Metus carceris. tion of the Court in the case of Hay, that they act more cautiously who take such ratifications.' Deeds extorted by creditors from their debtors metu carceris, when such deeds are not confined to the debt on account of which the imprisonment has taken place or is threatened, are reducible.1 a Fraser's case had reference to an absolute disposition of lands; and the right of the disponee, who was likewise a creditor of the granter, was reserved to the extent of a security for any debt due by the granter to him. On this point I refer also to the case of Tait,2 where a discharge by a married woman was reduced, under special circumstances, one of which was that she was constrained to grant it by imprisonment. But the objection of metus carceris is not available, if the deed, though granted in prison, whilst in fear of incarceration, is not in favour of the incarcerator, but of a third party, with whom there is no collusion. And incarceration, actual or threatened, on a legal warrant, is vis legalis; and it is not unlawful for a creditor to take from his debtor a bond of corroboration, applicable solely to the debt in respect of which the imprisonment has taken place or is threatened, nor security exclusively for payment of that debt. The corroboration or security, however, must be strictly confined to the debt on account of which the imprisonment has taken place, or is threatened; as to any further purpose, it will not be sustained. The distinction between the cases of corroboration or security, applicable exclusively to the particular debt, or going beyond that debt, is well illustrated in the case of Heriot.6 8 It is not essential that the violence or threats should operate bodily fear to the party who grants the deed sought to be reduced. Where an aged man was apparently in imminent danger of violence, a bond granted by his son, in order to procure his father's release, was reduced." And the fear need not be of violence or bodily harm. Thus an obligation, granted to one in liege poustie, by his heir, through fear of being disinherited, binding the heir not to reduce any deed or settlement which his relative might make on deathbed, was held not to preclude the heir from setting aside a deathbed deed to his prejudice.8 The plea of vis et metus is available, not only against the offending party but also against onerous third parties." 1 Arrat v. Wilson, 23 March 1718, Robertson's App. 234; Bell v. Thomson, 24 Feb. 1762, M. 16,515; and Fraser v. Black and Knox, 13 Dec. 1810, F. C. 2 Tait v. Wilson, 4 June 1831, 9 Sh. 680. 3 Pringle v. Fullerton, Dec. 1682, 2 Br. Sup. 27. 4 Bishop of Ross v. Fouller, 30 June 1670, 2 Br. Sup. 479; Ker v. Edgar, 9 Dec. 1698, M. 16,503. a Imprisonment for debt was, with some exceptions, abolished on 1st January 1881. TITLE VII. HOMOLOGATION AND REI INTERVENTUS. CHAPTER I. THE principle on which a deed receives effect is, as already explained, that it expresses the intelligent and deliberate consent of the party who grants it; and the necessity for intelligent and deliberate consent, in order to make a deed valid, is the ground on which pupils and certain other classes of persons are wholly, or to a certain extent, under disability as to granting deeds. But what is wanted in all cases is consent from a qualified party. If such party will not express his consent otherwise than by a formal and duly authenticated deed, the law will hold him free until he has executed such deed; but if, waiving the protection afforded by the law in that particular, he takes some way of his own to express his consent, the law does not insist on the strictly formal mode being adopted. The essential is the consent, which will be taken from a qualified party, in such competent, but of course distinct and unequivocal, way as he chooses to give it. Hence the doctrine of Homologation HOMOLOGATION. (literally saying the same thing '), which, as far as concerns the department of Conveyancing, is the subsequent approval of a deed in itself imperfect or null, for want of the legal solemnities, or through the incapacity of the parties, or in respect of fraud, or on some other ground. The doctrine of homologation applies with especial force to the case MARRIAGEof a contract of marriage, on the faith of which marriage has followed. Where it was attempted to reduce a marriage-contract, in respect of certain alleged defects in the solemnities of authentication, the Court unanimously sustained the contract; Lord Gillies observing that when a marriage has been solemnised on the faith of an antenuptial conI tract, it is not enough to allege defects in the solemnities of deeds in order to warrant a reduction; there must be actual forgery of the deed ⚫ libelled to make the ground of reduction relevant." In an earlier case, an antenuptial contract, signed by the husband and the wife's father, but not 1 Falconar v. M'Leod, 14 Jan. 1830, 8 Sh. 312. CONTRACT. by the wife herself, was held binding upon all concerned, including the wife, to the effect of making a discharge of her claim of terce, contained in the contract, good against her, although she had not signed the deed. The want of her signature seems to have been accidental, and her connection with the deed, and the identification of the deed as the contract on which the marriage had followed, were sufficiently established.1 The lady's connection with the contract is of course essential, otherwise even marriage could be no homologation on her part. Accordingly, proposals of marriage,—given by the intended husband to the bride's brother, a lad of fourteen years of age, who stated that he had not approved them, nor shown them to his father or sister, and with which there were apparently no grounds for connecting either of these parties, were not considered as a marriage-contract, notwithstanding the subsequent marriage.2 But deeds of every kind, in themselves lawful, may be made obligatory by homologation, though wanting in the prescribed solemnities. A bond, in which one of the witnesses was not designed, was sustained, in consequence of the debtor paying interest, and half the principal, and raising a process of suspension as to the other half.3 A submission by a wife, regarding her heritage, to which there was only one witness, was sustained, because her husband appeared and pleaded on her behalf before the arbiter. The husband being the wife's administrator, his consent was held to imply hers. A will, neither holograph nor tested, was found to be homologated by a writing of the residuary legatees' subjoined to it, and by their taking possession of the testator's estate in terms of it.5 These cases have reference to deeds imperfect as regards the legal solemnities. But homologation will equally remove imperfections in other respects, provided always these do not amount to intrinsic nullities. For example, a deed by a minor, without consent of his curators, may be homologated after majority; or a deed by a married woman, by acts of approval done by her after she became a widow. A deed, open to reduction on the ground of fraud, may be homologated and rendered unobjectionable. And even the plea of vis et metus may be excluded by homologation. But a deed or act in itself unlawful, whether by Statute or at Common Law, cannot be made good by homologation. Consent, on which alone homologation is founded, is excluded in every form as to such deeds and acts. Moreover, a deed signed by one legally or naturally incapable of consent, as a pupil, or an idiot, is truly no deed 8 1 Wemyss v. Wemyss, 16 Nov. 1768, M. 9174. 2 Campbells v. M'Glashan, 5 June 1812, F. C. Sinclair v. Sinclair, 17 Feb. 1715, M. 5654. 4 Tailfer v. Hamilton, 21 Jan 1735, M. 5657 & 17,032. 5 Pollock v. Ballantine, 20 November 1849, 12 D. 143. 6 Hume v. Lord Justice-Clerk, 28 June 1671, M. 5688. 7 Mitchell v. Cunningham, 10 Dec. 1672, M. 5711. 8 Dunbar v. Bishop of Murray, 16 Jan. 1672, 1 Br. Sup. 649; and M‘Michan v. M'Michan, 22 June 1839, 1 D. 1085. 9 Grant v. Anderson, 11 July 1706, M. 16,509. and cannot admit of homologation.1 Lord Moncreiff says, 'An act, in itself null from its incompetency, cannot be homologated.'2 This remark had reference to a summons signed by one who had no authority, and as to which there were other equally fatal irregularities, and which the Court held incapable of homologation. The case brings out clearly the principles on which homologation can take place, and those on which it is excluded. Lord Cringletie there says, 'Parties are entitled to a 'citation to appear in Court, and they may waive their right and But there must be a summons to which the judge 'must look, and without which he cannot entertain any action, as there 'is no such proceeding as a defender being brought into Court obtorto 'collo.' appear without it. But if the document, even when null as a deed, and incapable of ADOPTION. homologation, is in an intelligible and precise shape, it may be made operative by adoption, which, though resembling homologation, has different results.3 Having regard to the principle on which homologation rests, it is obvious that the plea is available only when the party is aware of the existence of the deed said to be homologated, as also of his right of objection, and of the consequence of waiving such right. There can be no intelligent consent to that of which we are not duly informed. Thus, a party who had a right of legitim, of which she was entirely ignorant, accepted, for several years, the interest of a provision in her favour, made by her father, as in full of legitim. She was found not barred of her right to claim the legitim, and to repudiate the provision.* The party who is to homologate and ratify an imperfect deed should have the fullest possible information given him regarding his legal rights, and the effect of his executing the proposed ratification, and full time to deliberate, and obtain advice as to the course he ought to take, more especially if he is young, and not experienced in business. In the case of Murray, the right of reduction of a deathbed deed by his predecessor was found not barred to the heir-at-law by a deed granted by him during his predecessor's lifetime, whereby he renounced his legal rights; nor by another deed executed subsequently to the predecessor's death, ratifying the former one; the heir having just attained majority, being imperfectly educated, little, if at all, informed of his legal rights, and without the assistance of any law-agent or adviser. AS WITNESS. The acts on which the plea of homologation is founded ought to SUBSCRIPTION imply acquaintance with the contents of the deed homologated; and the mere subscribing as witness to a deed does not, in general, infer the witness's homologation; because witnesses simply attest the party's 1 Erskine, iii. 3. 47. 2 Cumming v. Munro, 19 Nov. 1833, 12 Sh. 61. 3 Bell's Commentaries, i. 145. 4 Johnstone v. Paterson, 29 Nov. 1825, 4 Sh. 234; see, to similar effect, Keith's Trustees v. Countess of Flahault, 17 5 Murray v. Murray's Trustees, 21 3 subscription, and in general are not informed of the contents of the deed which they subscribe as witnesses. But where the deed is a marriagecontract, and the witness the bride's father or brother, a presumption 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. 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. 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 |