SECT. 4.-Privileges of Minors. The deeds of a pupil are null, and those of a minor without consent of his curators, if he have any, are reducible, in as far as a reduction may be for his interest; but if they are deemed advantageous to him, they may be taken advantage of, and will be held binding on the other party. The estates of minors are, however, in all circumstances liable for sums profitably applied for their use.2 Minors above pupillarity, having no curators, may contract as freely as any other person; and though they have curators, they can bequeath their moveables without their consent. A minor however cannot, even with his curator's consent, make a settlement of heritage.3 Minors, whether they have or have not curators, are (with the exceptions stated below) entitled to be restored against deeds which they can prove to be prejudicial to their interest, even though they have been granted with the interposition of the court. To justify restitution, the contract must be shown to be in its nature prejudicial. It will not be sufficient that the minor have suffered from an after-depreciation, as from a house which he has bought being burned.5 Some deeds, such as obligations for money borrowed, will, from their nature, be presumed to be prejudicial, unless the contrary be proved, and the want of curators will strengthen the presumption. It is believed that a debtor cannot pay up a principal sum to a minor with safety, unless he knows that it is to be employed to his advantage, or a curator have interposed. Restitution must be reciprocal, the minor restoring so much as will make him, not a gainer by the resumption of the transaction, but in the situation in which he was before he entered on it.8 If the minor has married between his pupillarity and majority, his privilege does not extend to a challenge of the marriage, but it may entitle him to reduce the marriagecontract. A minor, who has commenced business on his own account, cannot be restored against the deeds granted by him in the course of his business, e. g. bills of exchange, bonds for borrowed money, &c.10 In a case where a boy of seventeen was found liable for money misapplied, in the 1 E. 33. B. C. i. 132.-2 E. i. 7, 33.-3 Ibid. Cunynghame v. Whitefoord, 8th March 1797, M. 8966. 4 E. i. 7, 34. Wallace v. Wallace, 8th March 1817.- E. i. 7, 36. B. C. i. 136.- E. i. 7, 37. B. C. i. 136. M'Michael v. Barbour, 17th Dec. 1840.-7 Iv. Er. 188, n. 228.—3 E. i. 7, 41. B. C. i. 136.-9 E. i. 7, 38.-10 Ibid. course of the duties of sheriff-clerk-depute which he had undertaken, it was laid down" that a minor, whenever he undertakes an employment, by which he gains a part of his livelihood, becomes responsible, as well to his employer as to the public, for all his acts done in that situation." Restitution was refused for debts incurred by the son of a nobleman in the army, for articles which," although not absolutely necessary, were commonly possessed by young gentlemen of fashion and fortune." 2 The right to restitution is competent to the heirs or creditors of the minor; but whoever is to use it, the action must be commenced within four years after the minor has attained majority.3 Questions of accounting between minors and their tutors and curators prescribe in ten years, and after the lapse of that period from his reaching majority, guardians cannot be made responsible for their management of the property of their ward. In the case of deeds which the minor, on attaining majority, can reduce as above, he must bring his action of damages against the curator within the four years. A minor is privileged, from being called on to defend the feudal title of his paternal ancestor, if it is disputed by one claiming a preferable title. Minors cannot vote for persons to fill, or, in their own persons, fill public offices; e. g. seats in parliament, or in town-councils and other corporations. 5 SECT. 5.-Guardians to Idiots and Madmen. Cognoscing.-Idiots and madmen may be subject to guardianship after being "cognosced" by a jury. The process commences with the next of kin obtaining a Brieve of Inquest from Chancery, directed to the Sheriff, and empowering a jury to inquire as to the nature of the malady of the individual, and the period during which he has been subject to it.7 The individual should be produced to the jury, and personally examined by them, and the want of such personal examination will be a material ground of reduction.9 8 The effect of a verdict, finding the individual either insane or an idiot, is, that all obligations granted by him from the period when the malady is decided to have commenced are invalid, as presumed to have been granted by one incapable of consent, unless it can be proved by the holder of the obligation that the granter was of sound mind at the time.10 2 Heddell v. Duncan, 5th June 1810.- Johnston v. Maitland, 20th Nov. 1782, M. 9036.-3 E. i. 7. 35. B. C. i. 135.- E. iii. 7, 25.—5 Ibid. i. 7, 35.Ibid. 43, 44.-7 E. i. 7. 50.-8 Ibid. 51.-9 Dewar v. Dewar, 25th February 1809.-10 E. i. 7, 50, and Iv. n. The office of guardianship devolves on the nearest male agnate, if he is capable of exercising it; if not, a tutor dative is applied for.1 A father is guardian to his insane or imbecile child, and a husband to his wife in similar circumstances.2 A father can appoint a curator-testamentary to his insane or imbecile child; but it is understood that, to give him full power to act beyond the period of majority, the ward should be cognosced. The guardian must resign his office, and account to his ward on the restoration of the latter to a sound mind; but he cannot, with safety, do so without judicial sanction.4 In cases where individuals, without being quite insane, or idiots, have been subject to hallucinations, or have been, from great mental or bodily weakness, unable to conduct their affairs, the Court of Session has, in its own discretion, appointed guardians.5 Interdiction is a process by which persons of facile temper may be subjected to curatory in regard to their heritable property. It may be a judicial act proceeding on the application of the heir or next of kin, or a voluntary obligation by the party. It must be recorded in the register of inhibitions. It only renders deeds reducible in so far as they are prejudicial. (See Sect. 4.)6 E. i. 7, 50. B. P. 2109.-2 E. i. 7, 50.—3 Ibid. 49.— Ibid. 52.—5 Ibid. 48, and n.*— 6 Ibid: 53-59. PART II. THE VARIOUS CLASSES OF PROPERTY AND THEIR RESPECTIVE TENURES. CHAPTER I. DISTINCTION BETWEEN HERITABLE AND MOVEABLE. THIS leading distinction apparently corresponds, at least in its general features, with the English division into Real and Personal; and as these latter terms are sometimes employed in acts of parliament which relate to Scotland, it has been necessary to consider them equivalent to the words Heritable and Moveable. This distinction pervades many portions of our law; it characterizes the whole law of succession; it is intimately connected with the law of landlord and tenant; it affects the law of contracts in general, in as far as it often depends on the question-whether a thing be heritable or moveable, whether it has changed owners or not; and it has divided the department of the law relative to Diligence or Execution for debt, one branch being applicable to the attachment of Heritage, the other to that of Moveables. It is however in reference to succession, and in distinguishing the property which goes to the Heir from that which falls to the Executor, that lawyers are accustomed to lay down the broad rules of distinction between Heritage and Moveables. SECT. 1.-Corporeal Property. Land, with all the portions of the crust of the earth incorporated with it, as minerals, turf for fuel not separated, &c. is heritable. Trees and wild plants not recovered from the ground are heritable. Certain things artificially attached to the land are also heritable; among these are buildings, and fixtures, such as the doors and windows of buildings, and machines of extensive size. Machinery. Some of the most difficult questions regarding the distinction of heritable and moveable are connected with machinery. Sometimes the subject is heritable and the machinery is a mere accessary; but on other occasions the material subject is the trade with the capital invested, and the machinery, whether fixed or loose, is a mere adjunct of it. In a late case, where the matter was well considered, it was admitted that in the former alternative the machinery would be heritable, and in the latter moveable,—and that it was difficult to draw the line. A decision, however, was given in a question of succession, as to machinery erected by a landlord, in connexion with mines in his own personal occupancy, and for the purpose of raising the minerals and converting them into a marketable commodity. It was found that all the machinery directly attached to the ground, or indirectly, by being connected with what was so attached, though capable of removal, was heritable. The rule included "those loose articles which, though not physically attached to the fixed engines, are yet necessary for their working, provided they be so constructed and fitted as to form parts of this fixed machinery, and not be equally capable, in their existing state, of being applied to any other engines of the kind.") In the case of machinery and other property in a like position, the rule as to what is heritable in questions of succession is far from corresponding with that applicable to questions among creditors. In the former, in conformity with the above decision, the buckets, chains, and other accessaries of a coal mine are heritable, and even the horse used for driving a horse-mill has been maintained to be so, while in questions of the latter kind some hold that whatever can be removed with safety to itself and the property is moveable.2 Leases of lands and tenements, although they are properly speaking personal rights arising out of contract, are heritable, in so far as regards succession and the means of attachment for debt.3 Heirship Moveables.-In questions of succession, certain subjects of a moveable character, termed Heirship moveables, are considered as heritage. It is difficult to define these, otherwise than as such a portion of the furniture of a mansion, or the stocking of a farm, as will enable the successor 1 Dixon v. Fisher, 6th March 1843; affirmed, 26th June 1845. 4 Bǝll, Ap. 286.-2 E. ii. 2, 4, and Iv. n, M. St. cxxxviii. et seq.-3 M. St. cxli. Hunter, ii. 540. |