PART I. CHAPTER I. 1 S. 66. 2 Sh. App. 212. 4 S. 200; and 2 Wil. & Sh. App. 648. capable to judge of the import and effect of the deed, and to exercise an independent will in regard to its execution. Cases of this description are best studied and understood in examples: In Berry v. Anderson, 13th June 1821, affirmed 26th May 1824, a promissory note and heritable security were reduced in circumstances indicating facility on the part of the granter, who had executed them without requiring any detail of the alleged debt, and while various other parties, who were primarily liable, were not discussed. Although a party is legally capable of contracting, yet, if it shall appear that he was naturally of weak intellect and facile disposition, it will be incumbent upon the holder of the deed to prove that it was fully understood by the granter. From the failure of such proof, a settlement of heritage 1 Sh. App. 472. was reduced in the case of White v. Ballantyne, 20th June 1823, reversing the judgment of the Court of Session, which is not reported; and to this the subsequent case of Watson v. Noble's Trustees, 18th November 1825, affirmed 29th June 1827, is exactly analogous. Here a deed of settlement, executed by a party capable of disposing of her estate, was reduced, upon the ground that, at the time of executing it, she was in a weak and debilitated state of mind, and unable to judge correctly of its effect in depriving herself of all power to alter; and the deed not being her free and voluntary act, although no undue influence had been used to obtain it. This case, you will observe, is instructive: we see a party capable of disposing of her estate, and whose settlement of it would have been sustained if made in a simple form easily intelligible. On the other hand, there was no proof that the party founding on the deed had used undue means to obtain it; and yet it was reduced upon evidence that, at the time of executing the deed, her mind was too weak to comprehend the 2 Sh. App. 207. effect of its provisions. In the case of M'Neil v. Moir, 21st May 1824, a transaction with an old man nearly eighty years of age, grossly unequal as regarded his interest, and of which he did not understand the effect, was reduced on the ground of facility; and to the same effect is M'Diarmid v. M'Diarmid, 17th May 1826, where the deed of a man upwards of eighty years of age, renouncing a valuable succession without any adequate consideration, was reduced.* 4 S. 583; affd. 3 Wil. & Sh. App. 37. 17 D. 16. * Reference may also be made to the case of Clunie v. Stirling, 14th November 1854. There a transaction-by which a gentleman, who had been brought by attacks of paralysis into such a state of nervous debility as prevented him from taking any serious or deliberate views on matters of business, had purchased an annuity at a disadvantageous price-had been reduced, the jury having found for the pursuer upon the following issue:-" Whether, at the date of the said bond of annuity, the said James Oliphant Clunie was weak and "facile in his mind, and easily imposed upon; and whether the defender by himself, or by "another or others, taking advantage of the said James Oliphant Clunie's weakness and 'facility, procured the said transaction through circumvention, to the lesion of the said "James Oliphant Clunie ?" The defender attempted to set the verdict aside as contrary to evidence, contending that it was necessary to find "some positive fact proved, which amounts "in itself to a distinct act or piece of circumvention-some trick-some particular practising PART I. CHAPTER I. ING FROM Hume, 684. This objection is applicable to all deeds granted under such morbid influences as divest the mind of its capacity to deliberate and to form a sound judgment of that which the party professes to do or say. It has, accordingly, been found a relevant objection to the declaration of a female, that when it was emitted she was suffering from an hyste- 1 Syme's Just. rical attack, and unfit for examination; but the objection failed in Rep. 113; Shaw's Just. the proof; Elder, 19th February 1827. Rep. 178. There is no doubt that Intoxication, when of such an extent as to INCAPACITY TO deprive the party for the time of the direction of his reason, renders CONTRACT ARIShim incapable of contracting. It is just the same, as remarked by an INTOXICATION. English Judge, as if the party wrote his name in his sleep in a state Byles on Bills, of somnambulism. So, in Jardine v. Elliot, 9th June 1803, the sale of an entire stock of sheep, at a certain price per head for all that could rise and run and were not diseased, was reduced, although both parties were intoxicated, and there was no proof that the price was much below the value, the transaction being really a drunken freak, and the serious and mature consent suitable to such a transaction not having been interposed. Again, in Duncan, 18th July 1839, Macf. Jury Rep. missives of sale of a land estate were reduced, upon evidence that the purchaser, when he subscribed them, was in a state of imbecility from intoxication. But this is a plea upon which, especially when adduced by the party himself, the evidence must be clear; and it will not be sufficient to annul the deed, that there has been such a degree of excess as to cloud or darken the understanding, if it was not entirely obscured; Lord Haltoun v. Earl of Northesk, 29th July 1672. Here it M. 13,384. was inferred that the party who sought for reduction on account of his own drunkenness, had been sufficiently collected to know what he was doing, since he had inserted the date and witnesses with his own hand, and made such averments, as to the absence of witnesses and otherwise at the execution, as shewed a recollection of what had occurred.* 278. In order to protect parties of a facile or profuse disposition from INTERDICTION. the effects of their own improvidence, the Law has provided the remedy of INTERDICTION. This is a restraint, imposed either voluntarily or by the sentence of a judge-which is a proceeding, however, "on the mind of the party at a particular time-some details, in short, as to the acts and "practices which the general term circumvention includes; and that if one cannot lay one's "hand on distinct instances, detected and proved, of particular acts and practices amounting "to circumvention, there is no ground for supporting the verdict." The Court, however, refused to grant a new trial, holding that, where there is evidence of facility and lesion, it is not necessary that anything amounting to actual circumvention should be proved; but it is enough to warrant a verdict upon the above issue, if, in the circumstances of the party granting the deed, there was used persuasion which, acting upon a mind facile and nervously anxious from disease, he was not in a condition to resist. * In Johnston v. Clark, 19th December 1854, 17 D. 228, there will be found the form of issues approved of in the reduction of a deed on the ground of intoxication. PART I. CHAPTER I. M. 7142. M. 3095. M. 7149. 5. S. 128. proper only to the nobile officium of the Supreme Court. Where the restraint is voluntarily undertaken, the party executes a deed termed a bond of interdiction, whereby he nominates certain persons to act as interdictors, and engages not to sell or otherwise affect his property without their advice. According to the form usually adopted and given in the Juridical Society's System of Styles, the bond of interdiction applies to the moveable property of the granter as well as to his heritable estate. But this has long ceased to be the legal effect of interdiction, which affects the heritable estate alone, and the interdicted person retains full power to dispose of his personal property, either for onerous causes, or gratuitously; Davidson v. Town of Edinburgh, 22d January 1684. Here a party, who had been interdicted as a simple youth, was found not to need the consent of his interdictors to uplift a sum in a personal bond. At the same time, the heritable estate is so effectually secured against the acts of the interdicted person, when unauthorized by his legal guardians, that his personal obligations, although binding as such, cannot be made the ground of diligence, or of claim in any shape, against his heritable property. The bond or sentence of interdiction must be published and registered; and it has not, like the verdict of a jury in the cognition of an insane person, a retrospective effect, but is ineffectual until registration, which is the legal notice to the lieges, as fixed by the Act 1581, cap. 119. The consent of the interdictors is not essential to validate the deeds of the interdicted person, as is that of curators to the deeds of a minor who has curators; and the onerous and rational contracts of the interdicted party will be sustained, although granted without the consent of his interdictors; Stewart v. Hay, 10th November 1676; A. v. B., 27th February 1672. The purpose of interdiction is to defend the party against the granting of deeds for gratuitous or inadequate considerations. But when there is an adequate and onerous cause, the deed is effectual, though not consented to by the interdictors; and this principle is exhibited in the strongest light by the case of Kyle v. Kyle, 14th December 1826, where a deed was sustained, though granted by the interdicted party in favour of one of his interdictors, the consideration of it being onerous and rational. When the interdictors do not consent, however, the party will be reponed upon evidence of lesion. But this remedy is confined to such deeds as he grants without consent of the interdictors, and all deeds which are granted with their consent are as valid and unchallengeable as those of a party labouring under no restraint or incapacity. In cases of enormous lesion through deeds signed by the interdictors, the remedy is by an action against the interdictors to indemnify the party for what he has lost by their improper consent. The interdicted person may bequeath his moveable estate; and it is INST. i. 7, 58. laid down by Erskine that he cannot either make or alter a settle ment of his heritage, either with or without the interdictor's consent; PART I. in support of which doctrine he refers to the case of Tenant v. Spreul, CHAPTER I. December 1725. But that was the case of a disposition in favour of M. 7127. the interdictor; and the doctrine does not appear to have any good foundation in reason, or to be supported by authority. On the contrary, in the only reported case which appears to bear upon this point, it is said that the Court were of opinion, that a settlement of heritage is not reducible on the ground of interdiction per se, where the interdictors consented, if the granter had such a disposing mind as to be capable of disponing it, had he had no interdictors; and that Elchies v. "Prosome thought a destination of succession would have been good with- visions to heirs, out their consent, the interdicted person being only so far restrained &c." No. 14; and 5 Br. Supp. as the words of the interdiction go; Gray v. Smith and Bogle, 8th 790; M. 10,803. November 1751. From what has been stated it appears that the single duty and responsibility of interdictors is to judge of the reasonableness and propriety of deeds by the interdicted party affecting his heritage. They have no charge or custody of person or estate, and are liable only for their own integrity and judgment, in consenting to deeds which their concurrence renders irrevocable. tutoris. The attention of the Supreme Court was directed, in the case of FACTORS loco Sommerville's factor, 6th February 1836, to the subject of the ap-14.451. pointment of persons to take charge of the estates of parties unable to manage their own affairs; and a unanimous opinion was expressed that the power of the Court to appoint such managers, who are called factors loco tutoris, rested on consuetudinary law, and had been firmly established under the Act of Sederunt, 13th February 1730, which contains regulations according to which such factors were to conduct their management, and to be held responsible. In cases of appointments of this kind, the Court is in the habit of granting to the factor extraordinary powers upon summary application, where it is shewn that such powers are necessary to prevent serious loss, or expedient in order to procure evident and positive advantage; or where the interest of third parties connected with the estate, as, for example, in the relation of superior and vassal, requires that extraordinary powers should be granted. The Act of Sederunt of 1730, now referred to, was very important, as regulating minutely the responsibilities and management of factors loco tutoris. It is now practically superseded, however, by the Act 12 & 13 Vict. cap. 51, "For the better Protec"tion of the Property of Pupils, Absent Persons, and Persons under "Mental Incapacity in Scotland." This statute contains the rules by which the conduct and proceedings of judicial guardians must be regulated. As a general rule, the Court will not appoint a female to the office PART I. CHAPTER I. 17 D. 321. Curator bonis. INCAPACITY OF INCAPACITY BY REASON OF M. 10,449. INCAPACITY OF COMPANY TO TAGE. of curatrix bonis or factrix loco tutoris, even to her own children; Galloway, 1st February 1855. Doubts formerly existed with regard to the authority of the Court, in the nominations before referred to in cases of imbecility or incapacity, whereby the charge of a party's affairs is given to another by summary process. This authority was supported, and the competency of such nominations firmly established, by a series of decisions, to which, however, it is no longer necessary to refer, inasmuch as such appointments are expressly recognised by the statute just quoted. There were formerly considerable limitations to the capability of foreigners to take by succession property in this country, and to possess feudal subjects in Scotland. It is unnecessary now to dwell upon. these, however, an ample remedy for this incapacity being provided by the Act 7 & 8 Vict. cap. 66, which declares every alien born of a British mother capable of taking real or personal estate. And by observing certain forms prescribed in this statute, aliens may obtain certificates from the Secretary of State, which will confer upon them generally the rights and capacities of natural-born British subjects.* It is proper to advert to the subject of forfeiture by attainder for high treason, whereby the convicted party forfeits to the Crown his heritable estate, both fee-simple and entailed, and also his moveable effects. This forfeiture formerly extended without qualification to the heirs of the attainted person; but by the Act 7 Anne, c. 21, § 10, it was provided that attainder should not disinherit or hurt the right of any one but the offender himself. An attainted person cannot plead his incapacity to contract in bar of his own obligations; Serra v. Earl of Carnwath, 24th December 1725. Another incapacity, very apt to be overlooked in the pressure of A MERCANTILE business, is that of a mercantile company or firm to hold heritable property. This is inconsistent with the nature of the feudal tenure ; and every title to heritage taken in the name of a company, and by consequence every grant made by a company, is inept. The practical mode of obviating the inconvenience resulting from this rule, is to take the title in the name of trustees for the company or firm. 14 D. p. 721. 1 Macq. App. p. 535. * The previous Acts relaxing the strictness of the law in regard to aliens, were 7 Anne, cap. 5, explained by 4 Geo. II., cap. 21, which latter statute enacted, that children born out of the allegiance of the Crown of Great Britain, whose fathers were natural-born subjects of Britain at the time of the birth of such children, should be held to be natural-born subjects. By 13 Geo. III., cap. 21, the same privileges were communicated to the children of fathers who, in virtue of the former statute, were to be deemed natural-born subjects, though their mothers were aliens. On this subject reference may be made to the case of Shedden v. Patrick, 11th March 1852, affirmed on appeal, where it was held that the children of natural-born subjects, who, under 4 Geo. II., cap. 21, are to be considered natural-born subjects of this kingdom, must have been legitimate from their birth, and not merely legitimated by the subsequent marriage of their parents; for to be within that Act, the child must be born to a British father, while a bastard is filius nullius. |