BRANCH II. DEEDS RELATING TO PERSONAL RIGHTS. TITLE I.--THE PERSONAL BOND. CHAPTER I. WE are now about to enter upon a leading branch of the subject of the constitution, transmission, and extinction of moveable or personal rights; one of the principal divisions of this course. It is already very comprehensive, including writings of great diversity of structure, and open indefinitely to further extension and variety, and it must be regarded as hardly less important than the division relative to heritable rights. It would be impossible, under any circumstances, to enter in the way of exposition into the particulars of all the deeds connected with either branch. Nor would time occupied in so doing be well spent. Exemplification might be useful, as far as it went, but acquaintance with existing forms is not enough for a Conveyancer. Every year is adding to the variety of writings to be dealt with. And the exigencies of professional life arising in connexion with social or commercial arrangements, with parliamentary proceedings, or from other causes-involve the necessity for the prompt preparation of deeds and clauses, for many of which there can be no styles. Reliance on the knowledge of the greatest number of existing forms will never make any one equal to these occasions. What is wanted (in addition to good general preparation) is knowledge of essential principles and ordinary forms, together with practice; in other words, the knowledge of principles and of forms as bearing on and illustrating each other. With these, and full acquaintance with what in each case is wanted, there will be the faculty of framing the clauses adapted to the particular circumstances of the case; the faculty of expressing, in appropriate language, obligation, condition, and qualification, or whatever the case may require. This often has to be done under considerable pressure; but the man of business must have the requisite faculty in himself, without, as matter of necessity, recurring to books. But, whilst it is proper to warn you against too exclusive reliance on the knowledge of styles, it would be a grave error to lead you either to THE PERSONAL TICKET. CLAUSES. NARRATIVE. undervalue such knowledge, or to think there is great difficulty, on the part of any one of good professional and general education, in framing deeds or clauses of unusual occurrence. Obligations in most cases require and are made effectual by the same leading words; agreements, conditions, etc., are, of course, very various in their objects, but, as far as technicalities are concerned, they are always much the same; and, as to the proper subject-matter, the use of plain and distinct language is all that is wanted. I will now proceed to the exposition of the styles and technicalities of the most important of the ordinary deeds connected with moveable or personal rights, which, besides meeting the bulk of everyday practice, are the main groundwork of what is only occasional and unusual. And I commence with the personal bond. The personal bond, as used in Scotland, has obviously a close connexion with the writing at one time in use here, called a ticket,' the form of which was as follows:- I, A. B., grant me to be justly addebted 'to C. D. in the sum of £ Scots, which I bind and oblige me, my 'heirs, successors, and executors to pay to the said C. D., his heirs or 'assignees, or any having his order, and that against the next, under the penalty of £ 'witness whereof,' etc. day of Scots in case of failure.-In One peculiarity of this writing, you will observe, is, that it is payable to the creditor named, or any one having his order. Blank indorsation of a ticket, as in the case of a bill, implied an order by the creditor or holder to pay to the bearer; and the ticket, in virtue of its own expressed terms, on being blank indorsed by the first holder, passed from hand to hand by mere delivery, and without any deed of transfer. Writs, in similar form, were common in England also, where they were called 'bills,' and the bonds of the York Buildings Company appear to have been so far in the same form, that they were payable to one having right by mere indorsement. The transfer of tickets, however, by mere delivery, was struck at by the Act 1696, cap. 25, directed against blank bonds, assignations, or other deeds, and the use of them was consequently given up in Scotland. The personal bond, as now in use, consists of the following clauses :-1. The narrative. 2. The obligation to pay. 3. The clause of registration. And 4. The testing-clause. The narrative runs thus-where the bond is granted in consideration of the instant advance of the money lent :-'I, A., grant me to have instantly borrowed and received from B. the sum of ' (the parti cular sum being always stated in words). In this clause, care must be taken to name and design the parties correctly, and so as to distinguish them from all others. If the loan has been advanced prior to the granting of the bond, in place of saying 'grant me to have instantly borrowed,' day of not etc, the words used will be, 'grant me, on the In cases of ordinary loan, after the words stating the granter to have borrowed the sum in question, there frequently occur the following words of which sum I hereby acknowledge the receipt, renouncing all exceptions to the contrary,' but these words are not indispensable; the acknowledgment of receipt is expressly embodied in the first clause. The renunciation of exceptions to the contrary is taken from the Civil Law, and has reference to a time when the borrower of money, by denying the receipt thereof, could throw on the lender the burden of proving the payment or advance. The same exception can still be alleged by the granter of a bond against the claim on the bond; but after the bond is delivered to the lender, it lies on the borrower to prove the negative, not on the lender to prove the affirmative of the advance. The obligation or bond next follows in such words as these: OBLIGATION TO 'which sum I bind myself and my heirs, executors, and representatives PAY. 'whomsoever, without the necessity of discussing them in their order, 'to repay to the said B. and his heirs, executors, or assignees, at and 'within' (some place specified), at the term of' (usually the first term of Whitsunday or Martinmas which shall happen more than three months after the date of bond), with a fifth part more of penalty in case of failure, and the interest of the said principal sum at the rate ' of per cent. per annum, from and after the date of delivery hereof to 'the said term of payment, and daily, monthly, yearly, and continually thereafter during the not payment.' 2 The granter here binds himself and his heirs, executors, and representatives whomsoever, without the necessity of discussing them in their order. There must be express words of obligation. The importance of this is obvious; without them the deed is not a bond or obligation. This will be illustrated by the case of Hamiltons. The case, however, is very special. In connexion with the present subject, I refer only to what is said by the Judges at advising that case, regarding the difference between a mere recital that a debt is due and a conveyance in security, and an acknowledgment of debt and bond for payment. I may notice 1 Ross, i. 53. 2 Hamiltons, 25th March 1853, 15 D. 594. DISCUSSION. also the case of Gammell,1 where an attempt was made by an heir of entail to charge his entailed estate, under the Rutherfurd (Entail Amend ment) Act, with an obligation which did not bind himself or his heirs. personally, but only the entailed estate, for payment of the sum to be created a burden thereon. The Court refused to approve of the deed, the Lord Justice-General M'Neill remarking: I have little difficulty ' about this matter. We are sitting here, not to make experiments, but 'to administer the Statute; and I see nothing about such a thing as this in the Statute.' His Lordship, you will observe, would not call the deed a bond.' In framing a bond, a personal obligation ought to be expressly imposed. Where the granter of a bond bound his heirs and executors, without expressly binding himself, it was objected that the bond was null, as all obligations behoved to begin with the granter; but the bond was sustained.2 The granter of the bond binds also (along with himself) his heirs, executors, and representatives whomsoever; and, should he die before the bond is discharged, the debt will affect his whole heirs and successors and estate, except any estate which he holds in virtue of a valid and effectual entail, and the heirs of entail therein. The result in these particulars would be the same though he should only bind himself; but the usual style of the clause should be followed. This is specially necessary in connexion with the renunciation by the granter of the benefit of discussion, competent by law to his heirs; that is, the right of an heir in heritable estate, not primarily liable in payment of a particular debt due by his ancestor, to require that the creditor shall discuss the heir or heirs in heritable estate legally liable before him in payment. of such debt, prior to calling on him for payment. It is proper that every personal bond should relieve the creditor from the necessity of discussing the debtor's heirs in the order of their legal liability. No doubt, whether the benefit of discussion is renounced or not, the heirs in the debtor's whole estate (so far as it was liable in his person to be affected by his debts) are liable ultimately, that is to say, they are all liable, rather than that the debt shall remain unpaid to the creditor. But, when the benefit of discussion is not renounced, the heirs in the debtor's heritable estate can be sued for payment only in a particular order; and each heir, respectively, must be first discussed in his own order before the suit is followed out against the heir in the next class. The discussion requires the execution of legal diligence against the person of the heirs in the heritable estate by decreet, charge of horning and registration; against their personal estate by arrestment and forthcoming, or poinding, and sale; and against their heritable estate by adjudication; and apparently the heritable estate ought to be brought to sale. But the rules as to liability and discussion are open to much 1 Gammell, 16th July 1856, 18 D. 1297. 2 Lord Grange, 21st Jan. 1708, M. 5911. 3 5 3 Stair, iii. 5. 17, and iv. 22. 22. 4 Stair, iii. 5. 21; Erskine, iii. 8. 53; Edgar, 22d March 1627, M. 3576. Bankton, i. 23. 30; Torphichen, 29th Jan. 1679, M. 3577. See also Bell's Law Dictionary, voce Discussion.' modification; and, when the benefit of discussion is not renounced, the creditor may have questions of much nicety to consider in the proceedings for recovery of his debt: The renunciation of the benefit of discussion, however, when granted, merely imposes on the debtor's heirs, or such of them as shall be sued for payment, in place of upon the creditor, the trouble and responsibility of finding out the proper debtor, and of bringing the burden home to him. When a party lends money, he looks to the borrower, and his estate as it stands as a whole; the lender has no thought of subjecting himself to the burden and charge of discussing first this, and then that, class of heirs, and their respective portions of the estate, until he has, perhaps by piecemeal, recovered his whole debt. It is very right that, when the succession to lands or other estate devolves upon different heirs, the debts of the common ancestor should be formally undertaken by the heirs respectively, according to their several liabilities, and that new arrangements should be made with the creditors, whereby the heirs primarily liable (as in questions inter hæredes) shall become the sole debtors, and the others shall be relieved and discharged. The Court indeed will, under special circumstances, hold the heirs not primarily liable to have been discharged without any express arrangement to that effect having been made.1 But the discharge of those not primarily liable, if it is to be granted at all, should be matter of special arrangement in each case. I do not see any principle on which the creditor should allow the mere decease of the original debtor to alter his own position as regards his claim on such debtor's estate, more especially as the creditor, much more than the heirs, may have difficulty in ascertaining in what order the heirs are liable; and the doing of diligence, either personal or real, is always an unpleasant and often very critical proceeding. LIABILITY It may here be convenient to explain the legal order of the liability ORDER OF among the debtor's heirs in heritable estate, inter se; and likewise to the AMONG HEIRS. creditor when the benefit of discussion is not renounced. (1.) The liability falls in the first place on the 'heir-of-line,' or as he HEIR OF LINE. is indiscriminately called the 'heir-at-law,' 'heir whatsoever,' or 'heirgeneral.' Such heir succeeds by law (as contradistinguished from special destination) to the universitas of the debtor's heritage, that is, the heritable estate to which the debtor succeeded as heir-at-law of some predecessor, and which he did not purchase or acquire otherwise than by succession as such heir. The heir-at-law succeeds also to all leasehold rights held by the predecessor, and howsoever acquired; but he has no right to any heritage or leases which are subject to special destination in favour of other parties. Such heir is liable by law, in the first place, for all debts of which the payment is not the subject of special regulation; and for such debts he is liable universally, that is, to the extent of his whole estate, heritable and moveable.2 1 Threipland, 23d Feb. 1855, 17 D. 487. See also Wyllie, 13th Dec. 1853, 16 D. 180. 2 Stair, iii. 5. 17; Erskine, iii. 8. 50; Creditors of Fairly, 12th Feb. 1630, M. 3559; Brown, 19th Nov. 1782, M. 5228. |