of vassals, granted by superiors in obedience to a charge,a-infer no homologation of the right of him at whose suit the charge is given.1 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 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.3 4 HOMOLOGATION. We have now to consider the legal operation of homologation. There EFFECT OF 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 homologation 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, 5 Erskine, iii. 3. 49. 1 Dunbar v. Vassals of Muchrome, 20 Dec. 1662, M. 6715. 2 Dallas v. Paul, 13 Jan. 1704, M. 5677. 3 Carmichael v. Carmichael's Trustees, 8 Feb. 1823, 2 Sh. 198. + Bell's Commentaries, i. 145. 5689. Murray v. Murray, 12 July 1671, M. 7 Muir v. Stirling, 19 Feb. 1663, M. a This has reference to the law as it stood prior to the Conveyancing Act of 1874, the changes introduced by which in regard to the granting of charters by progress will be explained at a later stage of the course. VOL. I. N EFFECT OF and at the same time object against the other. In such cases the party does not approbate and reprobate the same settlement. He cannot 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 realise 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. a 1 Dow v. Beith, 11 March 1856, 18 D., 820. a See Campbell v. Grant, 1 Dec. 1869, 8 Macph. 227. It may be here observed that heritable securities are now moveable estate, and descend to executors ;-31 & 32 Vict. c. 101, s. 117. See also supra, page 129, note a. CHAPTER II. I Now pass to the consideration of the plea of Rei Interventus, as REI 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.' But if there has been rei interventus, that is, if there have been proceedings not unimportant on the one side, known 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 pœnitentiæ;-the transaction must be carried out.2 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.3 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.* 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.5 In the same case, it had previously been held 1 Erskine, iii. 2. 3: Montgomerie v. Brown, 28 Jan. 1663, M. 8411. 2 Bell's Principles, s. 26. 3 Hamilton v. Wright, 22 Jan. 1836, 14 Sh. 323; affirmed 12 Feb. 1838, 3 Sh. & M'L. App. 127. 4 Dunmore Coal Company v. Youngs, 1 Feb. 1811, F. C. 5 Church of England Fire and Life Assurance Co. v. Wink, 17 July 1857, 19 D. 1079. VENTUS. ENGLISH OBLIGATION 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. 5.1 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 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 over 'simple 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. (witness),' 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, 1 Church of England Fire and Life Assurance Co. v. Wink, 12 Feb. 1857, 19 D. 414. 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 MISSIVES incomplete, was held to be a binding agreement by rei interventus, and OF FEU; 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 feu-duty, and other essentials to a bargain, had been set forth in correspondence and other documents, and only some minor conditions remained unadjusted; the Court therefore held that locus pœnitentiæ was gone, and that there was a concluded bargain; and they made a remit to a law-agent to complete and adjust the terms of the feu-right.1 This case related to a feu-contract, on which possession had followed; and, when possession of the subjects of a lease follows on an informal OF LEASE. missive or minute of tack, such rei interventus will in general make it impossible for one of the parties to draw back against the will of the other. When possession has followed on such missives and minutes of tack, it is not necessary that the documents should be formally executed. This principle operates, though only one of the parties has subscribed the informal missives. Where informal missives of lease of a farm were exchanged, and were followed by possession, but the possession was prior to the term of entry specified in the missives, a question was raised whether such possession would support the plea of rei interventus. But when, in contemplation of the lease, improvements have been made on the subjects under the eye and observation of the proprietor, the plea of rei interventus will give effect to an irregular missive, though no possession has followed.5 And where a capital sum, called a grassum, had been paid, effect was given to a verbal stipulation as to the term of endurance of a lease, the missives being silent as to the endurance. But where the missive is silent as to the term of endurance, and the tenant cannot prove that any particular term was agreed on, the lease is good for a year only; and the expenditure of 6 1 Colquhoun v. Wilson's Trustees, 20 March 1860, 22 D. 1035.a 2 Grant v. Richardson's Representatives, 10 July 1788, M. 15,180. 3 Countess of Moray v. Stewart, 23 July 1772, as reversed, 24 March 1773, 2 Paton's App., 317; Macpherson v. Macpherson and Clark, 12 May 1815, F. C. 4 Pratt v. Abercromby, 18 Nov. 1858, 21 D. 19. 5 Murdoch's Tutors v. Moir, 18 June 1812, F. C. 6 Macrorie v. M'Whirter & Gray, 18 Dec. 1810, F. C. 'Clark v. Lamont, 27 Jan. 1816, F. C. See also Stodart v. Dalzell, 16 Dec. 1876, 4 R. 236. |