arises from the near relationship, that such witness both knew and approved of the contents of the deed, though he was only an instrumentary witness, and not a party to it.1 It is of course essential also that the party approving shall be of full capacity. Where the act of approbation is itself invalid, it cannot be pleaded in supplement of defects in the original deed. Thus, there can be no homologation on the part of an idiot. Nor are acts, which are beyond the legal power of the parties performing them, available to found the plea of homologation.3 Nor will acts done in minority be reckoned. Moreover, the power of homologation, competent after majority, may be stopped by creditors rendering the subject litigious. And a married woman is incapable, by herself alone, and without the consent of her husband, of homologating an informal or defective deed which she had granted previously to her marriage. The consent given by her, in the act of homologation, is as invalid and ineffectual as that in the deed homologated. On this principle, a bond granted by a female minor was held not homologated, by a subsequent recognition of it in her antenuptial contract of marriage, entered into while she was still in minority. Being still a minor, she was incapable by herself of homologating. It might be doubted whether her husband, at the time she entered into the marriage-contract, had any title to challenge; and there was no evidence of homologation on his part after the marriage.7

The approbatory acts on which homologation is pleaded must be clear and express-bearing no reasonable construction other than that they were performed by the party, from his approbation of the deed homologated; for no man is in dubio presumed to have the intention of binding himself. Thus, where an heir of entail had granted a lease, which was reducible as in contravention of the entail, the mere receipt of the rents, payable under the lease, was found not to bar the next heir of entail from reducing the lease. He ought, however, as a measure of prudence, and supposing him to be aware that the right of challenge exists, to insert in the rent-receipts a reservation of his right of reduction of the lease. This, though apparently not absolutely necessary, was done in the case of Malcolm. Again, deeds which parties are under obligation by law to grant,-such as charters to the heirs or singular successors of vassals, granted by superiors in obedience to a charge,-infer no homologation of the right of him at whose suit the charge is given.10 And the act inferring approval, if traceable to a powerful influence over the party, operating to take from the act the character of free consent, will not receive effect. Hence the subscription by an heir, as instrumentary

1 Davidson, 15th July 1714, M. 5652; Johnston, Feb. 1725, M. 5657.

2 Morton, 11th Feb. 1813, F. C.

3 Stein's assignees, 2d June 1829, 7 Sh. 686; as reversed, 23d Feb. 1831, 5 Wil. & Sh. 47.

+ Brodie, 6th July 1827, 5 Sh. 900.

5 Harkness, 20th June 1833, 11 Sh. 760.

6 Erskine, iii. 3. 47.

7 Rose, 20th Nov. 1821, 1 Sh. 154.

8 Erskine, iii. 3. 48.

9 Malcolm, 19th June 1823, 2 Sh. 410.

10 Dunbar, 20th Dec. 1662, M. 6715.

EFFECT OF
HOMOLOGATION.

EFFECT OF
ADOPTION.

witness to a deed of his ancestor on deathbed, is presumed to have proceeded not from his approbation of the contents, though he should be supposed to know them, but from the authority and influence which the granter had over him, and his fear of offending. Therefore such subscription does not infer homologation. But when a party accepted the office of trustee under his father's settlement, and took payment of a small legacy thereby bequeathed to him; he was held to have homologated the settlement, so as to be barred from claiming legitim in opposition to its provisions.2

3

We have now to consider the legal operation of homologation. There is a deed or obligation existing, though open to reduction or challenge, and the homologation has a retroactive effect, making it good from the first. Such deed will have the same effect against the party homologating it, and those who are bound by his acts, as if it had been valid from the beginning. But the homologation is simply his act, and, in relation to those who are not bound to acknowledge his acts, it can have no effect, for example, in relation to heirs of entail not representing the party otherwise than as such. The deed or obligation continues liable to exception on the part of such heirs, as much as if no homologation had taken place.

But the effect of homologation or ratification may be qualified or suspended by a protestation timeously taken. Thus, a wife, who was creditor to her husband by marriage-contract, was found not barred from claiming payment of her debts out of his estate, by having signed as consenter to his testament, though she had ratified the testament; she having done so under protestation that she reserved her rights as creditor. Approbatory acts, however, though partial, will infer homolo gation of the whole, where there is no protestation. But where there were two testamentary writings, not so framed as to constitute one and the same settlement, nor having any common or combined object-no bond of union tying them together, but which were respectively capable of being carried into effect without reference to each other, it was held competent for parties to approve of, and take interest under, the one, and at the same time object against the other. In such cases the party does not approbate and reprobate the same settlement. No one can legally do so in the case of one and the same deed. He homologates that of which he claims the benefit, with all its qualities; and only objects to a separate writing which (as alleged) it was not lawful to grant, or which was not lawfully granted; and which, were it sustained, would deprive him of a legal right otherwise competent to him.

The adoption of a deed which is in itself absolutely null operates . differently from homologation; for, whereas homologation draws back

to the date of the deed approved, adoption is truly the making of a new deed, not the confirmation of an old one. The document adopted is in itself a nullity. The adoption, no doubt, gives it force; but not retrospectively, for there is nothing to which to draw back. There is, however, nothing to prevent the adoption from being specially so conceived as to operate retrospectively, just as a new deed could be so framed and expressed. Of course, what has been said as to the state of the party's information and capacity, in reference to homologation, is equally applicable to adoption; and the act of adoption must be at least as clear and unequivocal, and as free from undue influence as that of homologation. Of course, also, there may be partial adoption, even more easily than partial homologation.

There is a case of homologation or adoption, in respect to which I think the present a good opportunity to offer a suggestion. When a person of unsound mind is placed under judicial curatory, the rule of the Court is to realize all outstanding stocks and shares in trading companies belonging to him, and to have the proceeds invested either in the Government funds, or in heritable security. The investment thereof can make no difference on the right of succession to such person, if he remains of unsound mind till his death; because such investment is the act of the curator only, under order of the Court, not of the party; and the curator cannot regulate or affect the legal rights of the party's heirs and successors. But, supposing the party to convalesce, he may take over or adopt the investments made for him, whereby a material difference may be made upon the rights of his representatives; the whole of his estate, in fact, may thus become descendible to his heirs in heritage, to the exclusion of his next of kin, or heirs in moveables; the latter being the heirs who would have succeeded, in case no change of investment had taken place. It will, therefore, in general, be the duty of a legal adviser to point out this result to the party, so that, at all events, he may not be left in ignorance of the altered rights of his heirs, arising from the new mode of investing his estate.

CHAPTER II.

I Now pass to the consideration of the plea of Rei Interventus, as RE: interexcluding the reduction of, or objection to, a deed or writing.

So long as both parties to any transaction have not finally bound themselves, it is a general rule that each has locus pœnitentiæ; it is free and open to either to resile.1 But if there has been rei interventus, that is, if there have been proceedings not unimportant on the one side, known 1 Erskine, iii. 2. 3; Montgomerie, 28th Jan. 1663, M. 8411.

VENTUS.

to and permitted by the other to take place, on the faith of the agreement, as if it were concluded; and if these are unequivocally referable to the agreement, and productive of alteration of circumstances, or of loss or inconvenience, in the event of the agreement not being carried through, a personal exception is created against the party permitting them, who no longer has locus pænitentiæ. The transaction must be carried out.1

It is not necessary that the party, against whom the plea is directed, shall derive benefit from what is done. It is enough when, by his conduct, he has placed the other party in circumstances whereby such other party's interest would suffer, if the agreement were not implemented. On this principle, an improbative cautionary obligation was found binding, because on the faith of it a party had been released, after having been apprehended as in meditatione fuga.3

3

In Hamilton's case, a bond of annuity had been granted by three parties, jointly and severally, but, owing to a blunder in completing the testing clause, the bond was improbative as to two of them. One of these two had died; the other had been present when the advance of the price of the annuity was made in exchange for the bond, if indeed the money had not actually been received through his hands; and he had acted as agent of the debtor in paying several years' annuities due under the bond. In these circumstances, the plea of rei interventus was held to preclude him from founding on the technical defect in the bond; although it did not appear that the same exception was equally applicable to the other party, as to whom also the bond was improbative. On the same principle, a bond in the English form (which was improbative by the law of Scotland), being executed in Scotland by several Scotch obligants, one of whom was the principal debtor, and the others truly cautioners, though nominally principals, was held binding on the cautioners; they having signed and issued the bond to the lender, as binding on them, and he having advanced the amount of the loan on the faith of the bond. In the same case, it had previously been held that the cautioners' acknowledgment of their subscriptions as genuine did not, per se, obviate the objection to the deed as improbative under the Statute of 1681, cap. 5.5 This case suggests that, in reference to personal obligations and contracts, parties domiciled in Scotland should always be bound by deeds executed and attested in the Scotch form, and parties domiciled in England by deeds in the English form. In some cases, indeed, it may be expedient to have both forms observed as to all the obligants, whether Scotch or English.

And here, with reference to the execution of obligations by parties domiciled in England, it may be stated, on the authority of the opinion of eminent English counsel, that a personal obligation executed by an

1 Bell's Principles, s. 26.

2 Hamilton, 22d Jan. 1836, 14 Sh. 323; affirmed 12th Feb. 1838, 3 Sh. & M L. 127. 3 Dunmore Coal Company, 1st Feb. 1811, F. C.

4 Church of England Fire and Life Assurance Co., 17th July 1857, 19 D. 1079.

5 Same party, 12th Feb. 1857, 19 D.

414.

Englishman under seal, and attested according to the English form, would have this advantage over a similar obligation not under seal, that, in the event of the death of the granter, the holder of the obligation under seal would be what is called a specialty creditor,' and, as such, would be entitled to a preference oversimple contract creditors' in the distribution of the deceased's 'legal assets,' as contradistinguished from his 'equitable assets.' There would, I understand, be no preference in virtue of the seal and English attestation in suing the obligant whilst living, or in a ranking of the creditors on his estate, if he should become bankrupt while living. The advantage arises only in case of proceedings having to be taken after the obligant's death. The effects falling under the description of legal assets,' I understand, usually form a large portion of a deceased debtor's estate.

It may be added, that in preparing obligations in favour of Scotch parties, where one or more of the obligants may happen to be domiciled in England, I think it advisable to get each obligant both to subscribe and to affix his seal to the deed, in presence of two witnesses, making the witnesses subscribe, in the first place, according to the usual Scotch form, that is, set down their Christian names and surnames, with the word 'witness' added. The English docquet or certificate is then added, which runs in these words:-'Signed, sealed, and delivered by the above-named A. B. (party), in the presence of C. D., etc. (witnesses),' and the witnesses write their Christian names, surnames, and designations or descriptions under that docquet, just as if they had not subscribed as witnesses in the Scotch form. In that way the deed obtains a complete Scotch and a complete English execution, each independent of the other. The testing clause, as I shall afterwards notice, is in the usual Scotch form, with the addition that it notices the fact of the sealing.

I have called your attention to the case of the above class of deeds, because we already have, and we may expect in future to have, more and more, occasion to superintend the completion of deeds to which Englishmen as well as Scotchmen are parties. But my main object in doing so is to make you aware that, in certain cases, sealing, with the English attestation, will confer advantages. It need scarcely be added that the utmost caution must be observed in reference to the execution of deeds in the English form, and that it may very often be indispensable in such cases to obtain the assistance of English law advisers.

There is a recent case in which a contract to feu lands, in itself incomplete, was held to be a binding agreement by rei interventus, and the feuar was found not entitled to resile. The feuar had been tenant of a large portion of the subjects which he feued, and he endeavoured to ascribe his possession, and his acts of interference with the property, to his lease; but he had built a porter's lodge, made a new and expensive approach to a mansion-house situated on the lands, altered a public road, and done other acts which, the Court held, could not be ascribed to a right of mere tenancy. The extent of the subject feued, the rate of