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payment of the remaining half of the bill for his food and lodging, MINORS.
suspended the charge or diligence against him, in respect of the omission
to cite the curators.

Parties have a right of restitution, against deeds granted to their prejudice, during their pupillarity or minority, extending over forty years from the day when they attain majority, in cases of original nullity; as, for example, in the case of deeds by pupils, or by minors having curators, without their consent; or with such consent, when in favour of the curator himself.1 The objection, however, that a tutor cannot be auctor in rem suam cannot be pleaded by third parties.2 Parties have the like right of restitution in all other cases, even when, having curators, they and their curators have jointly granted the deeds sought to be set aside; but, in this last case, only until the expiry of four years after majority, Quadriennium called the quadriennium utile; that is, at any time before attaining twenty-five years complete. This right is not cut off by a slight act of homologation or approval occurring very recently after majority;3 more especially when there is fraud involved. But if any consideration was given for the deed sought to be set aside, the restitution extends only so far as such consideration has not been in rem versum of the pupil or minor. The decisions suggest the importance of preserving evidence of the beneficial employment of money advanced on account of minors.

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utile.

POWERS TO

When tutors or curators testamentary (who are not subject to the SPECIAL provisions of the Pupils Protection Act of 1849) desire to obtain special TESTAMENTARY powers, they can apply to the Junior Lord Ordinary, under the Court TUTORS. 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.

1 See opinion of Lord Rutherfurd in Manuel v. v. Manuel, 15 Jan. 1853, 15 D. 284, and authorities there quoted.

3 Downie v. Campbell, 31 Jan. 1815, F. C.

3 Melvil v. Arnot, 5 July 1782, M. 8998.

4 Leiper v. Cochran, 9 July 1822, 1 Sh. 552.

5 Anderson v. Anderson, 15 Nov. 1832,
11 Sh. 10; Harkness v. Graham, 20 June
1833, 11 Sh. 760.

620 & 21 Vict. c. 56, s. 4.
7 Ss. 5, 6.

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.

CHAPTER II.

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

а

OF MIND.

In cases of insanity or idiocy, the party may be cognosced before COGNITION. 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,b 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 v. Sellars, 16 May 1817, 5 Dow's App. 231

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a The procedure in cognitions is now regulated by 31 and 32 Vict. cap. 100, s. 101, and Act of Sederunt of 3 Dec. 1868. See Larkin v. M'Grady, 8 Dec. 1874, 2 R. 170. The procedure introduced by the Act does not render application for the appointment of curator bonis incompetent;-Irving v. Swan, 7 Nov. 1868, 7 Macph. 86.

b Where the yearly value of the estate does not exceed £100, a judicial factor may be appointed by the Sheriff; 43 & 44 Vict. c. 4.

UNSOUND 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. 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 a 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 1 1 Scott, 7 Feb. 1855, 17 D. 362.

2 Christie v. Gib, 13 Feb. 1700, M. 6283.

3 Gillespie v. Gillespie, 11 Feb. 1817, F. C.; see also Watson v. Noble's Trustees,

18 Nov. 1825, 4 Sh. 200; affirmed 20 June 1827, 2 Wil. and Sh. App. 648.

4 Morrison v. Maclean's Trustees, 27 Feb. 1862, 24 D. 625.

15.

Clunie v. Stirling, 14 Nov. 1854, 17 D.

a See also Munro v. Strain, 18 June 1874, 1 R. 1039.

his part as to a secondary purpose was found, in a special case, not to UNSOUND MIND, authorise the reduction of the whole deed.1 There, a testamentary writing was sustained, by which a party in very advanced age (he died at ninetyfive), 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 authorise 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, 'whether the party had been circumvented. Under this issue, you

1 Scott v. Jerdon, 17 Nov. 1789, M. 4964; affirmed 23 Feb. 1791, 3 Paton's App. 683.

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