lawfully COMMAND and CHARGE the said A, personally, or at his dwelling-place, to MAKE PAYMENT to the complainer of the said sum of L. of principal, with the said sum of L.

of liquidate penalty incurred through failure, after the form and tenor of the said contract of wadset, decree interponed thereto, and instrument of requisition above specified, in all points, WITHIN FIFTEEN DAYS, &c. in common form.

SECT. II.

OF THE MODERN HERITABLE SECURITY.

Heritable securities for debt were at one time (as we are told) constituted in Scotland by the same forms which prevailed in England; they were constituted by a rent-charge, of which Lord Kames has preserved (in the appendix to his Law Tracts), two examples, ne in the 1323, and another in the 1417. Those deeds were not sécured by infeftment; they contained an acknowledgment of the receipt of the money by the borrower, and a right was given to the creditor to draw a certain part of the rents, the debtor consenting that the creditor should recover them by distress against the tenants, that is, by poinding their effects.

This form gave place to the infeftment of annuity; that to the annualrent right; and the annualrent right to the modern heritable bond, or right in security. The change from the rent-charge it would be idle to trace here; and the other alterations naturally arose from those causes which have already been taken notice of.

The annualrent right contained originally a power of redemption in favour of the debtor, by which he was entitled to repay the debt, and redeem the estate: But unless the debtor chose to get free of the burden by redeeming the estate, the creditor had no way of recovering payment. Afterwards a clause of requisition came to be added, by which the creditor was enabled to demand payment of the debt. This requisition required particular forms and ceremonies; and it often happened, that by some omission or trifling irregularity, the whole procedure was overturned. In order to avoid this, and as there was now, in consequence of the change in religious opinions, no occasion for concealing the nature of the transaction, a common personal bond was introduced into the form of the annualrent right, by which the debtor was bound, from the first, in payment of the debt.

The effect of the right, as it stood after this change, was to constitute a personal obligation on the debtor for payment of the debt; but still the heritable security extended no further than to the interest of the debt.

It soon happened, however, that securities were given for both principal and interest ; and whenever those two securities came in

competition, the annualrent right, though preferable, drew nothing more from the estate than the mere interest of the debt, while the residue of the rents was carried off by those heritable creditors who held rights securing payment of the principal sums, as well as of the interest. These consequences proved fatal to the annualrent right; and, from the time that this new heritable bond (by which a security was given for the principal sum, as well as for the interest) came into use, the annualrent right began to disappear, and has now given place to the modern heritable bond.

This bond contains a personal obligation, binding the debtor and his heirs in payment of the money; and it gives warrant for infefting the creditor, not only in an annualrent out of the lands, corresponding to the legal interest of the debt, but in the lands themselves, in security of the principal sum, interest and penalty.

In treating of this subject, I shall follow the same plan which has been followed in the preceding section, considering the deed in its constitution, transmission and extinction; giving, thus, not only the common form of the heritable bond, with the variations which occur in practice, and the changes arising from

peculiarities in the nature and object of the deed, but also those dispositions in security which enable the creditor, in certain situations, and under certain conditions, to dispose of the estate, with the securities constituted by absolute dispositions and back-bonds.

1. Constitution of the Heritable Bond.

The heritable bond consists of the following clauses.

1. A narrative, acknowledging the receipt of the money.

2. A personal obligation for repayment of the money against a certain term, with interest, and under a penalty.

3. An obligation to infeft the creditor in an annualrent corresponding to the legal interest of the debt, and payable out of the lands; and to infeft him in the lands themselves, in security of the debt, principal, interest and penalties, to be held a me vel de me: The infeftment of annualrent, in both cases, blench; the infeftment of property in security blench of the debtor, or of the debtor's superior, by the same tenure that the debtor holds.