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or the debtor's promise of payment by writing to the affignee, because this is in effect corroboration of the original debt. The affignee's poffeffion of the right, by entering into payment of the rents or intereft, 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 affignment is not fuftained as

intimation.

4. Certain conveyances need no intimation: 1. Indorfations of bills of exchange; for thefe 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 muft pafs with their poffeffion. 3. Adjudication, which is a judicial conveyance, and marriage, which is a legal one, carry the full right of the fubjects thereby conveyed, without intimation: nevertheless, as there is nothing in thefe 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. Affignments of moveable subjects, though they be intimated, if they are made retenta poffeffione (the cedent retaining the poffeffion), cannot hurt the cedent's creditors; for fuch rights are prefumed, in all queftions with creditors, to be collufive, and granted in truft for the cedent himself.

5. An affignation carries to the affignee the whole right of the fubject conveyed, as it was in the cedent; and confequently, he may ufe diligence, either in his cedent's name while he is alive, or in his own.

6. After an affignation is intimated, the debtor cannot prove a payment, or compenfation, by the oath of the cedent, who has no longer any intereft 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 affignee, who is in the right of the debt, that the affignment was gratuitous, or in truft for the cedent: either of which being proved, the oath of the cedent will affect the affignee. If the affignation be in part onerous, and in part gratuitous, the cedent's oath is good againft the affignee only fo far as his right is gratuitous. All defences competent againft the original creditor in a moveable debt, which can be proved other wife than by his oath, continue relevant against even an onerous affignee; whofe right can be no better than that of his author, and muft therefore remain affected with all the burdens which attended it in the author's person.

SECT. XVIII. Of ARRESTMENTS and POIND

INGS.

1. THE diligences, whereby a creditor may affect his debtor's moveable fubjects, are arreftment and poinding. By arreftment is fometimes meant the fecuring of a criminal's perfon 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 arrefter's debtor, is prohibited to make payment or delivery till the debt due to the arrefter be paid or fecured. The arrester's debtor is usually called the common debt.

or; becaufe, where there are two or more competing creditors, he is debtor to all of them. The perfon in whofe hands the diligence is ufed is ftyled the areftee.

2. Arreftment may be laid on by the authority either of the fupreme court, or of an inferior judge. In the firft cafe, it proceeds either upon fpecial letters of arreftment, or on a warrant contained in letters of horning; and it must be executed by a meffenger. The warrants granted by inferior judges are called precepts of arreftment, and they are executed by the officer proper to the court.

3. All debts, in which one is perfonally bound, though they fhould be heritably fecured, are grounds upon which the creditor may arreft the moveable estate belonging to his debtor. Arreftment may proceed on a debt, the term of payment whereof is not yet come, in cafe the debtor be vergens ad inopiam.

4. Moveable debts are the proper subject of arreftment; under which are comprehended conditional debts, and even depending claims. For leffening the expenfe of diligence to creditors, all bonds which have not been made properly heritable by feifin are declared arreftable; but this does not extend to adjudications, wadfets, or other perfonal rights of lands, which are not properly debts. Certain moveable debts are not ar reftable: 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 adquifita, yet arreftment is limited, by its warrant, to the debt due at the time of serving it against the arreftee. Hence, an arreftment of rents or intereft carries only thofe that have already either fallen due, or at leaft become current. Claims, depending on the issue of a suit, are not confidered as future debts; for the fentence, when pronounced, has a retrospect to the period at which the claim was firft founded. The like doctrine holds in conditional debts: 3. Alimentary debts; for these are granted on perfonal confiderations, and fo are not communicable to creditors: but the past interest due upon fuch debts may be arrested by the perfon who has furnished the alimony. One cannot fecure his own effects to himself for his maintenance, fo as they fhall not be affectable by his creditors. Salaries annexed to offices granted by the king, and particularly thofe granted to the judges of the feffion, and the fees of fervants, are confidered as alimentary funds; but the furplus fee, over and above what is neceffary for the fervant's perfonal uses, may be arrested. It has alfo been found, that a wadfet fum configned after an order of redemption used, but before decreet of declarator, is not arreftable.

5. If, in contempt of the arreftment, the arref tee fhall make payment of the fum, or deliver the goods arrefted, to the common debtor, he is not only liable criminally for breach of arrestment, but he muft pay the debt again to the arrester. As the law formerly stood, an arreftment used at the market-crofs of Edinburgh, pier and fhore of Leith, against a perfon furth of the kingdom, was good; fo that if the arreftee made payment to his creditor after the date of the arrestment, he

was

was found liable in fecond payment to the arrefter, 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 23 Geo. III. which declares, that an arreftment ufed at the market-crofs of Edinburgh, pier and thore of Leith, in the hands of any perfon out of the kingdom, without other fufficient notification, fhall not interpel the arreftee from paying bona fide to the original creditor. Areftment is not merely prohibitory, as inhibitions are; but is a step of diligence which founds the ufer in a fubfequent action, whereby the property of the subject arrefted may be adjudged to him. It therefore does not, by our latter practice, fall by the death of the arreftee; but continues to fubfift, as a foundation for an action of forthcoming against his heir, while the fubject arrested remains in medio. Far lefs is arreftment loft, either by the death of the arrefter, or of the common debtor.

6. Where arreftment proceeds on a depending action, it may be loofed by the common debtor's giving fecurity to the arrefter for his debt in the event it fhall be found due. Arreftment founded on decrees, or on registered obligations, which in the judgment of law are decrees, cannot be loofed but upon payment or confignation; except, 1. Where the term of payment of the debt is not yet come, or the condition has not yet exifted. 2. Where the arreftment has proceeded on a registered contract, in which the debts or mutual obligations are not liquid. 3. Where the decree is fufpended, or turned into a libel: for, till the fufpenfion be difcuffed, or the pending action concluded, it cannot be known whether any debt be truly due. A loofing takes off the nexus which has been laid on the subject arrefted; fo that the arreftee may thereafter pay fafely to his creditor, and the cautioner is fubftituted in place of the arreftment, for the arrefter's fecurity: yet the arrefter may, while the fubject continues with the arrefter, pursue him in a forthcoming, notwithstanding the loofing.

7. Arrestment is only an inchoated or begun diligence; to perfect it, there must be an action brought by the arrefter against the arreftee, to make the debt or fubject arrested forthcoming. In this action, the common debtor must be called for his intereft, 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 arrefter must be liquidated; for the arrefter can be no further en titled to the subject arrested than to the extent of the debt due to him by the common debtor. Where the fubject arrested is a fum of money, it is, by the decree of forthcoming, directed to be paid to the purfuer towards satisfying his debt; where goods are arrested, the judge ordains them to be exposed to fale, and the price to be delivered to the purfuer. So that, in either cafe, decrees of forthcoming are judicial affignations to the arrefter of the fubject arrested.

8. In all competitions, regard is had to the dates, not of the grounds of debt, but of the dili gences proceeding upon them. In the competition of arreftments, the preference is governed by

their dates, according to the priority even of hours, where it appears with any certainty which is the firft. But, as arreftment is but a begun diligence, therefore, if a prior arrefter shall neglect to infift in an action of forthcoming for such a time as may be reafonably conftrued into a defertion of his begun diligence, he lofes his preference. But, as dereliction of diligence is not eafily prefumed, the diftance of above two years, between the first arreftment and the decree of forthcoming, was found not to make fuch a mora as to entitle the pofterior arrefter to a preference. This rule of preference, according to the dates of the feveral arreftments, 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 fhall have been clofed, or the debt have become payable, before the iffue of the competition.

9. By ftatute 33 Geo. III. cap. 74, § 3, it is enacted, that when a debtor is made bankrupt in terms of the act 1696, as thereby extended, all arreftments which fhall have heen used for attaching any effects of fuch bankrupt, within 60 days prior to the bankruptcy, or within four kalendar months thereafter, fhall be ranked pari passu, as if they had been of the fame date; and that in time coming, letters on precepts of arreftment, bearing to be upon a depending action, may be granted fummarily, upon production of the libelled summons. And it fhall be no objection to the said pari pasu preference, that fuch fummons was not executed, or that the debt was not liquidated at the date of arreftment, providing that thefe and all other neceffary fteps are afterwards taken, without any undue delay. And in cafe any of the arrefters fhall in the meantime obtain a decree of forthcoming or preferenee, and have recovered payment, he thall nevertheless be accountable for the fum recovered to those who are eventually found to have a pari passu preference thereon, after allowance, out of the fund, of the expenfe of making it effectual. And all arreftments used after the period of four months fubfequent to the bankruptcy, for attaching the fame effects, may rank with each other according to the former law and practice; but fhall not compete with those ufed prior to the period aforefaid.

10. In the competition of arreftments with affignations, an affignation by the common debtor, intimated before arreftment, is preferable to the arreftment. If the affignation is granted before arreftment, but not intimated till after it, the arrefter is preferred.

II. POINDING is that diligence affecting move. able fubjects, by which their property is carried directly to the creditor. No poinding can proceed, till a charge be given to the debtor to pay or perform, and the days thereof be expired, except poindings against vaffals for their feu-duties, and poindings against tenants for rent, proceeding upon the landlord's own decree; in which the ancient cuftom of poinding without a previous charge continues. A debtor's goods may be poinded by one creditor, though they have been arrefted before by another; for arrestment being but an imperfect diligence, leaves the right of the fubject ftill in the debtor, and fo cannot hinder any

creditor

creditc: from ufing a more perfect diligence, which has the effect of carrying the property directly to himself.

12. No cattle pertaining to the plough, nor inftrument of tillage, can be poinded 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, whofe goods are to be poinded, is ploughing, though he should have been earlier or later than his neighbours; but fummer fallowing does not fall under this rule.

13. In the execution of poinding, firft, the debtor's goods must be appraised on the ground of the lands where they are laid hold on. Next, the messenger muft, after public intimation by three oyeffes, declare the value of the goods according to the appraisement, and require the debtor to make payment of the debt, including intereft and expenfes. If payment fhall be offered to the creditor, or in his abfence to his lawful attorney; or if, in case of refufal of them, confignation of the debt shall be made in the hands of the judge ordinary, or his clerk, the goods muft be left with the debtor; if not, the meffenger may either leave the goods in the debtor's poffeffion, or remove them to a place of security, after declaring the property of them to belong to the poinder, and leaving a schedule of the poind with the debtor. In the 3d place, the execution of the poind is to be forthwith reported to the judge ordinary, who grants warrant for rouping the effects, expofing the fame at no lefs than the appraiser values.

14. Minifters may poind for their ftipends, upon one apraisement on the ground of the lands, and landlords were always in ufe to poind fo for their rents. Poinding, whether it be confidered as a fentence, or as the execution of a fentence, muft be proceeded in between fun-rifing and fun-fetting; or at least it must be finished before the going off of day-light.

15. Any perfon who stops a poinding via falli, on groundless pretences, is liable, both criminally in the pains of deforcement (fee CHAP. III. Sec. IV. 15.), and civilly, in the value of the goods which might have been poinded by the creditor.

16. By the aforefaid ftatute, 33 Geo. III. cap. 74, § 6, it is declared, that if a perfon isr endered bankrupt, as thereby directed, no poinding of the moveables belonging to fuch a bankrupt, within 40 days before his bankruptcy, or within 4 kalendar months thereafter, fhall give a preference to fuch poinder; but that every other creditor of the bankrupt having liquidated grounds of debt, or decrees for payment, and fummoning fuch poinder before the 4 months are elapfed, fhall be entitled to a proportional fhare of the price of the goods fo poinded effeiring to his debt; deducting always the expenfe of fuch poinding, together with ten per cent. on the faid price, or appraised value, which the poinder fhall retain to account of his debt in preference to the other creditors; the faid debt being thereby fo far diminished in the compétition with them, faving always the landlord's right of hypothec for rents or other hypothec known in law.

SECT. XIX. Of PRESCRIPTION.

1. PRESCRIPTION, which is a method, both of establishing and of extinguishing property, is either pofitive or negative. Pofitive prefcription is generally defined, as the Roman ufucapio, The acquifition of property (it fhould rather be, when applied to our law, the securing it against all further challenge) by the poffeffor's continuing his poffeffion for the time which law hath declared neceffary for that purpose: negative is the lofs or amiffion of a right, by neglecting to follow it forth, or use it, during the whole time limited by law.

2. Pofitive prescription was firft introduced into our law by 1617, c. 12, which enacts, that whoever fhall have poffeffed his lands, annual rents, or other heritages, peaceably, in virtue of infeftments, for 40 years continually after their dates, fhall not thereafter be difquieted in his right by any perfon pretending a better title. Under heritages are comprehended every right that is fundo annexum, and capable of continual poffeffion.

3. The act requires, that the poffeffor produce, as his title of prescription, a charter of the lands preceding the 40 years poffeffion, with the seifin following on it: and where there is no charter extant, feifins, one or more, standing together for 40 years, and proceeding either on retours or precepts of clare conftat. Singular fucceffors must produce, for their title of prescription, not only a feifin, but its warrant, as a charter, difpofition, &c, either in their own perfon, or in that of their author: but the production, by an heir, of feifins, one or more, ftanding together for 40 years, and proceeding on retours or precepts of clare conftat, is fufficient.

4. The negative prefcription of obligations, by the lapfe of 40 years, was introduced into our law long before the pofitive (1469, C. 29,-1474, C. 55.) This prefcription is now amplified by the forefaid act, 1617, which has extended it to all actions competent upon heritable bonds, reverfions, and others whatsoever; unless where the reverfions are either incorporated in the body of the wadfet right, or registered in the register of reverfions: And reverfions fo incorporated, or regiftered, are not only exempted from the negative prefcription, but they are an effectual bar against any perfon from pleading the pofitive.

5. A fhorter negative prescription is introduced by ftatute, in certain rights and debts. Actions of fpuilzie, ejection, and others of that nature, muft be purfued within three years after the commiffion of the fact on which the action is founded. Under the general words, and others of that nature, are comprehended all actions, where the purfuer is admitted to prove his libel by his own oath in litem. 6. Servants fees, houfe rents, men's ordinaries, (i.e. money due for board), and merchants accounts, fall under the triennial prescription (by 1579, c. 83.) There is also a general claufe fubjoined to this ftatute, of other the like debts, which includes alimentary debts, wages due to workmen, and accounts due to writers, agents, or procurators. Thefe debts may, by this act, be proved after the three years, either by the writing or oath of the debtor; fo that they prescribe only as to the

mean

mean of proof by witnesses; but after the three years it behoves the creditor to refer to the debtor's oath, not only the conftitution, but the fubfiftence of the debt. In the prefcription of house rents, fervants fees, and alimony, each term's rent, fee, or alimony, runs a feparate courfe of prefcription; fo that in an action for thefe, the claim will be reftricted to the arrears incurred within the three years immediately before the citation: But, in accounts, prefcription does not begin till the laft article; for a single article cannot be called an account. Actions of removing muft alfo be purfued within three years after the warning. Reductions of erroneous retours prefcribe, if not purfued within 20 years.

7. Minifters ftipends and multures prefcribe in 5 years after they are due; and arrears of rent, 5 years after the tenant's removing from the lands. As the prefcription of mails and duties was intro. duced in favour of poor tenants, that they might not fuffer by neglecting to preserve their discharges, a proprietor of lands fubject to a liferent, who had obtained a leafe of all the liferented lands from the liferenter, is not entitled to plead it, nor a tackfman of one's whole eftate, who had by the lease a power of removing tenants. Bargains concerning moveables, or fums of money which are proveable by witneffes, prefcribe in five years after the bargain. Under these are included fales, locations, and all other confenfual contracts, to the conftitution of which writing is not neceffary. But all the above mentioned debts may, after the five years, be proved, either by the oath or the writing of the debtor; of which above, § 6. A quinquennial prescription is established in arreftments, whether on decrees or depending actions: The first prescribe in 5 years after using the arreftment, and the laft in five years after fentence is pronounced on the depending action.

8. No perfon binding for or with another, either as cautioner or co-principal, in a bond or contract for a fum of money, continues bound after 7 years from the date of the bond, provided he has either a cause of relief in the bond, or a feparate bond of relief, intimated to the creditor, at his receiving the bond. But all diligence used within the feven years against the cautioner fhall ftand good. The ftatute excludes all cautionries for the faithful discharge of offices; thefe not being obligations in a bond or contract for fums of money: and practice has denied the benefit of it to all judicial cautioners, as cautioners in a fufpenfion.-Actions of count and reckoning, competent either to minors against their tutors or curators, or vice versa, prescribe in ten years after the majority or death of the minor.

9. Holograph bonds, miffive letters, and books of account, not attefted by witneffes, prescribe in 20 years, unless the creditor fhall thereafter prove the verity of the fubfcription by the debtor's oath. It is therefore fufficient to fave from the effect of this prescription, that the conftitution of the debt be proved by the party's oath after the 20 years; whereas, in ftipends, merchants accounts, &c. not only the conftitution, but the fubfiftence of the debt, must be proved by writing on the debtor's oath, after the term of prescription. Some lawyers extend this prefcription of holograph wri

tings to all obligations for fums not exceeding L.100 Scots, which are not attefted by witneffes; because, though these are in practice fuftained, yet they ought not to have the fame duration with deeds attefted by witneffes. Though in the short prescriptions of debts, the right of action is for ever loft, if not exercised within the time limited; yet where action was brought on any of those debts, before the prescription was run, it fubfifted, like any other right, for 40 years. As this defeated the purpose of the acts establishing these prescriptions, all proceffes upon warnings, fpuilzies, ejections, or arreftments, or for payment contained in act 1669, c. 9, are by the faid act, joined with 1685, c. 14, declared to prescribe in five years, if not wakened within that time; see CHAP. III. Sect. I. § 26.

10. The duration of bills is limited to fix years by the 12 Geo. III.; rendered perpetual by 23 Geo. III. Thus alfo a receipt for bills granted by a writer to his employer, not infifted upon for 23 years, was found not productive of an action. The prefcriptions of the reftitution of minors, of the benefit of inventory, &c. are explained in their proper places.

11. In the pofitive prescription, as established by the act 1617, the continued poffeffion for 40 years, proceeding upon a title of property not chargeable with falfehood, fecures the poffeffor against all other grounds of challenge, and fo prefumes bona fides, præfumptione juris et de jure. In the long negative prescription, bona fides in the debtor is not required: the creditor's neglecting to infift for fo long a time, is conftrued as an abandoning of his debt, and fo is equivalent to a difcharge. Hence, though the fubfiftence of the debt fhould be referred to the debtor's own oath, after the 40 years, he is not liable.

12. Prescription runs de momento in momentum: the whole time defined by law must be completed, before a right can be either acquired or loft by it; fo that interruption, made on the last day of the 40th year, breaks its courfe. The pofitive prefcription runs against the sovereign himself even as to his annexed property; but it is generally thought he cannot fuffer by the negative; he is fecured againft the negligence of his officers in the management of proceffes, by express statute, 1600, C. 14. The negative as well as the pofitive prefcription runs againft the church, though churchmen have but a temporary intereft in their benefices. But because the right of beneficiaries to their stipends are liable to accidents, through the frequent change of incumbents, 13 years poffeffion does, by a rule of the Roman chancery which we have adopted, found a prefumptive title in the beneficiary: but this is not properly prefcription; for if by titles recovered, perhaps out of the incumbent's own hands, it fhall appear, that he has poffeffed tithes or other fubjects to a greater extent than he ought, his poffeffion will be reftricted accordingly. This right muft not be confounded with that established in favour of churchmen, which is confined to church lands and rents, and conftitutes a proper prefcription upon a poffeffion of 30 years.

13. The claufe in the act 1617, faving minors from prefcription, is extended to the pofitive, as well as to the negative prescription; but the ex

ception

ception of minority is not admitted in the cafe of hofpitals for children, where there is a continual fucceffion of minors, that being a cafus infolitus. Minors are expressly excepted in feveral of the fhort preferiptions, as 1579, c. 18,-1669, c. q'; but where law leaves them in the common cafe, they must be subject to the common rules.

14. Prefcription does not run contra non valentem agere, against one who is barred, by fome legal incapacity, from pursuing; for in fuch cafe, neither negligence nor dereliction can be imputed to him.

course of prefcription, fo that the perfon pre-
'fcribing can avail himself of no part of the for-
mer time, but muft begin a new courfe, com
mencing from the date of the interruption. Mi-
'nority, therefore, is no proper interruption: for it
neither breaks the courfe of prefeription, nor is
it a document or evidence taken by the minor on
his right: it is a perfonal privilege competent to
him, by which the operation of the prefcription
is indeed fufpended during the years of minority,
which are therefore difcounted from it; but it
continues to run after majority, and the years be-
'fore and after the minority may be conjoined to
complete it. The fame doctrine applies to the
'privilege arifing from one's incapacity to st

15. Certain rights are incapable of prefcription: 1. Things that law has exempted from commerce. 2. Res mere facultatis, e. g. a faculty to charge a subject with debts, to revoke, &c. can- 20. Diligence ufed upon a debt, against any not be loft by prescription; for faculties may by one of two or more co-obligants, preferves the their nature be exercifed at any time: hence, a debt itself, and fo interrupts prescription againft proprietor's right of ufing any act of property on all of them; except in the special cafe of cautionhis own grounds, cannot be loft by the greatesters, who are not affected by any diligence used length of time. 3. Exceptions competent to a against the principal debtor. In the fame manperfon for eliding an action, cannot preferibe, un- ner, a right of annual rent, constituted upon two lefs the exception is founded on a right produc feparate tenements, is preferved as to both from tive of an action, e. g. compenfation; fuch right the negative prescription, by diligence used against must be infifted on within the years of prefcrip- either of them. But whether fuch diligence has tion. 4. Obligations of yearly penfions or pay- alfo the effect to hinder the poffeffor of the other ments, though no demand has been made on tenement by fingular titles from the benefit of the them for 40 years, do not fuffer a total prefcrip- pófitive prescription, may be doubted. tion, but still fubfift as to the arrears fallen due within that period; because prescription cannot run against an obligation till it be payable, and each year's penfion or payment is confidered as a S&CT, XX. Of SUCCESSION in HERITABLE separate debt.

16. No right can be loft non utendo by one, unlefs the effect of that prescription be to establish it in another. Hence the rule arifes juri fanguinis nunquam prafcribitur.

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17. Prefeription may be interrupted by any deed, whereby the proprietor or creditor ufes his right or ground of debt. In all interruptions, no- ' tice must be given to the poffeffor of the subject, or the debtor, that the proprietor or creditor intends to fue upon his right. All writings whereby the debtor himself acknowledges the debt, and all proceffes for payment brought, or diligences ufed against him upon his obligation, by horning, inhibition, arreftment, &c. muft be effectual to interrupt prescription.

18. Interruptions, by citation upon libelled fummonfes, where they are not used by a minor, prescribe, if not renewed every seven years: but where the appearance of parties, or any judicial act has followed thereupon, it is no longer a bare citation, but an action which fubfifts for 40 years. It has been found, that the fexennial prefcription of bills is not interrupted by a blank citation, as practifed in the court of admiralty. Citations for interrupting the prescription of real rights must be given by meffengers; and the fummonfes, un which fuch citations proceed, muft pafs the fig net upon the bill, and be registered within 60 days after the execution, in a particular register appointed for that purpose: and where interruption of real rights is made via facti, an inftrument must be taken upon it, and recorded in the faid register; otherwife it can have no effect against fingular fucceffors.

19. Interruption has the effect to cut off the VOL. XIII. PART I.

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III. OF SUCCESSION.. ༄སྙ་༔

RIGHTS...

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I. SINGULAR fucceffors are those who fucceed to a person yet 'alive, in a special subject by fingular titles; but fucceffion, in its proper fenfe, is a method of tranfmitting rights from the dead to the living. Heritable rights defcend by fucceffion to the HEIR properly fo called; moveable rights to the executors, who are sometimes faid to be heirs in moveables. Succeffion is either by special deftination, which defcends to thofe named by the proprietor himfelf; or legal, which devolves upon the perfons whom the law marks out for fucceffors, from a prefumption, that the proprietor would have named them had he made a deftination. The firft is in all cafes preferred to the other, as prefumption muft yield to truth.

2. In the fucceffion of heritage, the heirs at law are otherwife called heirs general, heirs ahatfoever, or heirs of line; and they fucceed by the right of blood, in the following order. First, defcendants; among thefe, fons are preferred to daughters, and the eideft fon to all the younger, Where there are daughters only, they fucceed equally, and are called heirs portioners. Failing immediate defcendants, grand-children fucceed; and in default of them, great-grandchildren; and · fo on in infinitum: preferring, as in the former cafe, males to females, and the eldeft male to the younger.

3. Next after defcendants collaterals fucceed; among whom the brothers german of the deceafed have the first place. But as, in no cafe, the legal fucceflion of heritage is, by the law of Scotland, divided into parts, unlefs where it defcends to females; the immediate younger brother of the deceafed excludes the reft, according to the rule, G

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