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and when this infeftment was confirmed by a charter of confirmation, he then held of the superior.1

In progress of time the system was simplified. The Precept of sasine was made ambiguous, neither authorizing exclusively a holding of the vassal nor of the superior,-and the purchaser when he took infeftment attributed his holding according to circumstances. Immediately on receiving the disposition and precept, he can now take an infeftment, by which he in the first instance holds of the vassal who conveys to him, and he can then procure a charter of confirmation, by which the nature of the holding is changed to one of the superior.2

SECT. 4.-Conveyance where Seller's Title is not complete.

In the above details the person disposing of his property is presumed to be himself fully invested by a sasine in his own favour. A slightly different form will be adopted, if instead of being infeft he is only entitled to be so. Thus the seller's

ancestor may have been infeft, while the seller has not been served heir to him.* The Disposition will in such a case be in the usual form, down to the obligation to infeft, which will bear that the granter binds himself to procure himself served and retoured heir to his ancestor at his own expense, and after being so, to infeft the purchaser; and to enable the purchaser to enforce fulfilment of the obligation, there is a procuratory for the purpose of getting the granter served heir to his ancestor, and infeft.3 The seller may either have got a disposition in his own favour, on which he has not been infeft and entered with the superior, or he may have succeeded to such a title left by his ancestor. In the latter case, as a preliminary step, he will have to make up a title by a general service. Possessing then a Procuratory of resignation and a precept of sasine, in which he could himself make up his titles in the manner above described, to save an accumulation of deeds, he conveys these rights to the purchaser, particularly describing them in the assignation to the titles. The latter then makes up his titles, as if the procuratory and precept had been originally conceived in his own favour.

SECT. 5.-Conveyance of Burgage Property. The explanation of the peculiarities applicable to the ten

1 B. on C. T. 17, et seq. R. L. ii. 252, et seq.-2 R. L. T. 281.- See above, p. 100.-3 Bell on Deeds, i. 111. B. on C. T. 78.-† See p. 102.-4 Bell on Deeds, i. 113.

ii. 272. B. on C. Jur. St. i. 108. Jur. St. i. 108.

ure of this description of property already made* have necessarily included a notice of the manner in which it is transferred from person to person.

The seller, not being entitled to have a vassal under him, cannot give a precept of sasine for infefting the purchaser; he can only put the purchaser in his own place, by resigning into the hands of the magistrates, as commissioners to the crown, for infeftment to be granted to the new owner. In the disposition, therefore, which is granted by the seller, and which in other respects resembles the ordinary feudal disposition, he appoints procurators to resign his title into the hands of the magistrates by the symbols of staff and baton. The magistrates having received the resignation, give over the property to the purchaser, or his attorney, by the symbols of earth and stone, and hasp and staple, or by delivery of a pen in the council-chamber. The town-clerk acts as notary, narrating the resignation and the sasine in one deed, called an Instrument of Resignation and Sasine.1

CHAPTER V.

MISCELLANEOUS METHODS OF Transfer.

SECT. 1.-Assignment.

DEBTS and obligations are transferred by Assignation, or as it is now generally termed Assignment. Bills of exchange, a method of transfer so important as to require separate consideration at length, are a species of assignment. The person who transfers is called the Cedent; the Receiver the Assignee. The leading peculiarity of this species of transfer is, that it is completed to the effect of defeating the rights of third parties, by notice to the debtor or other party subjected to the original obligation, who is thus warned that the obligation is transferred to a new holder. Though an assignation not intimated be valid against the granter, who cannot question his own deed; yet if, before intimation of a first assignment, the cedent shall grant a second to a different assignee, the second, if it be intimated before the first, will be preferred to the first. If an assignation be not

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* See p. 58.-1 B. on C. T. 133. Jur. St. i. 604. 8 & 9 Vict. c. 35, § 7.

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intimated by the assignee during the life of the cedent, any creditor of the cedent, who upon his death shall confirm the debt assigned before the assignment be intimated, shall be preferred to such assignee." The debtor's private knowledge that there has been an assignment will not supply the place of notice.2 If sequestration of the cedent's estate precede it, the intimation will be ineffective to take the right out of the sequestrated estate. There is a peculiarity in the assignment of leases. As the landlord is the receiver not the payer of the debt, the creditors of the tenant have no interest in his receiving intimation, and Possession of the subject of the lease by the assignee marks the time when the transfer has been completed so as to affect them.4

Assignments are specially considered in connexion with various branches of the law discussed in this volume.

The conveyance of an uncompleted title to land by assignation is specially examined in the chapter on the transference of rights in land. (See p. 172.)

Patent Rights, and Rights in literary property are transferred by assignment, and in the latter case a special form is provided by act of parliament. (See p. 89, and p. 71.)

Bills of Lading, more especially connected with the contract of Letting and Hiring as applied to ships, are considered, along with other documents of a like character, in the effect which their onerous transference has in defeating the privilege of stopping in transitu. (See p. 164.)

SECT. 2.—Transfer of Rights in British Vessels.

The sale of the whole or of part of a ship, by one British subject to another, requires a written instrument, called a Bill of sale, containing a recital of the Certificate of registry. In the case of any serious mistake which might leave the identity of the ship doubtful, the document is null, and no action can be maintained on it; but any petty mistake, or the accidental recital of the wrong certificate of registry, will not vitiate it. The bill of sale does not pass the property to the purchaser until an entry has been made in the register, of the name, residence, and description of the vendor and purchaser respectively, and the date and production of the bill of sale; and (unless a new registry is to be made) the same particulars have to be indorsed on the certificate of

E. iii. 5, 3.2 Dickson v. Trotter, Hailes, 675.-3 See the Law of Bankruptcy, &c. 317.— Ibid. 234.5 8 & 9 Vict. c. 89, § 34.

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registry. This indorsement is the criterion of preference among registered claimants, he who has the first indorsement having the preferable right to the property. After one transfer is entered, another must not be entered from the same granter, until the lapse of thirty days after the entry of the former, or after the return of the vessel if she was then absent. Where there is more than one claimant for an indorsement, after a transfer has been entered, it must be given to the person who presents his certificate within thirty days from the entry of the transfer, or from the return of the vessel if the transfer was made in her absence; but if no one presents within that period, the indorsement may be made to the first claimant. There are provisions applicable to cases where it may be inconvenient to bring the ship to her port of registry, and for enabling sales to be made in absence of owners by their agents, under the superintendence of the commissioners of the customs, on their being satisfied of the fair dealing of the parties, and receiving security. On every transference of property a new registry may be obtained, if the owners shall desire it.5

Where property in a ship is mortgaged in security for debt, or assigned to a trustee to be sold for payment of debt, entry in the register and indorsement take place, expressive of the limited nature of the transfer;6 and such a transfer is effectual against the creditors of the owner, if he should become bankrupt after making it.7

18 & 9 Vict. c. 89, § 37.-2 Ibid. § 39.- Ibid.- Ibid. § 44.5 Ibid. § 42. Ibid. § 45.-7 Ibid. § 46.

PART VI.

CONTRACTS INVOLVING COPARTNERSHIP.

CHAPTER I.

COMMERCIAL COMPANIES.

SECT. 1.—Nature and Constitution of the Contract.

THIS description of partnership is a contract by which two or more individuals unite their property, talents, or labour, with the view of dividing the profit or loss according to some fixed ratio. It is not necessary that each partner make the same kind of contribution to the common fund. One may provide money, another labour, another skill, and a third perhaps his credit, or the influence of his name.1 The joint property or stock is held by all the partners in trust for the uses of the society. It is liable in the first place to meet the debts of the partnership, and in the second to the claims of the individual partners according to their agreement.2 The contract has the effect of an obligation to transfer the property intended to be made common from the individuals to the company, and when the necessary solemnities of transference, as Tradition in moveables, Infeftment in heritage, -have been performed, the property vests in the company.3 An unincorporated company, however, cannot hold feudal property in its social name; the names of the partners must be used. The same rule appears to have formerly applied to all actions defended or pursued by companies, but it seems now to be held that while a company, which has merely a

descriptive name, such as 66 The Culcreuch Cotton Company,"

1 E. iii. 3, 19. Smith's M. L. 22, et seq.-2 B. C. ii. 612.- Ibid. 614.B. P. 357. See Denniston & Co. v. Macfarlane, 16th February 1808.Aitchison & Co. v. Burnside's Trustees, 4th February 1832.

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