PART I. CHAPTER I. M. 7142. M. 3095. 5 S. 128. 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 settlement of his heritage, either with or without the interdictor's consent; in support of which doctrine he refers to the case of Tenant v. Spreul, M. 7127. PART I. December 1725. But that was the case of a disposition in favour of the interdictor; and the doctrine does not appear to have any good CHAPTER I. 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 some 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; 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. Elchies v. "Pro and 5 Br. Supp. 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-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 shown 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.+ * See Note, supra, p. 33. * + In Wilson Petitioner, 21st February 1857, it was held that a judicial factor on the estate of a person who was deaf and blind, and incapable of managing his own affairs, did not fall under the Statute. PART I. CHAPTER I. 17 D. 321. Curator bonis. INCAPACITY OF INCAPACITY BY REASON OF ATTAINDER. M. 10,449. COMPANY TO TAGE. As a general rule, the Court will not appoint a female to the office 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. * 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. PART I. Until recently, bastards or natural children were incapable of making wills; but by the Stat. 6 & 7 Will. IV., cap. 22, such persons CHAPTER I. were, on the grounds of justice, humanity, and expediency, empowered INCAPACITY OF to dispose of their moveable estate by testament or last will, like other persons. In deeds taken to or granted by corporations, or trustees for societies, it is essential that they be conformable to the charter or other constitution as regards the competency of holding the subject, and the mode of vesting and disposing of it. BASTARDS. TO CORPORA TIONS. 2. Subject-matter of Deeds.-Having thus ascertained the descrip- Deeds by or tion of persons to whom the law has denied the capacity of contracting, or has given it under certain precautions and safeguards, we are in a situation to determine whether a party is, or is not, qualified to be the granter or grantee in a deed; and we shall now proceed to inquire what there may be in the subject-matter of the contract to deprive it of legal force. Every obligation, duly contracted by parties possessing powers to contract, is binding, provided the subject-matter of it be such as may legally be contracted about. But there are things with which the law does not permit parties to deal as the subject of obligations; and, consequently, it denies all legal effect to deeds granted or received in relation to such matters. TER OF DEED mores. It is self-evident that no valid obligation can be undertaken or SUBJECT MATgranted, to do that which is in itself naturally impossible; and by an MUST NOT BE extension of this principle-things being held to be out of our power, contra bonos which reason or law forbids-no one can validly contract to do that which is immoral or unlawful. It is to be held as settled, therefore, that no deed granted for a cause which is contra bonos mores, will be sustained. Thus a bond granted as the price of prostitution will not receive legal effect; Hamilton v. De Gares, 26th June 1765. This M. 9471. case shows that the principle is not to be extended to all the consequences of the turpis causa, on account of which the deed subject to reduction has been granted; for there were here two bonds, one to a woman who had lived in adultery with the granter, and the other to her daughter, the fruit of their intercourse; and it was found, that although no action could lie upon the bond granted to the mother, that given to the daughter was not liable to objection, since it was not only not unlawful that the granter should provide for his own child, but he was under a moral obligation to do so. In the case of Hamilton v. Main, 3d June 1823, a promissory note for £60, ad- 2 S. 356. mittedly granted in part as the price of prostitution, was held to labour under vitium reale, and to be therefore incapable of forming a ground of diligence for the recovery of the remainder of the amount, alleged to be compensation for board and lodgings. Right to raise an ordinary action for such balance was, however, reserved. And in PART I. CHAPTER I. 14 S. 106. F. C. Pactum super hæreditate viventis NOT ILLEGAL. M. 9491. Johnston v. M'Kenzie's Executors, 4th December 1835, it was held a relevant ground of challenge of a legacy to a female, that it had been bequeathed in implement of an illegal agreement, as the consideration of her entering into or continuing criminal intercourse with the testator. In these cases, it is to be observed, that the Court refused to interfere to give effect to an obligation undertaken ob turpem causam. But where the party who has obtained such an obligation has succeeded in procuring performance of it, the Court will not order restitution. This distinction was taken in the case of A. v. B., 26th May 1816. There a party had granted certain advantageous leases to his factor for behoof of B. and her daughter. Possession had been held under this arrangement for a period of fifteen years, when the party's heir brought a reduction on the ground that the leases had been granted ob turpem causam. But reduction was refused, the Court recognising the distinction between such an obligation, where action is brought to compel implement thereof, and its situation where the action is brought to be restored against implement which has already taken place.* By the Roman Law, the pactum super hæreditate viventis, that is, a bargain about a right of property dependent upon the life of another, was accounted contra bonos mores, upon the principle, no doubt, of discountenancing traffic in matters which confer upon the purchaser a direct interest in the death of another. The Law of England, although it does not entirely repudiate such transactions, regards them with a jealous eye, and gives the same benefit of restitution to the seller as is given by the Law of Scotland to the improvident acts of a minor. The doctrine of the English Law is thus expressed by Lord Thurlow:-" Although the owners of reversionary interests may competently dispose of them, yet, there is a policy in justice pro"tecting the person who has the expectancy, and reducing him to "the situation of an infant against the effects of his own conduct.". "The heir of a family, dealing for an expectancy in that family, shall "be distinguished from ordinary cases, and an unconscionable bargain made with him shall not only be looked upon as oppressive in "the particular instance, and therefore avoided, but as pernicious in principle, and therefore repressed." There is no such doctrine, however, in the Law of Scotland, which has not adopted the maxim of the Civil Law, and sales of reversionary interests, dependent upon the death of living persons, have long been sustained by our Courts ; Aikenhead v. Bothwell, 6th July 1630. In that case it was found not unlawful for a party to sell to his brother all the gear that his *The price of prostitution is, however, to be distinguished from a compensation for injury already inflicted; as, where a bond of annuity has been granted as a voluntary compensation for injury done by a past illicit connexion, and as an inducement to separate instead of an inducement to continue the cohabitation. See Bell's Princ. § 37, and note thereto; and Illustrations, pp. 60, 61. |