received discussion in Mackilligin v. Mackilligin, 23d November 1855, and APPENDIX. he opinions of the Court were in favour of the validity of the trust-deed, and of the competency of the new trustees making up a title directly under that 18 D. 83. Heed. "The requirement of the law having been satisfied by the truster 'inserting in the original instrument a good dispositive clause, subject to an unqualified power of altering the same, and there being also a good nomination of trustees at the time of the completion of the settlement by its 6 quasi delivery on the death of the granter, the Lord Ordinary does not think that the validity of the instrument at the latter date would be affected 'by the circumstance that, during the intermediate period, and while the 'trust-settlement was only in cursu of being completed, one set of parties 'had been substituted for another as trust-disponees. He knows of no anthority or principle for holding that the settlement would be nullified by such a proceeding having taken place at a time when no right either in trust or 'otherwise had been vested in the trustees or donees originally named, and 'when the dispositive act had not yet been completed by delivery of the 'instrument. The codicil, being as much a part of the general settlement as if it had been added to the original instrument itself before it was subscribed, 'must be read along with, and as part of it. And, as in the settlement, when its parts are thus read together, there was, at the date of its quasi delivery 'by the death of the granter, a good dispositive clause with a good nomination of disponees, the defender's objection appears to be groundless on principle, and unsupported by authority;" per Lord CURRIEHILL, Ordinary. The Lord Justice-Clerk HOPE observed :-" For some years before the death of 'the late Mr. Jamieson, I had occasion to consider a variety of cases in consultation with him; and we both held, that, under such a deed as we have here, and similar clauses in latter codicils, the trustees subsequently nominated had an undoubted right, as much as if the original nomination in the trust-deed had remained unaltered, to complete their title at once by infeftment on the trust-deed, and that such infeftment was regular, apt, and valid, in point of strict conveyancing; and that the changes and alterations in the nomination of trustees had no effect on the conveyance in trust, whoever might be named." ... "The truster by an after-codicil alters the trustees, makes a new set, or adds or substitutes, as he thinks proper. Then, what is the effect of this, the trust-deed being declared to remain valid in so far as not altered? Why, that these parties are made disponees, and their names are substituted for, or added to, the original list. What words he employs are of no moment, for his power under this reservation, and equally without the reservation, is absolute over an alterable mortis causâ settlement. Whether he says, I nominate so and so to be trustees or I direct the names of A., B., and C., to stand in the dispositive clause of my trust-deed, as if I had from the first therein inserted them—or, I now give, grant, and dispone to A., B., and C., instead of to D., E., and F., as the future disponees under my trust-deed-or in whatever form-the result is the same, and either form is equally good. There is in the original deed a conveyance to trustees good and effectual, and without any midimpediment. He puts into that conveyance, by virtue of his reserved, or inherent, power over his own deed, new trustees or disponees. The term
"trustees is the same as disponees in such a case, for the nomination of trus"tees under a trust-disposition, by the force of the nomination of them as trustees, makes them trust-disponees. Trustees in such codicils mean trust"disponees; and as there is a disposition to trust-disponees originally, that "remains operative in favour of all who may be named, although the whole "named in the original deed have been recalled, and displaced out of the "trust-conveyance as it originally stood. Hence, the conveyance is at once one to the new trustees. That the original clause of conveyance does not add, or to such other persons as I may name,' is of no moment, for the power of alteration, whether under reservation or at common law, imports
a power so to alter the mere nomination of disponees, the conveyance to "trustees remaining effectual to all who are named."
ABERDEEN ACT, see Entail.
Acceptance of bills, see Bills.
Acceptance of deed, necessary to complete
its effect, 175; different modes in which
acceptance may be established, ib.; writ-
ten or verbal declaration sufficient, ib.;
taking benefit under, or recording deed suf-
ficient, ib.
Acceptilation, see Discharge.
Accession, deed of, see Trust-disposition for
payment of creditors.
Accessories, external, pass as part and perti-
nent, 528.
Accounts open, transference of, 256.
Accretion, doctrine of, 630; in case of an-
cestor dying uninfeft there is no accretion,
633.
Act of grace, 1696, c. 32, creditor to provide
debtor with aliment in prison, 294; libera-
tion ensues if he neglects to do so for ten
days, ib.; Crown must aliment debtor im-
prisoned for taxes, ib.
Acts of Parliament, see Statutes.
Acts of Sederunt:-23d November 1613,
280, 281; 6th June 1661, 515; 19th Feb-
ruary 1680, 832; 31st March 1685, 744;
2d November 1695, 398; 11th February
1708, 596, 794; 23d November 1711, 741;
13th February 1730, 45; 10th August
1754, 746; 17th January 1756, 563, 740;
14th December 1756, 824; 14th December
1805, 303; 11th July 1808, 789; 24th
December 1838, 248, 283, 310.
Ad factum præstandum-obligations, not di-
visible, 207; cautioner cannot be applied
to until principal discussed, 210; statu-
tory limitations does not apply to such ob-
ligations, 218.
Ad fundandam jurisdictionem, see Arrest-
Adjudication in implement-its purpose,
751; where against granter of an obliga-
tion to convey, 752; grounds of action
must be stated, ib.; fatal effect of error in
reciting date, ib.; conclusions of sum-
mons, ib.; decree is warrant for charter of
adjudication, ib.; decree may contain war-
rant of infeftment, ib.; where granter of
minute was not infeft, sasine may proceed
on title granted by his author, ib; is pro-
duction of defender's title necessary? 753.
where granter of obligation is dead, pro-
cedure against his heir, 753; procedure
before Lands Transference Act, ib.; let-
ters of general charge, ib.; summons of
constitution, ib.; decree of constitution, ib.;
special charge, ib.; general special charge,
754; summons of adjudication in imple-
ment, ib.; procedure where heir appeared
and renounced, ib.; decree of constitution
cognitionis causa, ib.; adjudication contra
hæreditatem jacentem, ib.
procedure against heir unentered, upon
his own obligation, 754.
- procedure since Lands Transference
Act, 754; letters of general, special, and
general special charge abolished, 754;
procedure under new forms, 755; summons
of adjudication may be combined with sum-
mons of constitution, when heir is expected
to renounce, ib.; separate summons of ad-
judication necessary where heir does not
renounce, 755.
- abbreviate of, 755; decree, when valid
warrant for infeftment? ib.; there can be
no legal reversion, 756; party first obtain-
ing decree has preference, ib.; preference
given to second adjudication on which su-
perior was first charged, ib.; superior can-
not defeat priority of another party, ib.
Adjudication on trust-bond-effect of trust-
bond and adjudication as a tentative title,
769; carries only such right as the heir
is entitled to, 770; its use, ib.; truster can
effectually transact, ib.; heir liable for im-
mediate ancestor's debts, if ancestor three
years in possession, ib.; trust-disposition
and adjudication incompetent when title of
proprietor is ex facie good, ib.; heir must
prove his propinquity when it is disputed,
Adjudication for debt, 738, 832; substituted
for apprising, 833; special adjudication,
ib.; power of redemption within five years,
ib.; general adjudication, ib.; special, prac-
tically abolished, ib.; form of summons,
ib.; decree may contain warrant to infeft,
ib.; registration of abbreviate, 834; pari
passu preference of adjudications within
year and day, 793, 834; what diligence is
necessary to make adjudication effectual,
793; adjudger's right redeemable during
legal, 834; declarator of expiry of the legal,
ib.; must be followed up without delay,
835; adjudger need not produce debtor's
title, ib.; adjudger must have regard to
state of title, ib.; grounds and warrants
of, 836.
Adjudication in security, 835; has no legal, ib.
Adjudications, register of, its purpose, 162.
Administration, husband's right of-differ-
ence between it and jus mariti, 36; may be
discharged, 37; and excluded, 437; how
it may be excluded, 438; and by whom,
ib.; what is sufficient exclusion, ib.; move-
able property, from which it is excluded,
must be kept in a distinct form, and inven-
toried, ib.; husband's consent to leases
of wife's heritage necessary, 37; if wife a
minor she may reduce on minority, and
lesion, deed granted with consent of her
husband, 38.
Administration, English letters of-not ne-
cessary to have authentication of, 143.
Agent and client-agent's responsibility, 39;
gifts from client to agent, 52.
Agreements, list of-exempt from stamp-
duty, 87; duty payable on other agree-
ments, 88; enactments as to stamping,
agreements and charter-parties, 93.
Agreement, verbal, for sale of land-validat-
ed rei interventu, 181.
Alienation of Feu, see Feu.
Aliens, formerly could not take heritage by
succession, 46; provisions of Act 7 & 8
Vict. c. 66, ib.; former Statutes affecting
rights of aliens, ib.
Aliment to prisoners, see Act of Grace.
Alimentary funds, cannot be assigned ex-
cept for alimentary debts, 253; are not
arrestable, 312.
Allodial tenure, merged in the feudal sys-
tem, 492; examples of, in Scotland, (1.)
Crown property, (2.) Church property, (3.)
udal, 499.
Ambiguity, patent and latent, in instru-
ments, distinction of, 552.
Annuity-an annuity is heritable, 206; pay-
able de die in diem, under apportionment
Act, ib.; arrestment of annuities, 312.
Apportionment Act, 4 & 5 Will. IV. c. 22,
held to apply to Scotland, 206; makes
annuities payable de die in diem, ib.; ap-
plies to an heir of entail, 705.
Apprehension of debtor without imprison-
ment sufficient to make notour bankrupt,
293; not essential for messenger to touch
debtor with his wand of peace for such im-
prisonment, ib.
Apprentice, see Indenture.
Approbate and Reprobate, doctrine of, 475,
666.
Arbiters, see Submission.
Arrestment, difference between this and
poinding, 304; its nature and effect, ib.;
bona fide payment, where arrestee was ig-
norant of arrestment sustained, 310.
in whose hands to be made, competent in
the hands of a seller of goods not delivered
at his own instance, ib.; incompetent to
arrest in the hands of the debtor himself,
308; arrestee must be indebted to his
debtor, ib.; creditor of a company may
arrest in the hands of a partner, debtor to
the company, ib; arrestee must be directly
indebted to the debtor, 308; may be used
to attach funds owing to representatives
of debtor, ib.; provisions of Court of Ex-
chequer Act as to diligence against repre-
sentatives, 309; arrestment is in hands of
guardian where party cannot act for him-
self, ib.; sustained when used in the hands
of a minor without service on curators, ib.;
arrestee must be in possession of subject
arrested, 310; if used before possession, it
is inept, ib.; nature of possession required,
ib.; furniture in furnished house not ar-
restable in tenant's hands, ib.; nor horse
in smithy in smith's hands, ib.
Arrestment (continued), what property arrest-
able, 311; all moveable property to which
debtor has right, ib. ; sums owing by bonds,
contracts, and personal obligations not fol-
lowed by infeftment, arrestable, ib.; sum in
heritable bond, infeftment not being record-
ed, found arrestable, ib.; price of heritable
property in hands of trustees arrestable, ib.;
funds specially destined as by consignment
in bank not arrestable, ib.; nor alimentary
funds, 312; nor pensions, ib.; nor salaries
of judges, ib.; nor wages of servants, &c.,
save so far as exceeding a proper mainte-
nance, ib.; minister's stipend is arrestable,
ib.; bills cannot be arrested, ib.; nor fu-
ture debts, ib.; but different where obliga-
tion entered into but payment postponed,
ib.; subject may be under litigation, ib. ;
what arrestment of current rents and an-
nuities attaches, ib. 313.
of ships, execution is by direct attach-
ment, 308.
See Ships.
nexus created by, 313; to what extent
arrestment subsists after death of arrestee,
ib.; it subsists after death of common
debtor, ib.
ad fundandam jurisdictionem, necessary
where debtor is a foreigner, 306; requires
separate letters, ib.; when jurisdiction
founded, summons may be raised and ar-
restment used on dependence, ib.; opinion
that arrestment ad fund. jur. imposes a
nexus on the property, ib.; unnecessary in
action of multiplepoinding, ib.
-on dependence of action, may proceed
on summons raised and signeted, 305;
arrestment may be used before execution
of summons, ib.; null, unless summons exe-
cuted and called within a limited time, ib.;
warrant to arrest may be in summons, ib.;
competent at any period of the litigation,
ib.; effect of vitiation in warrants, ib. 306.
in security where debtor vergens ad in-
opiam, 306; proceeds on liquid ground of
debt, of which term of payment not yet
arrived, with letters of arrestment, ib.
in execution, nature of, 307; may pro-
ceed on (1.) special letters of arrestment on
liquid ground of debt, ib.; (2.) letters of
horning and poinding, ib.; (3.) warrant in
extract decree, ib.
how executed, by service of schedule on
arrestee, 307; terms of schedule, ib.; re-
quisites of execution, see Execution of
Charge; Ships, arrestment of.
Arrestment, Edictal-will may contain war-
rant to arrest in hands of persons furth of
Scotland, 307; debtor is protected against
ignorant bona fide payment, 309; it is
made at office of edictal citations, 310;
should be notified to agent for arrestee, ib.
Recall of, remarks on, 314; effectually
recalled by letter, though written under
false impressions, ib.
Competition of, criterion is priority of
time, 314; competition with intimation of
assignation, ib.; when ranked pari passu,
ib.; modes of preventing preferences, ib.
Prescription of, arrestments now pre-
scribe in three years, 315; mode of reckon-
ing in future and contingent debts, ib.
Assignation, legal, 234; may be mere act of
law, as marriage, ib.; or judicial sentence,
as confirmation, ib.
its original form, 234; its history, ib. ;
formerly creditor could not force a dif
ferent creditor on his debtor, ib.; re-
medy introduced in England, 235; but
creditor could only grant a mandate to re-
cover, ib.; difference between forms of
transferring moveable rights, 236; the
debt assigned must not have been paid to
original debtor, ib.; assignee must know
the fact of debt not having been paid, ib.
clauses of, the narrative, 237; cause of
granting, ib.; the assigning clause, 238;
destination where bond excludes execu-
tors, 239; the grounds of debt are as-
signed, ib.; no voces signatæ in assigning
clause, 240; clause of warrandice, ib., see
Warrandice; warrandice from fact and
deed leaves warrandice debitum subesse un-
touched, 241; rules regarding warrandice,
ib.; clause of delivery of ground of debt,
its purpose, 239, 240. Registration and
testing clause, see Registration, Testing
clause; must be delivered to receive effect,
242; delivery completes title of assignee as
regards cedent, ib.
Assignation, intimation of-principle upon
which it is founded, 242; it is analo-
gous to delivery of corporeal moveables,
ib.; it is essential to complete assignee's
right, 243; it removes fund from cedent's
control, 244; assignation first intimated
is preferable, 244; right remains in cedent
till assignation be intimated, ib.; opera-
tion of sequestration in vesting trustee
with estate, 245; an English deed of as-
signment pleaded on in Scotland requires
intimation, 251.
notarial intimation of its purpose,
246, its form, ib.; assignee is the proper
party to make intimation, 247; same per-
son cannot be procurator and notary in
the intimation, ib.; assignation must be
produced at intimation, ib.; and execution
of intimation must bear that it was pro-
duced, ib.; statement in schedule must
identify the debt, ib.; hour as well as date
should be inserted, ib.; intimation to be
made at debtor's dwelling if he be not
found personally, ib.; form of intimation
when debtor is abroad, 248; it must be
judicial, ib.; when more than one debtor,
intimation to one is sufficient, ib.; but
another debtor is not in malâ fide to pay
to cedent, ib.; intimation to a company or
it
incorporation, ib.; when to a company
should be entered in their books, 249; this
mode usual, but voluntary consent of the
company is necessary for such intimation,
ib.; if consent not given, intimation should
be given to all the officers, ib.; intimation
by notary not essential to the validity
of an assignation, ib.; effect of debtor's
private knowledge of assignation, ib.; is
debtor having private knowledge in malâ
fide to pay to cedent? ib.; communing
does not supply place of intimation, 250.
Assignation (continued), equipollents to inti-
mation-1. judicial acts are such, 250; 2.
debtor's written engagement to pay, ib.; 3.
payment of interest, ib.; notification to fac-
tor and memorandum made in books of his
principal is sufficient, ib.; 4. intimation may
be proved rebus ipsis et factis, 251; legal
and judicial, require no intimation, 251;
when deed is re-
intimation unnecessary,
gistered for publication, 252; or when the
debtor is a party to assignment, ib.
its effect, when completed, 252, 253;
right assigned must exist, and be capable
of transmission, 252; cedent's right must
be of a transmissible nature, 253; rights
enjoyed by a delectus personce are intrans-
missible, ib.; assignation not a habile
transmission of heritage, 253; right to
exact rents may be assigned, ib.; assignee
is vested with diligence done by cedent,
ib.; assignee may do diligence in his own
name even after the death of the cedent,
254: or in the name of the cedent if alive,
ib.; debt may be disproved by cedent's
oath before intimation, ib.; or after, if
assignation be proved to be gratuitous,
255; effect of completed assignation where
assignee is a latent trustee, ib.; exception
to rule assignatus utitur jure auctoris, ib.
open
variety in form of-transference of
accounts, 256; assignation of policies of
insurance, 257; of salaries of offices, 258;
of patents and copyrights, ib.; of bank
stock, ib.
of writs, clause of, in charter, 537;
purpose of clause is to vindicate the gran-
tee's right, ib.; form of clause, 538; use
of assignation to writs, ib.; clause in dis-
position with double manner of holding,
615; is it implied? 616; its effect, ib.;
does not transmit obligation to relieve of
stipend, ib.
of rents, 538; use of clause, 539; in
disposition with double manner of holding,
617-618; new form, ib.
of writs and rents, warrandice of, 539.
Assignee of decree, may obtain warrant for
diligence in his own name, 284.
Attainted persons, forfeiture of estate to
Crown, 46; rights of others not affected by
forfeiture, ib.; cannot plead incapacity to
contract in bar of their own obligations, ib.
Attorney, power of, see Factory.
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