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' Tm.r. VII. Of the Voluntary Transmission of Jfore- 

 ablt and Personal nights ; or of Assignations. 



1 . Heritable rights, when they are clothed with in- 

 feftment, are transmitted by disposition, which is a writ- 

 ing containing procurator)- of resignation and precept 

 ' ef seisin ; but those which either require no seisin, as 

 servitudes, patronages, reversions, &c. or on which 

 seisin has not actually followed, and also all moveable 

 rights, are transmissible by simple assignation. He 

 who grants the assignation is called the calent, and he 

 who receives it, the assignee or cessionary. If the as- 

 signee conveys his right to a third person, it is called a 

 traiuiatioH ; and if he assigns it back to the cedent, a 

 retrocession. Certain rights are, from the uses to which 

 they are destined, incapable of transmission ; as ali- 

 mentary rights : Other* cannot be assigned by the per- 

 son vested in them, without special power given to 

 him, a* tacks, &c. The transmission of a third sort is 

 not presumed to be intended, without an express con- 

 veyance , as of paraphernal goods, which are so proper 

 to the wife, that a general assignation by her to her 

 husband of all that did or should belong to her at her 

 decease, does not comprehend them. A liferent right 

 is, by its nature, incapable of a proper transmission ; 

 but it* profits may be assigned while it su'o-i-u. 

 Bstattioa 2. Assignations must not only be delivered to the 

 assignee, but intimated by him to the debtor. Inti- 

 mations have been probably first introduced merely as 

 an interpellation or prohibition to the debtor, that he 

 should not pay to the original creditor ; but they came 

 Asa ward* to be considered as likewise necessary for 



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_ the conveyance. 



3. Certain conveyances need no intimation. 1. In- 

 dorsations of bills of exchange ; for these are not to be 

 fettered with forms introduced by the laws of particu- 

 lar states. 2. Bank-notes are fully conveyed by the 

 bare delivery of them ; for as they are payable to the 

 bearer, their property must pass with their possession. 

 3. Adjudication, which is a judicial conveyance, and 

 marriage, which is a legal one, carry the full right of 

 the subjects thereby conveyed, without intimation. 



TITLE VIII. Of tke Transmission of Moveable Rights 

 ty the Diligence of tkt Law ; or of Arrettments and 

 Poisutingt. 



1 The diligences whereby a creditor may affect his 

 debtor's moveable subjects, are arrrstment anil jwinditig. 

 -rrtlment is sometimes meant the securing of a 

 criminal's person till trial ; but, as it is understood in 

 the rubric of this title, it is the order of a judge, by 

 which be who is debtor in a moveable obligation to the 

 arrester's debtor, is prohibited to make payment or de- 

 livery till the debt due to the arrester be paid or se- 

 cured. 



2. AH debts in which one is personally bound, 

 though they should be heritably secured, are grounds 

 upon which the creditor may arrest the moveable 

 estate belonging to his debtor; for every creditor, 

 whatever the nature of his debt may be, ought to have 

 the whole of his debtor's estate subject to his diligence. 

 Arwtment may proceed on a debt, the term of payment 

 whereof it not yet come, in case the debtor be vergens 

 oJutopiam. If a debt be not yet constituted by a decree 

 or ttgtafrticT'. the creditor may raise and execute a 



his debtor for payment, on which 

 Mtment may be used, in the MM 



manner as inhibition, which is called arrestment upon a Law 

 dependence. of Scotland, 



3. Certain debts are not arrestable: 1. Debts due r ~ 



by bills, for those pass from hand to hand as bags of d ''^" ot 

 money. 2. Future debts. 3. Alimentary debts, for arres table. 

 these are granted on personal considerations, and so 

 are not communicable to creditors. 



4. Arrestment is only an inchoated or begun dili- Forthcom. 

 gence; to perfect it there must be an action brought ing on ar- 

 by the arrester against the arrestee, to make the debt restmcnt. 

 or subject arrested forthcoming. In this action the 

 common debtor must be called for his interest, that he 



may have an opportunity of excepting to the lawful, 

 ness or extent of the debt on which the diligence pro- 

 ceeded. N 



5. Poinding is that diligence affecting moveable sub- Poinding. 

 jects, by which their property is carried directly to the 

 creditor. It may have for its warrant either letters of 

 horning, containing a clause for poincling, and then it 



is executed by messengers ; or precepts of poinding, 

 granted by sheriffs, commissaries, &c. which are exe- 

 cuted by their proper officers. No poinding can pro- 

 ceed" till a charge be given to the debtor to pay or per- 

 form, and the days thereof be expired. 



6. In the execution of poinding, the debtor's goods Form. of 

 must be appraised, first on the ground of the lands [winding. 

 where they are laid hold on ; and a second time at the 

 market-cross of the jurisdiction, by the stated ap- 

 praisers ; or if there are none, by persons named by 



the messenger or other officer employed in the dili- 

 gence. Next the messenger must, after public intima- 

 tion by three oyesses, declare the value of the goods 

 according to the second appraisement, and require the 

 debtor to make payment of the debt, including interest 

 and cxpences. If payment shall be offered to the cre- 

 ditor, or in his absence to his lawful attorney ; or if, in 

 case of refusal by them, consignation of the debt shall 

 be made in the hands of the judge-ordinary, or his 

 clerk, the goods must be left with the debtor ; if not, 

 the messenger ought to adjudge and deliver them 

 over, at the appraised value, to the user of the dili- 

 gence, towards his payment : And the debtor is enti- 

 tled to a copy of the warrant and executions, as a 

 voucher that the debt is discharged in whole or in part 

 by the goods poinded. 



TITLE IX.. Of Prescription. 



1. Prescription, which is a method both of establish- Prescrip- 

 ing and of extinguishing property, is either positive or tion posi- 

 negative. Positive prescription is generally defined as tiv< ; or ne * 

 the Roman usucapio, the acquisition of property, (itS 8 * 1 * 6 - 

 should rather be when applied to our law, the securing 



it against all further challenge, ) by the possessor's con- 

 tinuing his possession for the time which law has de- 

 clared sufficient for that purpose. Negative is the loss 

 or omission of a right, by neglecting to follow it forth 

 or use it during the whole time limited by law. 



2. Positive prescription was first introduced into our Positive. - 

 law by 1617, c. 12, which enacts, that whoever shall 



have possessed his lands, annualrents, or other herita- 

 ges, peaceably in virtue of infeftments for forty years 

 continually after their dates, shall not thereafter be dis- 

 quieted in his right by any person pretending a better 

 title. The act requires, that the possessor produce, as 

 his title of prescription, a charter of the lands preceding 

 the forty years possession, with the seisin following on 

 it; and where there is no charter extant, seisins, one 

 or more, standing together for forty years, and pro- 

 ceeding either on retours, or precepts of c tare constat. . 



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