SECT. 3.-Transference and Extinction of Heritable

Securities.

Formerly heritable securities could not be transferred without a Disposition and Assignation, containing a long narrative of the granting of the original deed, with the infeftment on it, a conveyance of the Lands and Annualrent, with Obligation to Infeft and Procuratory of Resignation, Warrandice, Assignation of Title deeds, &c., which was followed by the ceremonies of Infeftment, Entry with the superior, &c. Like ceremonies attended the completion of the right of representatives to such securities, and the extinction of securities was accompanied by cumbrous forms. An abbreviated method has now been supplied by statute, but it is still optional to adopt the old system.1

By the new system, a brief form of assignation is supplied, which is made effectual to put the assignee in the cedent's place, by being recorded in the Register of Sasines. When the assignation is contained in a deed for ulterior purposes, as a marriage contract or a family settlement, the whole deed need not be recorded, but a notarial instrument may be prepared in which the part not relating to the security may be set forth generally, while the part relating to the security is repeated at length. The heir of a person who has died. vested in a security, may complete his title by a Writ of Acknowledgment, granted in his favour by the owner of the property, infeft. On the recording of this writ, the heir is held to be invested, and to have entered with the superior.3

2

An heir served and retoured, or a general disponee, may in the same manner complete his title by recording a notarial instrument according to a form provided by the act.*

Discharge. Any heritable security may be discharged by entering in the Register of Sasines a Discharge in the form prescribed by the act.5

All these several species of writ are appointed, on their presentation at the Record of Sasines, to be shortly entered in the minute in common form, and then recorded at length, and redelivered with Certificates of Registration. Assignations are registrable at any time. They are preferable according to the date of registration; and the time of entry in the Minute Book is held to be the date, in all competitions, and in questions under the Scottish Bankrupt acts.6

18 & 9 Vict. c. 31, § 9.-2 Ibid. § 1.- Ibid. § 2.— Ibid. § 4.5 Ibid. § 8.-6 Ibid. § 5-7.

SECT. 4.-Security by Reserved Burden.

This is a form by which a person disposing of landed property may burden it with payment of a sum of money, or may secure a sum of money upon it. It saves the expense of procuring an heritable bond from the new proprietor, and can be used in cases to which an heritable bond does not conveniently apply. The seller of land may make it the means of having part of the price secured on the land, of securing a provision for his children, or of paying his debts. To accomplish such purposes the reservation may be made either in favour of the disponer or of a third party. To make the right effectual it will not suffice that the deed bear, however explicitly, that the acceptor is liable for the debt; the debt must be in most distinct terms declared to be a burden on the lands themselves, and it must be so expressed in the dispositive clause* and sasine.+ The burden must be specific in amount, and the creditor must be named; so no one can convey with a real burden to pay his debts, without stating the amount and the creditors' names. To make it according to principle a real burden, the acceptor of the conveyance must be infeft, and his sasine recorded; but should he omit to make up his title, no one can acquire through him a real right to the land, otherwise than with the burden. The person in whose favour the burden stands has not what can be termed any real right in the lands ;-he cannot enter practically in possession; he holds no security over them by bond or otherwise; his right consists in the limitation on the proprietor's right. It does not therefore require to be completed in his person by sasine, and when he transfers it, he does so by a simple assignation, which is made preferable by being intimated to the proprietor. He is merely a creditor, and must make good his right as other creditors of the proprietor by adjudication, &c.; but then he is a preferable creditor, with whom none of the other creditors of the proprietor can compete.1

SECT. 5.-Faculty to burden.

A proprietor disposing of land may not only burden it with. payment of a certain sum, but may retain a right or Faculty to burden it at a future time, and that faculty may be re

See above, p. 52, 168.-+ Ibid. p. 55.- See Part XIV. Chap. VII. Sect. 2.-E. ii. 3, 49, 50. B. C. i. 686, et seq.

tained either to be exercised by himself, or to be exercised by a third party. The extent to which the burden may be exercised must be defined. Until the person to whom the lands are conveyed is infeft, it does not form a real restriction on his right, and while he is uninfeft, all real right is in the granter of the deed. The faculty becomes extinguished by the death, without exercising it, of the person in whose favour it is reserved. Meanwhile, as it is a burden affecting the creditors, both of the disponer and acquirer of the land, it cannot be exercised, so far as third parties are concerned, secretly by a personal deed. The faculty can only be made use of by a conveyance, giving a real right to the extent of the reservation, and appearing on the record; so long as the right is not so used, it is liable to be attached by the creditors of the person in whose favour it is reserved. Its exercise by a personal deed makes the holder of that deed a creditor of the acquirer of the property, but gives him no preference, at least over heritable creditors, and in the opinion of lawyers, not over personal.1

SECT. 6.-Jedge and Warrant.

A jedge and warrant is a security on burgage subjects entered in the books of the Dean of Guild. It has its foundation in the exercise of the municipal jurisdiction of that officer, in causing ruinous tenements to be repaired. When a tenement is in disrepair, any one having an interest may present a petition to the dean, praying that the building may be repaired, and the cost declared a real burden on the property. A jury is appointed to visit the premises and judge of the necessity of the repairs, and, when they are thus approved of and finished, the amount of the audited account is declared to be a real burden. A purchaser of burgage property should thus, besides the Burgh Register, consult the books of the Dean of Guild.2

SECT. 7.-Securities for Government Advances for

Drainage.

A new species of security on land has been created by statute, for advances made out of the consolidated fund or on exchequer bills, for the improvement of lands by Drain

E. ii. 3, 50. B. C. i. 40, et seq.-2 Jur. St. i. 622-636. B. on C. T.

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age. Advances under the act may be applied for by persons in the possession of land, and provision is made for persons having reversionary interests being warned, and for their appearing and discussing the matter in the Court of Session.2 The advance is repayable by instalments at the rate of 6 per cent. per annum for twenty-two years. The amount is recoverable in the same manner as feu-duties, and it is declared, in general terms, that it " shall be subsequent in order of law to any feu-duty, but shall have preference over all other charges on the same land."4 The execution of the act is in the hands of the Enclosure Commissioners of England. When they are satisfied with the execution of the works, they grant a certificate to the treasury for an advance. The certificate specifies the lands to be held in security, and the amount of advance. A duplicate of it is sent to the applicant for the advance, who must have it entered in the Register of Sasines, and return it with a certificate of Registry to the commissioners.5

CHAPTER III.

PLEDGE.

PLEDGE is defined " a contract, by which a debtor puts into the hands of his creditor a special moveable subject in security of the debt, to be redelivered upon payment."6 Its most extensive exercise in this country is under the warehousing act and the pawnbrokers' acts. The security of the person who advances the money (the pledgee) is in the right to dispose of the pledge if the sum be not repaid at a certain fixed period; but, except where it is otherwise provided by statute, a warrant of sale must be obtained from a judge, on the pledgee's petition.7 Where bills are pledged, however, either specially indorsed to the pledgee or blank indorsed (if such a transaction can be termed pledge), it is held that the pledgee may negotiate the bills without judicial authority. Titledeeds, securities, and other documents of debt are frequently the subject of pledge. In such a case the pledger does not

18 & 9 Vict. c. 101.- Ibid. §§ 8, 21-23.- Ibid. § 34.- Ibid. § 35.-Ibid. §§ 9, 28, 29.—6 E. iii. 1, 33.- Ibid. B. C. ii. 22.—3 Ibid. 23.

make over his right, or even a burden on it, and no sale can take place to refund the pledgee. His security consists in a mere right to retain what is useful to another, and may be necessary to enable the pledger or his creditors to realize the property; but if the property can be made use of without the documents pledged, the pledgee cannot interfere.1

There are certain statutory regulations for the mutual rights and obligations of parties, where effects are pledged to licensed pawnbrokers; thus a pawnbroker refusing to restore a pledge for any sum under £10, on tender of the loan and interest, before the time of redemption has elapsed, may be brought before a justice of peace, and compelled to make restitution, under pain of imprisonment.2 The general statutory regulations as to pawnbrokers and their conduct, whether to individuals or the public at large, is so intimately connected with police regulations, as to belong properly to the department of Public Law.

CHAPTER IV.

LIEN AND RETENTION.

SECT. 1.-General Principles of Lien.

LIEN is a right on the part of a creditor to retain property of a debtor lying in his hands, until a claim by him against the proprietor is satisfied. To establish lien there must be actual possession in some capacity or other, either by the creditor himself or, on his account, by those in his employment. Thus no lien was established in favour of factors to whom a cargo had been sent, and who had failed the day before the ship arrived. Where bankers, having applied the property of a customer to their own uses, enclosed, along with a receipt for the sum, certain bonds covering the amount, sealed them, wrote on the packet, "The property of J. B. Esq.,' (the creditor), deposited them among the securities belonging to their customers, and sent the packet to a person to whom it was addressed, on their coming to the resolution to stop

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1Ibid. 24. 39 & 40 Geo. III. c. 99, § 14.-3 Kinloch v. Craig, 1789, 3 T. R. 119.