676 



LAW. 



S. Testa- 

 ments. 



3. Discharg- 

 es to te- 

 nants. 



4. Merch- 

 ants ac- 

 counts and 

 letters. 

 Bills of ex- 

 change, 



and in- 

 land bills, 

 also privi- 

 leged. 



Delivery of 

 written 



deeds ; 



exceptions. 



Law 2. Testaments, if executed where men of skill in busi- 

 tf Scotland. ness cannot be had, are valid, though they should not be 

 ~" quite formal. 3. Discharges to tenants are sustained 

 without witnesses, from their presumed rusticity or ig- 

 norance in business. 4. Missive letters in re mercatoria, 

 commissions, ami fitted accounts in the course of trade, 

 bills of exchange, and also inland bills, though they be 

 not holograph, are, from the favour of commerce, sus- 

 tained without the ordinary solemnities. 



14. A bill of exchange is an obligation in the form of 

 a mandate, whereby the drawer or mandant desires 

 him to whom it is directed, to pay a certain sum, at the 

 day and place therein mentioned, to a third party. An 

 inland bill is a similar mandate, but implying that both 

 the drawer and acceptor live in the same country. In 

 either case, the .bill is valid without the designation 

 either of the drawer, or of the person to whom it is made 

 payable : It is enough, that tile drawer's subscription 

 appears to be truly his ; and one's being possessor of a 

 bill marks him out to be the creditor, if he bears the 

 name given in the bill to the creditor. A creditor in a 

 bill likewise may transmit it to another merely by in- 

 dorsation, or writing his name on the back of it. 



15. A writing, while the granter keeps it under his 

 own power or his doer's, has no force ; it becomes obli- 

 gatory only after it is delivered to the grantee himself, 

 or found in the hands of a third person. But the follow- 

 ing deeds are effectual without delivery : 1 . Writings 

 containing a clause dispensing with the delivery. 2. 

 Deeds in favour of children, even natural ones ; for pa- 

 rents are the proper custodiers or keepers of their child- 

 ren's writings. For a similar reason, postnuptial set- 

 tlements by the husband to the wife need no delivery. 

 3. Rights which are not to take effect till the granter's 

 death, or even where he reserves an interest to himself 

 during his life ; for it is presumed he holds the custody 



_of these merely to secure to himself such reserved in- 

 terest. 4. Deeds that the granter lay under an antece- 

 dent natural obligation to execute, e. g. rights granted to 

 a cautioner for his relief. 5. Mutual obligations, e, g. 

 contracts ; for every such deed, the moment it is execut- 

 ed, is a common evident to all the parties contractors. 

 Lastly, the publication of a writing by registration is 

 equivalent to delivery. 



16. Contracts consensual, i. e. which might by the 

 Roman law be perfected by sole consent, without the 

 intervention either of things, or of writing, are sale, 

 permutation, location, society, and mandate. Where the 

 subject of any of these contracts is heritable, writing is 

 necessary. 



1 7- Sale is a contract, by which one becomes obliged 

 to give something to another, in consideration of a cer- 

 tain price in current money to be paid for it. Permu- 

 tation differs from a sale chiefly in this, that in permuta- 

 tion, one subject is given in barter or exchange for 

 another ; whereas the price in a sale consists of current 

 money. 



8. Location. 18. Location is that contract, where an hire is stipu- 

 lated for the use of things, or for the service of persons. 

 Jt may, without impropriety, be considered as a species 

 of sale, in which the subject sold is the use or service ; 

 and the price is the hire, which, as in a proper sale, ge- 

 nerally consists of money. 



19. Society, or copartnership, is a contract, whereby 

 the several partners agree concerning the communica- 

 tion of loss and gain arising from the subject of the 

 contract. It is formed by the reciprocal choice that 

 partners make of one another; and so is not constituted 

 in the case of co-heirs, or of several legatees in the same 

 subject. A copartnership may be so constituted that 



Cauauml 



contracts. 



l.Sale. 



2. Permu- 

 tation. 



4. Society, 

 r partner' 

 tliip. 



one of the partners shall, either from his sole right of Law 

 property in the subject, or from his superior skill, be f Scotland, 

 entitled to a certain share of the profits, without being """ ""V"" 

 subjected to any part of the loss ; but a society where 

 one partner is to bear a certain proportion of loss, with- 

 out being entitled to any share of the profits, is justly 

 reprobated. All the partners are entitled to shares of 

 profit and loss proportioned to their several stocks, 

 where it is not otherwise covenanted. A joint trade is J'W tiade> 

 not a copartnership, but a momentary contract, where 

 two or more persons agree to contribute a sum to be 

 employed in a particular sort of trade, the produce 

 whereof is to be divided among the adventurers accord- 

 ing to their several shares after the voyage is finish- 

 ed. 



20. Mandate is a contract, by which one employs and 5. Ma? 

 another to manage any business for him ; and, by the date. 

 Roman law, it must have been gratuitous. It may be 

 constituted tacitly, by one's suffering another to act in 



a certain branch of his affairs, for a tract of time toge- 

 ther without challenge. 



21. Quasi contracts are formed without explicit con- Quasi-con- 

 sent, by one of the parties doing something that by its tracts. 

 nature either obliges him to the other party, or the 



other party to him. 



22. There are certain obligations which cannot sub- Accessory 

 sist by themselves, but are accessions to, or make a obligations. 

 part of, other obligations. Of this sort nvejidejussion, 



and the obligation to pay interest. Cautionry, orjide- Cautionrj-. 

 jiission, is that obligation by which one becomes enga- 

 ged as security for another, that he shall either pay a 

 sum, or perform a deed. Interest (usurw) is the profit Obligation 

 due, by the debtor of a sum of money, to the creditor topaymter- 

 for the use of it. Soon after the Reformation, our le- st ' 

 gal interest was fixed at the rate of ten per cent, per an- 

 num, 1587, c. 52.; from which time it has been gra- 

 dually reduced, till at last, by 12th Ann. Stat. 2. c. 16. 

 it was brought to five per -cent., and has continued at 

 that rate ever since. 



23. Donation, so long as the subject is not delivered Donation. 

 to the donee, may be justly ranked among obligations; 



and it is that obligation which arises from the mere 

 good will and liberality of the granter. Donations 

 imply no warrandice but from the future facts of the 

 donor. Donations made in contemplation of death, or 

 mortis causa, are of the nature of legacies, and like them Donations 

 revokable ; consequently, not being effectual in the nlorils cau ' 

 granter's life, they cannot compete with any of his ""' 

 creditors, not even with those whose debts were con- 

 tracted after the donation. 



24. Obligations may be dissolved. 1. By specifical Extinction 

 performance. 2. By the consent of the creditor, who f "Wiga- 

 without full implement, or even any implement, may t10 

 renounce the right constituted in his own favour. 3. } y ^" 

 Where the same person is both creditor and debtor to 

 another, the mutual obligations, if they are for equal 6e ' Ilt of"! 

 sums, are extinguished by compensation ; if for unequal, ditor. 

 still the lesser obligation is extinguished, and the great- 3. By com. 

 er diminished, as far as the concourse of debt and ere- peosation. 

 dit goes. 4. Obligations are dissolved by novation, 4. By nova- 

 whereby one obligation is changed into another, with- tlon - 



out changing either the debtor or creditor. The first 

 obligation being thereby extinguished, the cautioners 

 in it are loosed, and all its consequences discharged ; 

 so, that the debtor remains bound only by the last. Obli- 

 gations are extinguished, lastly, corlfusione, where the ' 

 debt and credit meet in the same person, either by sue- ' 

 cession or singular title, e. g. when the debtor succeeds 

 to the creditor, or the creditor to the debtor, or a stran- 

 ger to both. ; for one cannot be debtor to himself, 



lastly, 



