minor.1 The decisions suggest the importance of preserving evidence of the beneficial employment of money advanced on account of minors. When tutors or curators testamentary (who are not subject to the provisions of the Pupils Protection Act of 1849) desire to obtain special powers, they can apply to the Junior Lord Ordinary, under the Court of Session Act, as they formerly could apply to the Court by summary petition. The petition will be remitted to a competent party for his report, and further disposed of as provided by the Act. When special power is wanted by a factor loco tutoris, or other party, subject to the provisions of the Pupils Protection Act, he can either apply to the Lord Ordinary, by summary petition, when the matter will be disposed of as in the case of the petition from a testamentary tutor; or, he can lodge with the Accountant of the Court of Session (appointed in terms of sect. 9 of the Pupils Protection Act) a statement of what is wanted, with the particular reasons calling for the Court's interposition. On this the Accountant gives his opinion, which is brought, with the statement or application, before the Lord Ordinary, and further disposed of, as in the other cases above specified. Formerly, the Court alone could grant the special powers; but that rule is now altered by the Court of Session Act. As regards obtaining special powers, however, tutors or curators testamentary are not in so favourable a position as other tutors. They find no caution; they have the highest powers known to the common law as belonging to tutors; and the Court have indicated that testamentary tutors ought to be left to exercise their large powers on their own responsibility, except in matters of great necessity. Other guardians are, in most instances, officers of Court. They all find caution before entering on their office; and the Court, to whose orders they are at all times amenable in a summary way, are less jealous of intrusting extraordinary powers to them than to tutors testamentary, over whom, when they get their powers, the Court have no direct control. But, even in the case of tutors and curators not testamentary, the Court will always require a strong and clear case before granting special powers. And, except as enlarged by the Court, or by Statute, the powers of tutors and curators are often found inadequate to the beneficial management of their ward's estate. They cannot exceed their powers, without the risk of question and claims on the part of their ward, after he attains majority; or, in case of his death, at the instance of the heirs succeeding to his estate. The latter difficulty may be met, in a case of urgency, and where confidence is reposed in the guardians, by an agreement to ratify their general management on the part of the nearest relations, as far as they shall be interested. But the power of objection on the part of the ward does not seem excluded, except when special powers are given by the Court under the sanction of the Pupils Protection Act, which has certainly conferred very great benefits on parties under its scope.

1 Anderson, 15th Nov. 1832, 11 Sh. 10; Harkness, 20th June 1833, 11 Sh. 760.

2 20 & 21 Vict. c. 56, s. 4.
3 Ss. 5, 6.

CHAPTER II.

I HAVE next to direct your attention to the incapacity arising UNSOUNDNESS from unsoundness of mind.

In cases of insanity or idiocy, the party may be cognosced before the Judge Ordinary of the place of his residence, and a jury of fifteen men, summoned in virtue of a short writ (technically called a brieve) issued from the Chancery in the Queen's name, directed to the Judge Ordinary, desiring him to convene a jury for making the necessary inquiries, and to report or return their answer or verdict. Where these proceedings take place, the party and his affairs are placed under the charge of a tutor or guardian. But, without the formal process of cognoscing, the affairs of a person incapacitated through insanity or idiocy may be put, by the Court of Session, summarily under guardianship, on an application to the Court in the form of petition, accompanied by medical certificates of his mental incapacity. In circumstances where such proceedings are competent, the party is wholly incapacitated from granting deeds (except on re-convalescence, or during lucid intervals); and, subject to that exception, all deeds on his behalf require to be granted by his tutor or judicial factor, precisely as in the case of tutor and pupil.

In cases of cognoscing, the jury who are to try the question of the party's incapacity are required, by the Act 1475, cap. 66, to ascertain and fix the date as at which the incapacity commenced; the Act declaring of no avail all alienations made by the party after such date, as well as those made after serving the brieve, that is, after they have tried, and returned their verdict upon, the question of incapacity. This verdict, however, to which the party cognosced is the only contradictor, only raises a presumption against deeds granted subsequently to the date so fixed by the jury. Before such deeds

can be actually set aside, an action of reduction must be brought against the parties interested under the deeds, in order to give them an opportunity of offering any competent defence. The verdict of the jury merely reverses the legal presumption, making it against, as in an ordinary case it would be in favour of, the deed.1

1 Ivory's Erskine, p. 200, Note 241; Towart, 16th May 1817, 5 Dow's App. 231.

OF MIND.

In cases of summary application to the Court, there is no cognition before a jury. Two medical men are required to certify, on soul and conscience, that the party is unfit; but, as in cognoscing it is indispensable that the party shall be personally before the jury, so in the case of summary application, the petition for appointment of a curator or factor has to be served on the party personally, in presence of the Sheriff or his Substitute. This proceeding--that is, the appointment on summary application-has no retrospective effect as affecting previous deeds. When, however, there are voidable deeds, previously granted, they can be set aside by action of reduction, equally as in a case of cognoscing. But it is not necessary, in order to set aside a deed, to prove absolute incapacity in the granter as at the time of granting the deed. There is a great variety of circumstances which, of themselves or in combination, may be sufficient in certain cases to infer reduction of a deed. The want of capacity may be general, amounting to such a state of unsoundness of mind as to disqualify from giving a clear and distinct consent, whereupon reduction will follow of course.2 Or it may have reference only to a particular deed. Thus, the Court have reduced a testamentary deed of a complicated nature, made by a person who was generally thought by the Judges to be of sufficient disposing mind to have made a simple deed.3 In Watson's case, the maker of a deed which operated the settlement of her affairs, and which excluded power of revocation, was found by a jury on a first trial to be in such a state of mind as to be capable of disposing of her estate and effects; but the Court thought inquiry necessary as to her capacity to understand and make the particular deed under reduction; and, upon a second trial, the jury found that she was not in such a state of mind as to enable her to judge correctly with regard to the effect of that particular deed, as excluding her power of revocation, and that the deed was not her free and voluntary act. The deed was accordingly reduced. This subject is adverted to by the Lord Justice-Clerk Inglis, in the case of Morrison.* Moreover, where there is evidence of facility and lesion, it is not always necessary to prove moral fraud, or that any specific acts of circumvention shall be established. Generally speaking, facility and lesion are attended with both moral fraud and circumvention. But it is enough if, in the whole circumstances of the party granting the deed, there was used persuasion which he was not in a condition to resist.5 On the other hand, if the primary and essential purpose of the deed be well understood by the granter, and in conformity with his known will, want of intelligence on his part as to a secondary purpose was found, in a special case, not to authorize the reduction of the whole deed. There, a testamentary writing was sustained, by which a party in very advanced 1 Scott, 7th Feb. 1855, 17 D. 362.

2 Christie, 13th Feb. 1700, M. 6283. 3 Gillespie, 11th Feb. 1817, F. C.; see also Watson, 18th Nov. 1825, 4 Sh. 200; affirmed, 20th June 1827, 2 Wil. & Sh. 648.

4 Morrison, 27th Feb. 1862, 24 D. 625.

5 Clunie, 14th Nov. 1854, 17 D. 15.

6 Scott, 17th Nov. 1789, M. 4964; affirmed 23d Feb. 1791, 3 Paton, 683.

age (he died at ninety-five), who had had repeated attacks of palsy, and whose memory had become a good deal impaired, conveyed his estate to his grandson by a natural daughter, and to the grandson's heirs and assignees, thus creating a substitution in favour of the father and other relatives of the grandson, in preference to the relatives of the testator himself. In this case, it was proved that the party did not clearly understand the legal effect of the conveyance to his grandson's heirs and assignees; but there was proof that it was his enixa voluntas to favour the grandson personally; and the Court could not have reduced the deed without frustrating that main and leading object. It appeared also that the deed had been executed several years before the testator's death, before the shocks of palsy, and before the impaired memory showed itself. But the case shows with what anxiety one ought to proceed in matters connected with testamentary writings; and that even as to the substitution of heirs, failing the institute (or party primarily preferred), it ought to be made clear that the testator is fully aware of the legal effect of the document he is to sign.

Questions on which a party's mental incapacity bears are very delicate, and difficult to deal with in professional practice. But beyond the general statements, and the references to authorities before given, it seems out of place for me to enter into this large subject. And it is very difficult to suggest any rules of conduct in regard to cases of the nature we are now considering, which all require to be dealt with according to their special circumstances. The cases, however, contain some instructive passages, and authorize one or two suggestions, which I think it right to bring before you.

In Clunie's case, the Lord Justice-Clerk Hope, when delivering judgment, refusing a new trial, gave the following view of the general nature of the grounds on which reduction of a particular deed or transaction, inter vivos, may be sought. His Lordship says, the issue sent to the Jury 'is ' intended to embrace any case in which, where a person has become easily ' imposed upon, or ready to yield his assent, whether from old age or actual 'disease, or the effects of the same upon the nerves,'' another person leads him on into a highly disadvantageous bargain, to his own. benefit, or 'that of the party for whom he is acting, and who adopts the same. The 'actual mode or particular acts of circumvention may not be discoverable or easily proved. But the result may demonstrate that the party was 'really circumvented in the sense of the issue, when he was led into the 'transaction under challenge; and then, the nature of that transaction, 'the mode in which, and the party by whom, it was carried through, and 'the object apparent on the face of it,' 'all bear on the jury question, I whether the party had been circumvented. Under this issue, you I cannot separate, as distinct and really distinguishable matters, the state of the man's mind and nerves from the way the transaction was 'managed. This is peculiarly the case in extreme old age, in which, ' though the mind may be entire, firmness to resist even persuasion may

be wanting to such a degree as to make undue influence amount to all the circumvention which in that case is required.'

In Gillespie's case, where a complicated deed of settlement was under reduction, it was observed on the Bench as objectionable that the draft was prepared, extended, and signed all on one day; whereas it should have been left with the party, who was very infirm, for his deliberate perusal. Any undue haste, in a matter so solemn as the settlement of a person's worldly affairs, ought to be anxiously avoided, and the utmost care should be taken to place beyond all doubt that the parties have time to understand, and that they do understand, the import of their deeds, and approve of the deeds before they subscribe. Where there is doubt on the point of capacity, it is best to let matters stand, and do nothing; and it may often be advisable for the agent to take the medical attendant along with him, and not to allow the execution of the deed unless the party's capacity is duly certified. The medical man should, where it can be so arranged, be made one of the witnesses to the party's signature in such cases, and the res gestæ at the time of the execution should be such as to show that the party then understands the purport of the deed he is granting.

Moreover, in all cases of transactions or bargains between parties having opposite interests, it ought to be considered indispensable that they have separate agents. In Clunie's case, where the transaction set aside had been conducted by an agent of the highest respectability, this rule had not been observed; on which Lord Cockburn remarks, 'the 'party had lost his capacity of reasoning. . . . Being in this condition, he ' is going to enter into a bilateral contract, and he does enter into it, and 'makes a ruinous bargain,--for the lesion is not to be disputed. Well, 'who protects him in making this bargain? By whose intellect is the 'weakness of his own intellect protected? Why, by the agent of the 'party dealing with him, and by him alone.'

The rule, that in such cases there ought to be separate agents, is so absolute, that no desire of the parties themselves should be considered as an authority to act for both; for their safety, as well as on account of the agents themselves, this ought to be avoided; and each party should be represented by a separate agent. In certain circumstances, indeed, it may be necessary for one, who is the ordinary adviser of both of the parties about to enter into a transaction, to decline to represent either.

The guardians or judicial factors of persons incapacitated by unsoundness of mind are in all cases subject to the provisions of the Pupils Protection Act; and generally their powers at common law, and the manner of obtaining extension thereof, are similar to those of tutors or factors acting under judicial appointment. The cases in which special powers are applied for by the guardians of lunatics are very frequent and very various in their character. I will not attempt any enumeration or classification of them, as they bear strong resemblance to those occurring in connexion with the guardians of minors; and, like