on this question of delivery. In some cases it may be conclusive, and in others of no importance. That there must be delivery, is a point of law; but whether there has been delivery or not is a matter of fact requiring to be proved, and which a variety of circumstances may affect a

Judicial ratification by a wife, of a deed to which she is a party, does not infer delivery; it is matter of notoriety that deeds are so ratified with a view to delivery in a completed state, and not as the result of delivery.1

As the granter of a voluntary deed cannot be bound by it till he ACCEPTANCE. place it out of his own power, by delivery or its equivalent, neither can the grantee be bound till he accept of it, especially if it expresses burdens and conditions intended to affect him. The bare receiving it from the granter ought not, in reasonable construction, to infer acceptance. The natural presumption is, especially if there are burdens and qualifications, that when it is placed in the grantee's hands he is to be left. suitable opportunity to consider whether he will accept or repudiate." The fact of acceptance, if disputed, will be a subject for proof prout de jure, just as any other fact would be. It will be sufficiently proved by the grantee's acting upon the deed-taking the benefit of its provisions in his favour, placing it upon record, or otherwise treating it as his deed. If, however, it is of importance to prove acceptance in any case, a regular written declaration of acceptance should be obtained from the grantee.

In a recent case, the institute in an entail, executed by testamentary trustees in pursuance of their trust, opposed a petition for recording the entail at the instance of the trustees, as he had not accepted the conveyance in his favour contained in the entail, and did not mean to accept or take benefit under it. But as he did not aver that any positive injury would result to himself from recording the deed, and there were other parties interested in it, whether he accepted or not, the Court held that they could not refuse to record.3 Of course, if it was open to the institute to accept the conveyance or not- a question not discussed in the above case-and if he did not accept, the deed of entail could not operate as a conveyance to him.

1 Bathgate v. Cochrane, Jan. 1685, M. 17,004.

2 Erskine, iii. 2. 45.

3 Gilmour's Trustees v. Gilmour, 6 Dec. 1856, 19 D. 134.

a See Tennent v. Tennent's Trustees, 2 July 1869, 7 Macph. 936, in which it was held that an ex facie absolute and irrevocable trust conveyance of heritage inter vivos, properly stamped as such, registered by the maker in the Books of Council and Session, and of which an extract had been transmitted by him to one of the trustees, with writs and securities affecting the property, was a delivered deed, although the granter afterwards executed a revocation thereof, expressly declaring that it had not been intended to be irrevocable, and had been registered for preservation merely.

VOL. I.

H

TITLE IV.

INCAPACITATED PERSONS.

INCAPACITY

FROM IMPER-
FECT AGE.

CHAPTER I.

We have now considered the rules of law applicable to the authentication of deeds, and have likewise seen that delivery by the granter, and acceptance by the grantee, are necessary to the completion of deeds in general, in evidence of that consent and completed purpose of the parties on which deeds must proceed. We shall, by and bye, have to consider those exceptional cases in which consent is expressed or proved otherwise than by deeds authenticated according to the legal solemnities; and also those cases in which consent not being truly given, though apparently testified in accordance with all the legal solemnities, the deed is open to be set aside on the ground of essential error, fraud, or force and fear. What is required, you will observe, is consent; and the law, whilst, on the one hand, not restricting parties to any exclusive mode or form of giving the necessary evidence of real consent, on the other hand, will not be satisfied with apparent evidence, however formal, if there is no real consent. But, before proceeding to these points, it will be convenient here to consider the case of those parties who, from natural or other causes, are held not competent to form that deliberate and free judgment which the law requires in order to an effectual

consent.

I will notice, first, Incapacity from Imperfect Age.1

Parties are said to be under age, or in nonage, until they arrive at majority, that is, have completed their twenty-first year; and all under that age are, in ordinary language, described as in minority. Strictly speaking, however, the period up to twenty-one years of age is divided into pupillarity, extending in males to fourteen, and in females to twelve years of age; and minority, from these respective ages, to twenty-one; Personal Relations, vol. ii. p. 61, et

1 Erskine, i. 7; Menzies's Lectures, p. 29, et seq.; Fraser on the Domestic and

seq.

a

both as regards males and females. During pupillarity, the persons, as MINORS. well as the affairs of children, are under the charge and management of tutors. Parties in minority are masters of their own persons, but, as to TUTORS. their affairs, require the consent of their curators, if they have such; and it may here be well to state that the father, if subject to no incapacity, is ex lege, and without any appointment, the tutor and curator, or, as he is generally called, administrator-in-law, to his children, so long as they are under age. Failing him by death, the offices fall to any persons whom he may have appointed to fill them, and who may accept;b failing such appointment by him, or the persons whom he has named, the nearest male relation by the father's side, of the age of twenty-five years complete, can be served before a jury upon a brieve issued from the AT LAW. Chancery, as tutor-at-law; at all events if he is resident within the jurisdiction of the Court of Session. Failing such party, the Court of Session, as in place of the Exchequer Court, will issue an appointment to a tutor-dative; or the Court of Session will appoint a factor loco tutoris ; dative. or, if only the interest in a particular process depending before the Court is concerned, a tutor ad litem, for pupils. The minor, on the other hand, can choose curators for himself; or, in immediate connection with judicial proceedings, and especially if his father has an opposite interest in such proceedings, the Court will appoint a curator ad litem to him. The Court formerly declined to name curators bonis for minors, because minors could choose for themselves; but, on a recent application for such an appointment, and after appointing a curator ad litem to inquire and report, the Court appointed the same party to be curator bonis for minors, and factor loco tutoris for pupils, all members of the same family, and having apparently similar interests in a common subject. Similar appointments have since been made. The Court will not name more than one person to be factor loco tutoris, and they will not appoint a female to that office.1

2

It has been held no objection to a person being tutor-at-law that he does not reside in Scotland.5 That office is assumed as matter of legal right, and constituted by service before a jury, not by appointment of the Court, But where the tutor-at-law was not only domiciled in England, but was partner of a company indebted to the pupils, the Court reduced his service. The Court were not unanimous in holding it an imperative rule that absence from this country constituted an ipso facto disqualifi

1 Craig, ii. 20. 17.

2 Davies, 21 Jan. 1857, 19 D. 286.

3 Brown, 1 Feb. 1815, F. C.

4 Horn, 6 March 1845, and Fraser, same date, 17 Scot. Jurist, 291.

5 Bell v. Henderson, 10 March 1784, M. 16,374; Rob v. Rob, 22 Dec. 1814, F. C.

6 Hadden v. Barr, 27 Feb. 1822, 1 Sh. 357.

The father's poverty alone is not a sufficient ground for depriving him of the administration of his children's property.-Wardrop, 6 Feb. 1869, 7 Macph. 532.

b The father alone can appoint persons to the office of tutor to his children, and he cannot delegate the selection to a third party; Walker v. Stronach, 21 Nov. 1874, 2 R. 120.

TUTORS.

CAUTION.

DISTINCTION

BETWEEN PUPILS
AND MINORS.

cation. In general, the Court will not appoint as tutor-dative the party who can serve as tutor-at-law, though in special circumstances they will do so.1 In another case, the Court of Exchequer appointed an Englishman to be tutor-dative to a Scotch pupil, and, on this circumstance coming before the Court of Session, the Lord Justice-Clerk Hope observed, that no tutory should be conferred upon a person whose domicile does not make him amenable to the jurisdiction of the Court of Session. But more recently, the Court, considering the frequency of connections by marriage arising between parties having English and Scotch domiciles, and the consequent importance of allowing minors in Scotland to choose curators domiciled in England, approved of the nomination by a Scotch minor of his uncle, by the mother's side, as his curator, though the uncle was domiciled in England, on condition that the curator should bind himself to be subject to the jurisdiction of the Courts of Scotland in matters connected with his office.3 a

The father, and tutors and curators named by him, are not required to find caution for their intromissions. Neither do tutors or curators ad litem find caution, because they have merely to act in judicial proceedings, and can have no intromissions. All other tutors and curators, and factors loco tutoris, must give caution before they can enter on the administration of their offices; but the Court will now accept the bond of a Guarantee Association, unlimited as to liability, for the tutor or factor, in place of an ordinary bond by an individual cautioner. In Burnett's case, the association was formed with unlimited liability on the part of its members or partners, for fulfilment of all its obligations. It would appear that a bond by a company formed with limited liability would not be accepted.5

As a general rule, no one has full power of acting for himself before he reaches majority; but there is an essential distinction between the legal position of persons in pupillarity and those in minority. Pupils cannot, under any circumstances, validly contract, or grant a deed, because they are regarded as absolutely incapable of giving that deliberate consent which is essential to a contract or deed. This is a rule to which there is no exception. Such deeds as are required on behalf of pupils can be granted only by their tutors, or by factors loco tutoris where there are no tutors. Minors, on the other hand, though they are rightly considered as wanting that maturity of judgment which is necessary for their protection in the transaction of business, are not, by the law of

1 Reid, 2 March 1860, 22 D. 932.

2 Earl Craven v. Elibank's Trustees,

25 June 1853, 15 D. 781.

3 Lord Macdonald v. Macdonald, 11

June 1864, 2 Macph. 1194.

4 Burnett, 8 July 1859, 21 D. 1197.

5 Sim, 5 Dec. 1863, 2 Macph. 205. 6 Erskine, i. 7. 1; Bruce v. 24 Jan. 1577, M. 8979.

a In the case of Fergusson v. Dormer, 25 Jan. 1870, 8 Macph. 426, the Court refused to sanction the nomination by a minor of a domiciled Englishman as curator, on the ground that no such case of necessity for choosing a person beyond the jurisdiction of the Court had been made out as in Lord Macdonald's case.

Scotland, held incapable of deliberating. On the contrary, although practically their powers are limited, their acts and deeds are not null if they have no curators; and even if they have curators,-in which case, generally speaking, the consent of the curators is necessary in order to validate the minor's deeds,-yet, in the granting of deeds, the minors are the principal parties, and their curators are merely consenters along with them.

TUTORS.

The powers of tutors arise partly by Statute, but chiefly at common POWERS OF law; aided, in cases of emergency or necessity, by the exercise of the nobile officium of the Court of Session, in conferring extraordinary powers on them. The common law powers vary, in some respects, according as the tutor is the pupil's father, or is named by the father, or appointed by law, or by the Court. The powers of the father, or of his nominees, are the largest. It may be laid down, generally, that the father, and all tutors, curators bonis, and factors loco tutoris, holding appointments conceived in the usual terms, can perform acts of ordinary and necessary administration, having for their object the preservation and management of their ward's estate, and the fulfilment of obligations due and incumbent on him by law.

Tutors-testamentary can make up titles in the person of their ward to his estate, simply in virtue of their office,' and the Court will, under ordinary circumstances, grant such power to any tutor or factor loco tutoris,2 though it is by no means clear that special powers are required by such factors or tutors for the above purpose. The titles, when made up, ought to be conceived in favour of the pupil, not of the factor or tutor.3

All tutors have further full power to levy the pupil's rents and interests, and to grant receipts therefor; to appoint factors and stewards under them, when the case requires,—from whom, however, they ought to require caution; to remove tenants on the expiry of their leases, or when removal ought to be insisted on as an act of ordinary administration; to grant new leases, which, however, if granted without special power, will cease with the expiry of the tutors' office; to enter the heirs. and singular successors of the pupil's vassals-the granting to such parties of the writs required for renewal of the last investiture being a legal obligation incumbent on the pupil, though special power to do so is frequently asked for of the Court; and generally the tutors can grant such deeds as the pupil, if he were of age, might be compelled by law to execute. It was so decided, as to the alienation of heritage by granting a feu-right which the deceased ancestor, whom the pupil represented as his heir, had become bound to execute. When, however, 4 A. v. Marquis of Huntly, 3 Jan. 1672, M. 16,285.

1 Graham, 21 Jan. 1852, 14 D. 357. 2 Baird, 13 Jan. 1741, M. 16,346; Crighton, 13 Feb. 1857, 19 D. 429; and Waddell, 19 Feb. 1851, 13 D. 739.

3 Kennedy v. Innes, 6 June 1823, 2 Sh. 375; Reid, 23 June 1830, 8 Sh. 960.

a

5

5 Earl of Aberdeen v. Laird, 26 Nov. 1823, 2 Sh. 527.

a The renewal of investiture was abolished by 37 and 38 Vict. cap. 94, as will be explained at a later stage of the Course.