LEASES REGISTERED UNDER ACT MINISTERS' STIPEND. The assignation (by way of security) of a liferent right to lands, which, though constituted by infeftment or equivalent registration, is transmissible by simple assignation, without infeftment or registration, is hardly an exception to what I have stated; the subject of that assignation being the right to the lands during the granter's lifetime, with the corresponding rents. The granter thereby puts the assignee in his own full right and place. He can give no other or better or stronger right; and it does not seem enough to take, even from a liferenter, a mere assignation of the rents without the right to the lands during the party's life. Taking the liferent right to the lands, the rents follow as matter of course, with right to renew leases on their expiry, as far as the liferenter had such right, or to enter to possession. But, taking only the rents, there might be a question as to the power to renew leases, even to the extent of the liferenter's right, or to enter to possession. The mere assignation to rents, therefore, is a form of security in no case eligible. Probative tacks or leases, registered under the Leases Act of 1857,1 can be assigned in security, according to the forms in Schedule B, and Schedule C, No. 2, annexed to the Act; the right of the assignee being completed by registration in terms of the Act, sect. 1, which requires assignations to be registered in the register wherein the leases assigned have been registered. Other leases are sometimes assigned in security, but, as to all leases not registered under the above Act, it is settled law that no security can be constituted by mere assignation; and that actual possession on the part of the assignee, if there is no sub-tenant, or intimation when there is a sub-tenant, is indispensable to make the assignee's right good and effectual against third parties. Moreover, in all cases, the assignee, after entering into possession, becomes liable during the subsistence of the security, or during the subsistence of the lease if the assignation be absolute, to pay the rent and fulfil the other stipulations in favour of the landlord.2 This must often render the security over a lease very unmarketable. Where, however, there is a sub-lease, and the principal lease is assignable, a security can be constituted without actual possession of the subjects contained in the lease, and without the aid of the above Act. This is done by assignation of the lease and intimation to the sub-tenant and landlord. In such cases, the lands are in possession of the sub-tenant, and what the principal tenant has to give or assign is the right to recover from him the amount of the subrent. Intimation of the transfer of that right, therefore, to all concerned, places the assignee in the full right of the cedent. The liferent right to lands, and the right to a lease, being heritable, and not moveable property, the forms of assignation authorized by the Act of 1862 are not available, or at least have no statutory effect in the transmission of such rights. Ministers' stipends can be assigned in security of debt, but in fram- 120 & 21 Vict. c. 26. 2 ing the clause of assignation care should be taken to include the stipend payable not only under the existing decreet of modification and locality, but also under any new or subsequent decreet. There are various points to be kept in view and provided for in connexion with all assignations in security: (1.). In every case (except that of the assignation under the Leases Act of 1857, for which there is a statutory form) the assignation in security will contain an obligation on the assignee to account to the cedent for his intromissions, and to pay over to the cedent any sum or balance that may be due to him, upon the accounting, after deducting the debt in security of which the assignation is granted, and the expenses of making the assignation effectual, such expenses to be charged as between agent and client. (2.) The deeds will likewise contain an obligation on the assignee, after receiving payment of the debt and the expenses, not only to discharge the debt, but also to retrocess the cedent in the subject assigned, so far as outstanding at the time. (3.) Likewise, a declaration that third parties shall be exonered and secured by the assignee's receipts or other writs. But where the subject assigned consists of a legacy, or reversionary interest under a trust, and the amount or value thereof is visibly in excess of the sums secured, it would not in general be expedient for the trustees to allow full effect to such a power. They ought, if possible, to get the legatee or beneficiary to concur with the creditor in granting the discharge, for their respective interests; and, if a voluntary discharge cannot be obtained, I apprehend that the usual course in practice is to call all parties interested into Court in a multiplepoinding, and obtain the Court's exoneration. (4.) And, for the assignee's own protection, there ought to be a declaration that, in accounting, he shall be liable for his own individual and personal intromissions only, and nowise for omissions, nor to do diligence otherwise than as he shall think fit. How far such clause will protect the assignee will be a question of circumstances. Notwithstanding a very distinct clause of non-liability for omissions, he may make himself liable, especially in a question with subsequent assignees or other creditors. He ought, therefore, to proceed with all due caution and certainty, not less than a prudent man would exercise in the management of his own affairs. (5.) The deeds will of course contain a clause as to delivery, or exhibition of writs, with clause of warrandice from fact and deed, the amount of the debt being the measure of the warrandice in these cases. The right of the assignee requires intimation for its completion, and, when the rents of lands or ministers' stipends are assigned, intimation of the assignation to the tenants or heritors existing at the date of the intimation ought not to be relied on for completing the assignee's right to rents or stipend falling due by succeeding tenants or heritors. On a change of occupancy or of ownership, therefore, intimation of the assignation ought to be given to the new tenants or owners. This may be less necessary when the change arises by succession than when the THE TRANSLA TION. RETROCESSION. new tenant or owner has no connexion with the old; but, even in the case of change by succession, it will in general be prudent to give new intimation. The transfer of a debt, when granted not by the original creditor, but by one who has acquired right in virtue of an assignation from that creditor, is technically called a 'translation.' Its object is precisely similar to that of the assignation, viz., to place a new creditor in the full right of the debt; and the forms authorized by the Transmission of Moveable Property Act of 1862 are expressly available for translations equally with original assignations. As we have already seen, assignations were anciently in the form of appointments of procurators, or mandatories, for the special purpose of uplifting the debt. The translation, however, appears always to have been in the form of a simple and direct transfer. The procurator of the original creditor has always been allowed to grant a transfer in that form,-in other words, to do more than in early times his own constituent could; and, the debt being a 'chose in action' as much in the one as the other case, it is difficult to account on principle for the difference which has existed in the form of the deed of conveyance. The translation heretofore in use has been in the same form as the first alternative form of assignation, which I have already given, with this variation, of course, that, after describing the bond in which the sums assigned are contained, the translation has said, 'to which bond, and sums thereby due, I acquired right, by virtue of an assignation dated , granted by the said ' in my favour;' and the clauses of assignation and delivery of writs have comprehended the deed of assignation as well as the bond. The warrandice has been the same as in the assignation. After a debt has been the subject of an assignation and translation, future transfers are usually called conveyances or assignations; but the import and effect of all these writings are the same. It is therefore desirable that they should all pass under the same name, and probably the simple and direct form authorized by the Act of 1862 will now be adopted generally, and the term 'assignation' will be given to them all. It sometimes happens that a debt or subject, after being assigned or transferred, is reconveyed to the former holder. This occurs most frequently where debts or other subjects have been made over in security. The writ by which they are reconveyed is technically termed a 'retrocession,' or 'giving back.' Lord Stair says it was at one time called a reposition,' or 'replacing.' The Act of 1862 expressly applies to retrocessions; and where such a writ is granted, independently of any special relation between the parties, such, for example, as that of debtor and creditor, it may be similar in structure to the translation; but, where the bond, or other subject to be given back, has been held in security, and the retrocession arises in consequence of the payment of the debt, or fulfilment of the obligation secured, the retrocession ought to narrate the deed constituting the security, and the payment of the debt or fulfilment of the obligation secured, whereby it has become necessary that the bond or other subject assigned should be reconveyed, and therefore the assignee will reconvey to the party, his heirs, etc., either in the terms authorized by the Act of 1862, or, agreeably to the older forms, the sum of money (or as the case may be); with the bond (or as the case may be); and whether the previous assignation has been absolute, or only in security, the granter of the retrocession, if the older form be adopted, will repone, restore, and retrocess his author in and to his right and place of the premises, with warrandice from fact and deed only. same. The translation and retrocession require intimation equally with the first assignation, and the forms of procedure in each case will be the There is an old case,1 in which an assignation, unintimated, was found to be evacuated by a simple retrocession, likewise unintimated; but, even if the assignation has not been intimated, it is clearly expedient to intimate the retrocession. 1 Craig, 20th Nov. 1674, M. 838. TITLE III. EXTINCTION OF OBLIGATIONS. FULFILMENT. COMPENSATION. CONFUSION. NOVATION. CHAPTER I. THE next step in this course is to explain how personal obligations are extinguished and discharged. 1. It may be said, generally, that every obligation is extinguished upon its being fulfilled. In cases of fulfilment, what is wanted is evidence of the fact. Under this head may be classed discharges under the Bankrupt Act, on composition or otherwise, or extrajudicially on composition; for although in these cases, in general, the debt or obligation is only in part paid or fulfilled, the utmost payment or fulfilment is implied which the debtor's estate will afford. 2. Debts may likewise be extinguished by compensation; that is, when the creditor, in right of a debt, becomes debtor to his debtor, or vice versa. In such circumstances, the law holds either party entitled to plead that the debts mutually due by them have become extinguished by compensation; for no man ought to be liable in payment of a sum to another person, who is liable in payment of an equal sum to him. This mode of extinguishing an obligation is substantially the same as payment of the debt; but compensation requires to be pleaded. It does not take effect ipso jure. 3. Debts are extinguished likewise confusione, or by concursus debiti et crediti. When the debtor, by succession or otherwise, becomes creditor in the debt, or the creditor becomes debtor, and liable in payment of the debt, he cannot at the same time be both debtor and creditor to himself. 4. Debts may be discharged by novatio debiti; as when the creditor accepts a new obligation in lieu of the old; a bond, for example, in lieu of a bill. Along with this, Erskine1 classes extinction by delegation; that is, when a new debtor is substituted for the old. These, however, are cases of the extinction of the original obligation, or original debtor's obligation, rather than of the debt itself. 1 Erskine, iii. 4. 22. |