Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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depolit; but as the office of fequeftree, to whofe care
the fubjeft in difpute is committed, is not confidered as
gratuitous, he cannot throw it up at pleafure, as a com¬
mon depofitary may do ; and he is liable in the middle
degree of diligence. Confignation of money is alfo ade-
pofit. It mky be made, either where the debt is called
in queftion by the debtor, as in fufpenfions; or where
the creditor refufes to receive his money, as in wadfets,
<bc. The rifle of the configned money lies on the confign-
er, where he ought to have made payment, and not con¬
fignation, or has configned only a part; or has chofen for
confignatory, a perfon neither named by the parties nor
of good credit. The charger, or other creditor, runs
the rifle, if he has charged for fums not due, or has with
out good reafon refufed payment, by which refufal the
confignation became neceflary. It is the office of a con¬
fignatory, to keep the money in fafe cuflody, till it be
called for: If therefore he puts it out at intereft, he mult
run the hazard of the debtor’s infolvency ; but, for the
fame reafon, though he ffiould draw ihtereft for it, he is
liable in none to the configner.
13. Pledge, when oppofed to wadfet, is a contract,
by which a debtor puts into the hands of his creditor a
fpecial moveable fubjeft in fecurity of the debt, to be re¬
delivered on payment. Where a fecurity is eftablifhed
by law to the creditor, upon afubjeft which continues in
the debtor’s pofleffion, it has the fpecial name of an hypo¬
thec. Tradefmen and ffiip carpenters have an hypothec
on the houfe or fhip repaired, for the materials and other
charges of reparation ; but not for the expence of build¬
ing a new ffiip. Owners of ffiips have an hypothec on
the cargo for the freight, heritors on the fruits of the
ground, and landlords on the invefid et Mala, for their
rents. Writers alfo, and agents, have a light of hypo¬
thec, or more properly of retention, in their conftituent’s
writings, for their claim of pains and diffiurfements. A
creditor cannot, for his own payment, fell the fubjeft
impignorated, without applying to the judge-ordinary
for a warrant to put it up to public fale or roup; and to
this application the debtor ought to be made a party;
Tit. 21. Of Obligations by 1\rord or Writ.
The appellation of verbal may be applied to all
obligations to the conllitution of which writing is not
elfential, which includes both real and conffinfual con-
trads; but as thefe are explained under feparate titles,
obligations by ’word, in the fenfe of this rubric, mud be
reftriAed, either to promifes, or to fuch verbal agree¬
ments as have no fpecial name to didinguiffi them. A-
greement implies the intervention of two different par¬
ties, wffio come under mutual obligations to one another.
Where nothing is to be given or performed but on. one
part, it is properly called a promife, which, as it is gra¬
tuitous, does not require the acceptance, of him to whom
the promife is made. An offer, which mud be didin-
guiffied from a promife, implies fomething to be done by
the other party; and confequently is not binding on the
offerer, till it be accepted, with its limitations or con¬
ditions, by him to whom the offer is made 5 after which,
k becom.es a proper agreement.
W. 9 2-3
2. Writing mud neceffiirily intervene in all obligations
and bargains concerning heritable fubjeAs, though they
ffiould be only temporary; as tacks, which, when they
are verbal, lad but for one year. In thefe no verbal
agreement is binding, though it ffiould be referred to
the oath of the party; for, till writing is adhibit¬
ed, law gives both parties a right to refile, as from an
unfiniffied bargain ; which is called ./ectcr pccnitentia.
If, upon a verbal bargain of lands, part of the price dial!
be paid by him who was to purchafe, the interventus ret,
the aAual payment of money, creates a valid obligation,
and gives a beginning to the contraA of fale : And in ge¬
neral, where-ever matters are no longer entire, the right
to refile feems to be excluded. An agreement, whereby
a real right is paded from, or redriAed, called paflum
liberatoriuni, may be perfeAed verbally; for freedom is
favourable, and the purpofe of fuch agreement is rather
to diffolve than to create an obligation. Writing is alfo
effential to bargains made under condition that theyffiall
be reduced in;o writing ; for in fuch cafes, it is pars con-
trattus, that, till writing be adhibited, both parties ffiall
have liberty to withdraw. In the fame manner, verbal
or nuncupative tedaments are rejeAed by our law ; but
verbal legacies are fudained, where they do not exceed.
L. 100 Scots.
3. Anciently, when writing was little ufed, deeds were
executed by the party appending his feal to them ; in
prefence of witneffes. For preventing frauds that might
h tppen by appending feals to falfe deeds, the fubfeription
alfo of the granter was afterwards required, and, if he
could not write, that of a notary. As it might be of
dangerous confequence, to give full force to the fu.fcrip-
tion of the parties by initials, which is more eafily coun¬
terfeited ; our praAice, in order to fudain fuch fubferip¬
tion, feerns to require a proof, not only that the granter
ufed to fubferibe in that way, but that de fatto he had
fubferibed the deed in quedion ; at lead, fuch proof is
required, if the indrumentary witneffes be dill alive.
4. As a further check, it was afterwards provided
that all writ ngs carrying-any heritable right, and other
deeds of importance, be fubferibed by the principal parties,
if they can fobferibe ; otherwife, by two notaries, be¬
fore four witneffes fpeeially defigned. The fubfequent
praAice extended this requifite of the defignation of the
witneffes to the cafe v/here the parties themfelves fub¬
feribed. Gudom has condrued obligations for fums ex¬
ceeding Z,. roo’ Scots, to be obligations of importance^
In a divifible obligation, ,ex. gr. for a dim of money,
though exceeding L. 100, the fubfeription of one notary
is fufficient, if the creditor redriAs his claim to L. 100:
But, in an obligation indivifible, e.g. for the performance
of a faA, if it be not fubferibed in terms of the datute,
it is void. When notaries thus atred a deed, the attef-
tation or doequet mud fpecially exprefs that the granter
gave them a mandate to fign ; nor isdt fufficient that this
be mentioned in the body of; the writing.
5. In every deed, the name of him who writes it,
with his dwelling place or other mark of didinAion, mult
be inferred. The witneffes mud both fubferibe as wit¬
neffes, and their names and defignatjons be inferted in
the body of the deed,: And all fubferibing.witneffes mud
know the granter, and either fee. him fubferibe, or hear
him