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. 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 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 sub-rent. 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 authorised 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- MINISTERS' ing the clause of assignation care should be taken to include the stipend STIPEND. payable not only under the existing decree of modification and locality, but also under any new or subsequent decree. BOUND TO There are various points to be kept in view and provided for in ASSIGNEE connection with all assignations in security: (1.) In every case (except ACCOUNT, ETC, 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, 1 Ramsay v. Commercial Bank, 20 Jan. 1842, 4 D. 405. TRANSLATION. 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 new tenant or owner has no connection 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 authorised 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, The ' in my favour;' and the clauses of assignation and delivery of writs have comprehended the deed of assignation as well as the bond. 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 authorised 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 RETROCESSION. 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 Stair1 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 so conveyed, and therefore the assignee will reconvey to the party, his heirs, etc., either in the terms authorised 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. 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, in which an assignation, unintimated, was found to be evacuated by a simple retrocession, likewise unintimated ;2 but, even if the assignation has not been intimated, it is clearly expedient to intimate the retrocession. same. 1 Stair, iii. 1. 3. 2 Craig v. Edgar, 20 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 Erskine classes extinction by delegation ;1 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. 5. Debts may be extinguished by simple consent; as when the CONSENT. creditor voluntarily makes a present of the debt, or when, as frequently happens in relation to provisions to wives and children, a new provision is accepted in satisfaction and instead of an old one. 6. Debts are extinguished by prescription, in consequence of the PRESCRIPTION. creditor failing to make any demand upon the debtor during the full space of forty years after the debt has become due and exigible. This authorises the presumption of payment or fulfilment. Under this head may be noticed the discharge arising by taciturnity; always, of course, a case of circumstances. These circumstances must be such as to found the plea of presumed payment, satisfaction or abandonment; but it is not necessary that the full prescriptive period shall have elapsed, in order to let in this plea. CAUTIONERS. 7. We have already seen that the liability of cautioners, in certain LIBERATION OF cases, is limited by special Act of Parliament, so as to cease at the end of seven years from the date of their obligation; and there are various acts or omissions on the part of the creditor in cautionary obligations, calculated to affect the cautioner's position, or his right of recourse against the principal debtor, or against co-cautioners, which, if done independently of the cautioner himself, will, ipso facto or by special Statute, operate his liberation and discharge. VOUCHER OF DEBT. It is proper in every case where an obligation is extinguished, to DELIVERY OF obtain a probative written discharge. The discharge speaks for itself, and precludes questions which might arise and give trouble after those acquainted with the fact are dead or out of the way. The voucher of debt should also be delivered up, if it has not been registered. The maxim of the Roman Law was, 'Chirographum apud debitorem repertum presumitur solutum,' and Mr. Ross mentions in his Lectures that the method of the Church notaries was to cut or cancel the deed after payment of the debt; indeed that some notaries inserted in bonds written by them a promise by the debtor, Non probare solutionem aut liberationem hujusmodi debiti, nisi per præsentes literas incisas vel cancellatas. But nothing is so conclusive as a distinct written discharge-Literæ scriptæ manent. DISCHARGE. Where the debt to be discharged is constituted by a bond not FORM OF recorded, the simplest and best form in which to take the discharge is to have it written on the back of the bond; in which case it will consist of the following clauses, viz. :-(1.) The narrative-'I, A., within ' designed' (or, as the case may be) 'grant me to have instantly' (or, as the case may be) received from the within designed B. the sum of £ 'contained in the within bond, with £, being the interest due thereon, 'from the term of last, to the date hereof (all prior interest due 'to me having been formerly paid and discharged), amounting together, 'the said sums now paid to me, to £ . Then will follow (2.) the clause of discharge, in these words: And therefore I hereby exoner, VOL. I. Y |