674 



LAW. 



Law the executors of ministers, of half a year's benefice, 

 ,,t' Scotland, over and above what was due to the minister himself 

 ^"""Y""""' for his incumbency. So that if the incumbent survives 

 Whitsunday, his executors have the half of that year 

 tor the deceased's incumbency, and the other half as 

 annat ; if lie survive Michaelmas, they have that whole 

 year for his incumbency, and the half of the next in 

 Nature of name of ann. The executors of a minister need make 

 that right. U p no title to the ann by confirmation : Neither is the 

 right assignable by the minister, or affectable tor his 

 debts ; for it never belonged to him, but is a mere gra- 

 tuity given by law to those for whom it is presumed the 

 deceased could not sufficiently provide : And law has 

 given it without distinction to the executors of all mi- 

 nisters, even where the stipend is made up, not of 

 teinds, but of the public revenue of a borough, or of a 

 voluntary contribution. 



TITLE V. Of the Transmission' of Heritable Rights by 

 the Diligence of the Lam ; or of Inhibitions and Adju- 

 dications. 



1 . The constitution and transmission of feudal rights 

 being explained, and the burdens with which they 

 are chargeable, it remains to be considered how these 

 rights may be affected at the suit of creditors by legal 



Diligences, diligence. Diligences are certain forms of law, where- 

 by a creditor endeavours to make good his payment, 

 either by affecting the person of his debtor, or by se- 

 curing the subjects belonging to him from alienation, 

 or by carrying the property of these subjects to himself, 

 are real They are either real or personal. Real diligence is 

 or personal t ^ at which is proper to heritable or real rights ; person. 

 al is that by which the person of the debtor may be se- 

 cured, or his personal estate affected. Of the first sort 

 we have two, 1. Inhibition. 2. Adjudication. 



2. Inhibition is a personal prohibition, which passes 

 by letters under the signet, prohibiting the party in- 

 hibited to contract any debt, or to do any deed, by 

 which any part of his lands may be aliened or carried 

 off in prejudice of the creditor inhibiting. It must be 

 executed against the debtor personally, or at his dwel- 

 ling-house, according to the order prescribed in the 

 case of summonses by 1540, c. 75. and thereafter pub- 

 lished and registered in the same manner with inter- 

 dictions. It secures the creditor who inhibits against all 

 deeds of alienation, even onerous ones that are granted 

 posterior to the publication of the letters, provided he 

 shall, within the time statuted, proceed to perfect his 

 diligence by registration. 



3. Though inhibitions by their uniform style" disable 

 the debtor from selling his moveable as well as his he- 

 ritable estate, their effect has been long limited to heri- 

 tage, from the interruption that such an embargo upon 

 moveables must have given to commerce. 



Does not af. * This diligence only strikes against the voluntary 

 feet neces- debts or deeds of the inhibited person. It does not re- 

 sary deeds, strain him from granting necessary deeds, i. e. such as 



he was obliged to grant anterior to the inhibition. 

 Purging of 5. Inhibitions may be reduced upon legal nullities, 



Keal ilili- 

 gence of 

 inhibition. 



How per- 

 fected. 



Limited to 

 heritage. 



inhibitions, arising either from the ground of debt, or the form of 

 diligence. When payment is made by the debtor to 

 the inhibiter, the inhibition is said to be purged. 

 Real dili- 6. Adjudication is a form of diligence, by which cre- 

 gence of ad- ditors proceed against the lands of their debtors, by 

 .judication. way o r act j ori before the Court of Session. Such part 

 only of the debtor's lands is to be adjudged as is equi- 

 valent to the principal sum and interest of the debt, 

 with the composition due to the superior and expences 



of infeftment, and a fifth part more in respect the ere- Law 

 ditor is obliged to take land for his mone^ ; but with- of Scotland. 

 out penalties or sheriff-fees. *The debtor must deliver """ "V~" 

 to the creditor a valid right of the lands to Mfe adjudg- 

 ed, renounce the possession in his favour, and ratify 

 the decree of adjudication. And law considers the rent 

 of the lands as precisely commensurate to the interest 

 of the debt, so that the adjudger lies under no obli- 

 gation to account for the stiqilus rents. In this, which 

 is called a special adjudication, the legal, or term of re- Special ai 

 demption, is declared to be five years j and the creditor JU 

 attaining possession upon it, can use no further execu- 

 tion against the debtor, ^uiless the lands be evicted from 

 him. 



7. Where the debtor does not produce a sufficient General ad- 

 right to the lands, or is not willing to renounce the judication. 

 possession, and ratify the decree, (which is the case 



that has most frequently happened,) it is lawful for the 

 creditor to adjudge all right belonging to the debtor, 

 in the same manner, and under the same reversion of 

 ten years, as he could by the former laws have apprised 

 it. In this last kind, which is called a general adjudi- 

 cation, the creditor must limit his claim to the principal 

 sum, interest, and penalty, without demanding a fifth 

 part more. 



8. There are two other kinds of adjudication, those Adjudica. 

 on a decree cognitionis causa, otherwise called contra tlon c o"tra 

 hcereditatem jaccntem, and adjudications in implement. l '. 

 Where the debtor's apparent heir formally renounces ^ u<t 



the succession, the creditor may obtain a decree cogni- 

 tionis causa, in which, though the heir renouncing is 

 cited for the sake of form, no sentence condemnatory , 



can be pronounced against him, in respect of his renun- 

 ciation ; the only effect of it is to subject the hcereditas 

 jnccns to the creditor's diligence. Adjudications in im- Adjudica- 

 plentenl are deduced against those who have granted tion in im- 

 deeds without procuratory of resignation or precept of P lcmeot - 

 seisin, and refuse to divest themselves, to the end that 

 the subject conveyed may be effectually vested in the 

 grantee. 



9. There is a further diligence by which land estates Judicial 

 may be affected for the recovery of debt, called judicial sales of 

 sales of bankrupt estates. The word bankrupt is in our ballkru P t 

 law sometimes applied to persons whose funds are not es 

 sufficient for their debts ; and sometimes not to the 

 debtor, but to his estate. There was no method known 



in our law for the proper sale of a bankrupt estate, so 

 as the price might be divided among the creditors, till 

 1681, c. 17. by which the Court of Session was em- 

 powered, at the suit of any real creditor, to try the 

 value of the debtor's estate, and name commissioners to 

 sell it for the payment of his debts. But as the com- 

 missioners named by the Session, in pursuance of this 

 act, were generally backward to undertake so ungrate- 

 ful an office, and as the consent of the debtor, which 

 the statute required where his right of reversion was 

 not expired, could seldom be obtained, it was enacted, 

 by 1690, c. 20. that decrees of sale of bankrupt estates 

 should be pronounced by the Court itself, and that such 

 sales might proceed in all cases without the consent of 



the debtor. 



TITLE VI. Of Moveable Rig/its, or of Obligations 



and Contracts. 



1. The laws of heritable rights being explained, Obligation, 

 moveable rights fall next to be considered, the doctrine what ? 

 of which depends chiefly on the nature of obligations. 

 An obligation is a legal tie, by which one is bound to pay 

 or perform something to another. Every, obligation on 

 6 



