'one into whose hands the writing may come, and who may thus acquire a right of action better than the right of him under whom he ' derives title.' These are just the grounds on which the Scotch Act of 1696 against blank writs was passed.

Until the passing of the Conveyancing Acts of 1845 and 1847, almost all the deeds thereby affected had certain blanks in them, which it had become usual in practice not to fill up. These were, ex facie, intended in dispositions for the insertion of the names of procurators for resignation, and bailies for giving sasine of the lands disponed, and of procurators for registration in the books of a Court of Justice. But, in

all such deeds according to the new forms, and in deeds in general in virtue of the Titles Act of 1860, the occasion for such blanks is now done away; and there ought now to be no blanks in deeds at the time of their subscription. An attempt was lately made to show that the Act of 1860 did not authorise the short form of registration clause in a lease of minerals; but it was not successful.1

Erskine speaks of bonds being sustained, though it appears, from ocular inspection, that the creditor's name was not inserted by the writer of the deed; but bonds have no privilege in that particular. On the contrary, the creditor's name is one of the essentials of every bond; and, if the name of the writer of that essential part of the bond is not mentioned, I see no reason to doubt that the bond would be held improbative.b

1 Dimpsey v. M'Farlane's Trustees, 17 July 1863, 1 Macph. 1126.
2 Erskine, iii. 2. 6.

a See Connal & Co. v. Loder and others, 17 July 1868, 6 Macph. 1095.

b As explained on page 33, note a, the mention of the writer of a deed is not now a statutory solemnity.

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 connection with social or commercial arrangements, with parliamentary proceedings, or from other causesinvolve 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

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 every-day 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 connection with the writing at one time in use here, called a 'ticket,' the TICKET. 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 :- CLAUSES 1. The narrative.

2. The obligation to pay.

3. The clause of registration. And

4. The testing-clause.

(the parti

OF BOND.

The narrative runs thus-where the bond is granted in considera- NARRATIVE. tion of the instant advance of the money lent :-'I, A., grant me to have instantly borrowed and received from B. the sum of 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,'

OBLIGATION
TO PAY.

day of

notwith

And, in the case of a

etc., the words used will be,' grant me, on the
standing the date hereof, to have borrowed,' etc.
debt not arising from money advanced by way of loan, but consisting
of the balance of an account or the like, the words will be, 'grant me
'to be justly indebted and owing to B. the sum of £ being the
'balance due to him on an account-current between us, commencing on
'the
. When there is an actual
advance, the true date of it ought in all cases to be accurately stated in
words; and if there is any further debt due by the same debtor to the
same creditor, or if there are unsettled transactions between them, the
bond ought to be so expressed as to show clearly whether it relates to a
new loan, or to money formerly due.

and ending 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.1 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: 'which sum I bind myself and my heirs, executors, and representatives '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.'

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.2 The case, however, is very special. In connection 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 Hamilton's Executors v. Hope, 26 March 1853, 15 D. 594.

also the case of Gammell, where an attempt was made by an heir of entail to charge his entailed estate, under the Rutherfurd (Entail Amendment) 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 President M'Neill remarking: 'I have little difficulty C 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

GRANTER'S

HEIRS.

The granter of the bond binds also (along with himself) his heirs, BOND AFFECTS 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 connection 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.

OF HEIRS.

It is proper that every personal bond should relieve the creditor from DISCUSSION 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 decree, 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

1 Gammell, 16 July 1856, 18 D. 1297.

2 Lord Justice-Clerk v. Hamilton, 21 Jan. 1708, M. 5911.

3 Stair, iii. 5. 17, and iv. 22. 22.

4 Stair, iii. 5. 21; Erskine, iii. 8. 53; Edgar v. Craigmillar's Heirs, 22 March 1627, M. 3576.