament. But as it was found by experience, that it had been of great advantage to Scotland, it was made perpetual by the act 23 Geo. III. fo that it has now become a permanent part of the law of Scotland,

20. As