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rent. No more than two liferents can subsist at one time, but a successor may be nominated before the death of any liferenter.2 Heirs in possession may grant bonds of provision to their lawful children, which must not exceed,-for one child one year's free rent (after deducting all burdens, including provisions to widows, &c.), for two children two years' free rent, and for three or more children three years' free rent. Unless where it is stipulated for in the marriagecontract of the child, the provision becomes extinct on the death of the child for whom it is intended.3 When an estate has been burdened for provisions to children to the extent of three years' free rent, it can be burdened no farther till some part of the burden has been extinguished. Provisions exceeding the legal amount are not null, but reducible as to the excess. The provisions can only be made good against the rents, and cannot be made the means of attaching the property. Children may claim their provision with interest on the expiration of a year after the death of the granter.7 An heir pursued for a provision to the children of a predecessor may be discharged by assigning one-third of the free rent of the estate until it be extinguished. In one case where a provision in a child's marriage contract was made payable by general representatives to trustees, an attempt by a separate deed to throw the burden on the heir of an entailed estate belonging to the parent was defeated.9

Churches and Schools.-A special act enables heirs in possession and with their title completed, if they be of age, and if they are under guardianship, enables their guardians, to grant feus or leases for places of worship or schools, with corresponding area for the house of the minister or the schoolmaster, or for a churchyard or playground.10 The space that may be awarded is thus limited-a quarter of an acre for a church with an acre for burying ground; an acre for a schoolhouse and playground, an eighth of an acre for the dwelling-house, and half an acre for the garden of the minister or schoolmaster. The periodical consideration to be paid for the property may be less than its just value, but the heir who grants the right must not take to himself any grassum or other sum payable exclusively to himself, and not generally distributed over a continuance of time." The transaction must proceed on a decision of the sheriff, founded on an

1 5 Geo. IV. c. 87, §§ 1, 2.-2 Ibid. § 3.3 Ibid. §§ 4, 5.- Ibid. § 6.— 5 Ibid. § 7.- Ibid. § 8.-7 Ibid. § 9.- Ibid. § 10.9 Breadalbane's Trustees v. Breadalbane, 26th May 1840.-10 3 & 4 Vict. c. 48, § I.-" Ibid.

application made to him in the special terms provided by the act, and the next heir if he have not given his assent must be cited in terms of the act.1 The title is completed by recording the charter, in the general register of sasines. The parties holding such rights in trust must not alienate or burden them, and deeds to the contrary are void.3

Public Works.-In local acts for public works—such as railways, harbours, &c., it has been usual to obtain special powers to deal with heirs of entail for the conveyance of lands. In the "Lands' Clauses Consolidation Act," permanent provision is made for accomplishing such transactions under judicial control, in all works conducted under future local acts.*

13 & 4 Vict. c. 48, § 3.— Ibid. § 5.—3 Ibid. § 6.— 8 & 9 Vict. c. 19, $7.

PART IV.

OBLIGATIONS AND CONTRACTS.

CHAPTER I.

QUALITIES NECESSARY TO RENDER OBLIGATIONS BINDING.

SECT. 1.-Offer and Acceptance.

Consent.-As all contracts are founded on consent, the question, whether a man has bound himself or not, will depend on the previous one, whether he has or has not given evidence of consent to be bound. Lord Stair has divided the process of giving consent into three different grades,—first, a desire or intention to agree to the terms,-second, a resolution or intention of becoming bound,-and, third, the actual engagement.1 Accordingly, where only the first or second process has taken place, the law considers that there is no contract. A Promise, if absolute and unconditional, is binding, but if conditional, it only becomes so on the fulfilment of the condition. An Offer is a promise subject to the condition of Acceptance, and until it is accepted the person who makes it is not bound.2

Mistakes.—It is an essential ingredient of consent that the party should understand the nature of the obligation he intends to come under, and the subject of it, and therefore if one finds that where he thought he had agreed to let a subject, he is understood by the other party to have agreed to sell it, or that where he thought he had promised to A, he is understood to have promised to B, there will in the general case be no binding obligation. The mistake, however, must be essential to the foundation of the contract, and the dis

1 1 St. i. 10, 2.— Ibid.—3 E. iii. 1, 16.

crepancy such as entirely to alter its nature; thus error as to the person will only vitiate a contract if personal identity be of importance, as in a contract of marriage, or of service, or any contract in which personal credit is taken into view. It frequently happens that bargains are made on the information of scientific persons or others supposed to be better acquainted with the real state of matters, than the parties themselves. In such cases when the source of information is referred to, but not warranted as correct, the party is not responsible for error or misrepresentation, unless fraud can be proved against him. Thus, a party having obtained from a mining engineer a report that there was valuable coal on his ground, let the coal with reference to the report, and it turned out to be unworkable: it was found that unless fraud could be substantiated, the lessee had no ground of reparation against the lessor.2

*

Persons incapable or presumed to be incapable of consent cannot be bound by their deeds. This extends to madmen and idiots, whose sanity will generally be the subject of a trial by jury. If the granter has been cognosced, there is a presumption against his sanity, and it must be specifically proved that he was of sound mind when he granted the deed; on the other hand, if he has not been cognosced, he is presumed to have been of sound mind until the contrary be proved.3 Persons who have been "interdicted" from disposing of their heritable property, on application to the Court of Session, on account of their improvident and facile character, cannot properly be called incapable of consent in any way, but their deeds as to heritage may be reduced on the ground of lesion or injury to their estate. +

SECT. 2.-Effect of Fraud, Force, or Fear.

One may resist fulfilling or may reduce an engagement to which he has given his consent from the influence of fraud, force, or intimidation.5

Fraud.-Where the existence of the contract is owing to a fraud, it becomes ineffectual; if the fraud has merely been incidentally committed in the course of the transaction, it founds a claim of damages. Fraud is generally committed.

St. i. 9, 9. E. iii. 1, 16. B. C. i. 295.- Campbell v. Boswall, 27th February 1841.-* See above, p. 43.—3 E. i. 7, 51.* B. C. i. 137.— E. i. 7, 54. As to the deeds of minors see above, p. 42, and as to Interdiction, p. 44.—5 St. i. 9, 8. E. iii. 1, 16.—6 E. iii. 1, 16. B. C. i. 242.

-1. By misrepresentation or concealment of material circumstances. Thus, where an agent having got decree for a debt believed to be desperate, concealing from his client the small amount he was entitled to charge for his professional exertions, and exaggerating the difficulties and risk in the way of obtaining payment, prevailed on the client to be content with a small portion of the sum, leaving the remainder to the agent, the transaction was found to be void.1 On the same principle, it is held, that where a manager of a company prevails on one by misrepresentation and concealment of the insolvent circumstances of the company to relieve him of his shares, it is such fraud as will void the contract.2 2. Taking advantage of drunkenness is a species of fraud which may be a good ground for relieving one from an obligation contracted under such circumstances, especially if enticements to inebriation have been held forth. It has been held in England that a state of absolute deprivation of reason by intoxication invalidates a deed. 3. A person of imbecile mind, or whose faculties are weakened by age, though not incapable of binding himself, is a more special object of protection from the machinations of the fraudulent than a person of ordinary judgment, and a less dexterous project of fraud and deception will be sufficient for the reduction of an obligation incurred by such a person.5

Force, Fear. The degree of violence, or the nature of the threats, which will render a deed reducible, will depend on the constitution and position of the party against whom they are used. The violence, from the consequence of which a man in the prime of life is protected, must be of a much more serious nature than that which will justify interference in the case of a female in bad health or advanced in life. The force or intimidation must be sufficient to overcome the will, and "compel one to do that which, of his proper inclination, he would not have done."6 To compel one to fulfil or corroborate an obligation by due course of law, however harsh the measures resorted to may be, is not a ground of reduction; but it will be so if one pursue for an obligation, and, under the infliction or threat of harsh legal pro

Taylor v. Long. App. 28th May 1824. 2 Sh. 233.- Brown v. Syme, 8th March 1834. Johnston v. Brown, 15th November 1823.Sir W. Grant in Cooke v. Clayworth, 1811, 18 Ves. 12.-5 E. iv. 1, 27. Graham v. Blair, 1st February 1715, 5 B. Sup. 120. M'Neill v. Moir, App. 21st May 1824, 2 Sh. 206. M'Diarmid v. M'Diarmid, App. 28th March 1828. 3 W. & S. 37. Morison v. Moir, 20th December 1841.6 St. i. 9, 8.

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