that the Lords do not confider it as coming under the act 1617, and, confequently, that it is extinguished by a discharge and renunciation, even without being recorded *. Writers, however, have perfifted both in inferting procuratories of refignation in the renunciation of heritable bonds, and in recording them in terms of the act 1617; for which purpose, the clause of registration specially points out that record. The registration is undoubtedly expedient, if it is not neceffary. Like the charge and discharge of an account, the infeftment and the renunciation meet one another, and prevent a number of doubts and inquiries which might otherwife give purchasers uneafinefs; and the diftinction, though laid down by fome late writers, and fupported by a fingle decifion, is by no means eftablished. So far from it, that in a case †, where a discharge of a part of an heritable bond was taken back by the creditor from the debtor, the whole debt was in confequence found to fubfift. Had the discharge been registered, there was an end of the matter; and in that, and feveral consecutive decifions, it is taken for granted, that a perfonal discharge does not extinguish an infeftment without registration. The practical rule, therefore, is, never to omit the recording of these deeds. Conveyancers, here again, as in the wadfet, ftand upon the old maxim, that every infeftment must be extinguished by refignation. In the tranf miffion of land property, this is no doubt an axiom; but Mr Erfkine is not of this opinion in the cafe of redeemable rights: As the debtor in a right of annualrent (fays he) continues proprietor, notwithstanding the impignoration of the rents to the creditor, it is not neceffary, nor indeed congruous, for the creditor to make over, or furrender, the lands, after his right is extinguished by payment; 'for refignation cannot be made but by him who is at the time vefted with the property of the lands to be refigned.' Though the pofition itself may be right, the reafon affigned is certainly not fo folid. It is quite oppofite to the cafe of Campbell, juft quoted; for, July 8. 1680, Ranken. † June 19. 1745, Campbell. if if the creditor's right or title in the land vanishes, ipfo facto, by the receipt of the money, the return of the difcharge would not have availed the creditor, and his debt, quoad the land, behoved to have been held to be paid. It is contrary to many other inftances we could mention; but it is enough to fay, that it is contrary to the whole fyftem of the forms we have been confidering, all of which proceed upon the idea, that the creditor's right, or real hold of the lands, remain in him until it is extinguished or conveyed by his own decu. This we hold to be more especially the case when the annualrent, or debt, is held of the debtor's fuperior; for then it is in a manner out of his power altogether. It is a property, or eftate, which has been separated from him, and, therefore, ought to be formally restored. So far, however, has practice yielded, that, although the procuratory of refignation be continued, it is not executed, but fimply put upon record. We shall conclude this long difcuffion of redeemable rights with Lord Stair's advice concerning them, which, as it regards our immediate practice, deferves attention. These who purchase wadsets, • infeftments of annualrent, or property, for fecurity of fums, run 'the hazard of fatisfaction and payment of these fums, by intromif'fion or otherwise, wherein there is little inconvenience; for no man 'fhould purchase a redeemable right without confent of the reverfer or debtor *. It is evident, from what has been juft faid, that the records give little or no fecurity in thefe cafes; and, therefore, the confent of the debtor, exprefsly taken, is the best method of excluding all after exceptions to the debt. *Page 213. Poinding THE Poinding the Ground. HE creditor having got complete heritable fecurity on the lands of the debtor for his money, we are now to examine into the right which he has to recover the fums annually due to him, together with the forms and mode of effectuating it prescribed by law; which will lead us into an investigation of the origin, and the different circumstances attending the right called by our lawyers debitum fundi. We must here, again, beg attention to fome of the most material circumstances attending the original feudal contract. When the vasfal failed in the performance of the fervices due to his lord, the confequence was, a forfeiture of his feu: The conditions inductive of the grant not having been performed, it fell to the ground, and matters returned to their former fituation. Thefe duties often increased with the wants, fituations, or neceffities of the lords; and, in military tenures, the performance of the tenant was difficult, and his failure often fatal to his right. The defence of the kingdom depended upon the obedience and alacrity of the military vaffals, în fulfilling the conditions of their tenure; and, for that reason, knightfervice in England, and ward-holding in Scotland, long retained the exactness and severity incident to the original nature of their warlike inftitution. In other tenures by different fervices, fuch as foccage and feu, the defence of the nation was not concerned. The immediate interest of the lord feemed to be the only thing in view; and, therefore, an absolute forfeiture appeared too fevere a confequence of the tenant's failure. The dues of the lords being fixed and cer tain, tain, were capable of receiving an adequate recompence; or, in other words, he could fuffer no damage but the delay. Even that delay might be valued; and, therefore, the forfeiture was foftened into a feizure of the poffeffion of the lands, until fatisfaction fhould be made by the tenant. A seizure of a man's whole eftate behoved effectually to prevent him from making payment, or performance of his fervices and duties, unless he had other lands fufficient to enable him to do fo; and, therefore, this exclufion from his property went out of ufe, as deftructive of the purposes for which it was allowed. In place of the land itself, a feizure of the cattle, and other moveables, was adopted; and, if the duties or fervices were perfonal, this method foon diftreffed the tenant or vaffal into compliance. Though the claim lay in money, ftill it proved effectual; for rents were low, and the cattle and moveables were always fufficient to discharge the failure. The military tenures in the South, came at an early period, to be converted into money, or fervices certain. Thus changed, they were termed efcuage; and, therefore, being reduceable to a certainty, or, as we say, to a liquid demand, diftrefs naturally became the univerfal remedy in the hands of the lords. The English lawyers tell us, that this diftrefs was adopted in imitation of the Roman law, which directed the moveables of the debtor to be firft feized and fold, before the land could be touched. The right of the lord, however, did not properly affect the moveables; it affected the lands themselves; and this gives us the reafon why thefe goods did not, though taken, become the property of the lord, but only remained with him as pledges, to force or diftrefs the tenant into performance of his duty. In thus accepting a power of diftraining for their dues, the lords did not exchange or renounce the real right of re-entry to the lands, in the cafe of obftinate refufal, continued failure, or delinquency, upon the part of the vaffal. On thefe great occurrences, the right of the lord to the lands, or to the dominium utile, revived; and hence there remained with us non-entry, efcheat, recognition, and the VOL. II. other 3 D other burdens incident to feudal property. The diftrefs, confequently, was practifed only in fmaller degrees of failure, fuch as the nonperformance of duties and fervices of a fixed nature. It was not accepted in lieu of any claims upon the land but fuch as the moveables were able to discharge; and, where no moveables were to be found, there the fuperior was entitled to re-enter upon the land itself. These ufages particularly applied to foccage tenants in England, and to feuholders in Scotland; for the lords, as Blackftone juftly tells us, 'foon ' found it neceffary to commit part of their lands to inferior tenants, obliging them to such return in fervice, corns, cattle, or money, as might enable the chief feuditorys to attend their military duties ' without distractions; which returns, or reditus, were the original ' of rents.' Grants of this kind, though in the feudal form, refembled, in every other circumftance, the emphyteufis of the Roman law. The perpetual nature of this right made it pafs not only to the heirs of the tenant, but to his difponees, or fingular fucceffors. The emphyteutic grant, therefore, was confidered neither in the right of an abfolute fale, or a leafe, but as a right diftinct in its nature and qualities from both. There was one condition inherent in the nature of this contract, that, unless the tenant made payment of the rent, the right fell to the ground; and the granter of it might have re-entered, and ejected the tenant, although the contract contained no condition of that kind. The space in which this forfeiture took place was limited to three years; and what appears fingular is, that the re-entry of the original proprietor is allowed to be brevi manu. It will be recollected, that the earlieft feudal grants were temporary; and that it was only in courfe of time they grew into perpetuities. When military services were changed for money and produce, the feudal grant came to be exactly the emphyteufis of the Romans; and, accordingly, all its principles were adopted into the conftruction of that right. The dominium directum et utile was acknowledged; and, confequently, the tenant had a feparate and di stinct |