lieved that it would be otherwise were the ship hired by the buyer for a term of time.1 Delivery of a portion of a cargo does not bar the right to stop the remainder.2 It has been decided that the seller cannot stop when the buyer has put his mark on the goods, after they have been deposited in a place of public accommodation, as an inn.3 So also, where a shipmaster has given a special receipt for the goods as shipped by the buyer.4

Bill of Lading.-Where bills of lading have been indorsed for value, the goods cannot be stopped, on account of the price not having been paid to the original seller, unless the indorsement have been made with information of the insolvency of the indorser, or before the goods have been put on board, by an understanding with the shipmaster. It does not affect the transference that the indorsee may have simply known that the goods have not been paid for. By statute, the right to stop is barred, in so far as it might affect the disposal of the effects represented by any of the following documents, when made by "any person intrusted with or in possession of it," viz. "any bill of lading, India warrant, dock warrant, warehouse-keeper's certificate, wharfinger's certificate, warrant, or order for delivery of goods," provided the buyer has no notice on the face of the document, or otherwise, that the person intrusted with it is not the true owner of the goods represented by it.7

8

The buyer's getting possession of the goods will not prevent the stoppage, if he have failed to fulfil an absolute condition attached to the delivery, as, that the price should be paid, or a bill given; and it has been decided in England, that if a carrier, or other person having charge of the goods, deliver them by mistake, after receiving an order to stop them, restitution may be obtained.9

1 Law of Bankruptcy, &c. 185.-2 Ibid.-3 Ellis v. Hunt, 3 T. R. 464. B. C. i. 203.5 Br. St. 862. B. C. i. 203, et seq. M. on V. and P. 195. M. on V. and P. 196.-7 6 Geo. IV. c. 94, § 2. Law of Bankruptcy, 189. —3 B. C. i. 223.-9 M. on V. and P. 200. Henley's B. L. 323.

CHAPTER IV.

TRANSMISSION OF RIGHTS IN LAND.

SECT. 1.-Conveyance to a Purchaser where Seller's Title is complete.

THE method of constituting a Fee, and creating a complete Title, has already been considered.*

The fee thus brought into existence may be transferred to a purchaser, by a process which denudes the original vassal, and puts the purchaser in his place. The deed which, in this transaction, corresponds with the Charter, in giving the purchaser the power to make good his right by Infeftment, is called a Disposition. It contains a Narrative, Cause of Granting, Dispositive Clause, Warrandice, Clause of Registration, &c., in terms similar to those of the charter. It, however, does not contain the Tenendas and Reddendo (which express the nature of the feu, and the conditions on which it is held), because the new vassal is to hold in every respect as his predecessor did. The obligation to infeft is peculiar. It binds the seller to give infeftment to the purchaser, either to hold of himself or to hold of his superior, and the precept of sasine is expressed in such general terms as may be applicable to either of these cases.2 The alternative enables the purchaser either to infeft himself as vassal to the seller, and afterwards work off the seller's intermediate superiority by getting a Confirmation from the superior, or to resign the fee into the superior's hands, and procure a new Charter from him. To enable the purchaser to adopt this latter alternative, the obligation to infeft is followed by a Procuratory of Resignation, or mandate authorizing the fee to be resigned to the superior that he may invest the new vassal.3

The Warrandice, in an ordinary disposition, unless otherwise defined, is absolute, i. e. the seller warrants the purchaser against all defects of title and burdens. If the property be recovered from the buyer through defect of title in the seller, the former will be entitled to damages equal to the value at the period of eviction.5 The purchaser is not bound to defend his right if an action is brought against him on the

*See p. 52, et seq.-+ See p. 54.-1 B. on C. T. 27.- Ibid. 36.-3 Ibid. 42. R. L. ii. 272. B. on C. T. 44.- See p. 149.-5 E. ii. 3, 30. Br. on S. 270.

ground of defect in the seller's title, but he should give warning to the seller; and if, through his delay in doing so, the seller be foreclosed from pleading any defence he would otherwise have, the latter is released. The warrandice is not directed against such burdens as arise from the nature of the property or the operation of law, unless they are specified.2 The buyer may call on the seller to remove all impediments to the title, and encumbrances, before he is bound to pay the price. It is sufficient that the seller produce an effectual title by Prescription.*

The purchaser, on receiving the Disposition, may immediately get himself infeft by virtue of the indefinite Precept of Sasine. If no other process intervene, this is what is termed a Base infeftment, the purchaser holding not of the seller's superior, but of the seller himself. The property is thus protected to the purchaser from diligence for the debts of the seller, and from any subsequent title granted by him to another person; but if the purchaser wish to be put in the seller's place, and to hold his lands of the original superior, he must adopt one or other of the following methods for completing his title.

3

SECT. 2.-Completing Title by Resignation.

When the feudal vassal restored the estate to the superior, by whom it had been granted to him, he appeared before him, and resigned it into his hands by the delivery of a symbol. If the superior is the purchaser of land holding of himself, such is still the process by which he is re-invested in it. The disposition to the superior contains a Procuratory of resignation, on the authority of which the procurator appears before the superior or his commissioner, and resigns the fee into his hands, by delivery of "staff and baton." The ceremony is sufficiently performed before the superior's "known agent." The infeftment of the vassal is thus extinguished, and the right of the superior revives. The ceremony is narrated in an instrument which, as it has the effect of an infeftment in favour of the superior, is recorded in the register of sasines. By statute the notary public's "Long Docquet," which used to be adhibited to the instrument, is abolished.4

When the vassal intended, not to restore the fee to the superior, but to transfer it to some other person, he required

1 Br. on S. 264.-2 B. on C. T. 45.-* See p. 59.-3 B. on C. T. 252.— 4 E. ii. 7, 19. 1669, c. 4. R. L. ii. 228. 8 & 9 Vict. c. 35, § 8.

H

to resign it into the hands of the superior, who would, if he consented to the arrangement, re-deliver it to the person pointed out by the original vassal. Formerly the superior might refuse his consent, and if, having consented, he died before fulfilling his promise, his heir could not be compelled to perform it. By the act 1469, c. 36, for the security of creditors the superior was compelled to invest an adjudging creditor of the vassal on payment of a year's rent of the lands. When the superior refused to invest a purchaser the seller granted to the latter a trust-bond, on which he led an adjudication (see this head in Index), and on proffering the year's rent, compelled the superior to invest him. In the act of 1747 a clause was inserted to enable persons who held procuratories of resignation from vassals, to compel superiors by a charge of horning to grant them investments.

2

Entry-money. The payment of a year's rent on each investment had in the mean time become an established practice, and continued to be claimed by and paid to the superior, after the passing of the act, which reserved to him "such fees or casualties as he is by law entitled to receive.” This sum is called Entry-money. It consists of a year's rent of the estate in so far as enjoyed by the vassal, and so, if the vassal have built houses on the land, their rent will fall to be added; but if he have feued it off to be built on by others, the amount of the feu-duty only can be demanded.3 In the original charter, it is usual for the superior to tax the entrymoney to a limited sum, such as a double feu-duty. Entrymoney is payable only by "singular successors," or persons acquiring by gift or for a pecuniary consideration, and not by heirs, either by legal succession or destination; so, the substitute in an entail, though not a blood relation of his predecessor, pays only the usual casualty of relief. On paying the entry-money, the purchaser is entitled to obtain investment in his own favour, and to any order of successors among his heirs-at-law, or he may demand that his new charter and precept shall be assignable before sasine, the assignee having as broad a title as the original purchaser, viz. a destination to himself and any order among his heirsat-law which he may fix.5

The act of resignation is performed in the same manner as that already stated, with this difference, that, as the lands are not given back to the superior himself, he immediately

120 Geo. II. c. 50, § 12. R. L. ii. 302.-2 Anderson v. Marshall, 30th November 1824.-3 Ross v. Heriot's Hospital, 6th June 1815.-* Stirling Ewart, 14th February 1842.—5 Hamilton v. Hopetoun, 8th March 1839.

v.

delivers the symbol to the purchaser or his procurator. An instrument detailing the ceremony used to be prepared, but it fell into desuetude, and was finally abolished by statute.' By re-delivery of the symbol, the superior gives the land to the new vassal, but he does not thus put him in personal possession of it. This final act must be accomplished by a ceremony analogous to that by which a fee is constituted. The superior grants a charter of resignation, which is chiefly distinguished by a clause called the Quaequidem, reciting the manner in which the fee came back to the superior's hands by resignation. As this charter gives only the title as it was resigned into the superior's hands, it contains no warrandice. On the precept of sasine contained in the charter, the purchaser takes infeftment, and his right as vassal to the original superior is then completed.2

SECT. 3.-Completing Title by Confirmation.

There is another method by which the superior may consent to receive a new vassal, termed Confirmation. In the early stages of the law, when a Procuratory of Resignation or a Precept of Sasine fell by the death of the granter, and when it depended much on the superior's pleasure whether he would invest a new vassal or not, it was a great object with the purchaser to secure himself in the mean time against the acts of the seller and his creditors. For this purpose he procured a precept, authorizing him to take infeftment as vassal to the seller. By such means sub-infeudations were accumulated, and independently of the confusion of titles so occasioned, the more superiors the vassal had over him, the greater was the risk of his lands being forfeited for their offences. The subvassal had therefore a material interest in reducing the number by exchanging his holding of the seller for one of the seller's superior. While his infeftment, however, was only from the former, there was no process by which he could alter the nature of the holding. Hence, it became the practice to require from the seller two precepts; one to enable the purchaser to hold of him (de se), the other to enable the purchaser to hold from him of his superior (a se de superiore suo). When the purchaser took infeftment on the former, his right was made real as vassal to the seller. When he took infeftment on the latter, he completed no right in the mean time, but prepared a title for the superior's sanction;

18 & 9 Vict. c. 35, § 9.-2 B. on C. T. 254, et seq.