The deed being thus beneficial to the pupil, the trustees were entitled in his name to homologate, and act under it. Such ratification being a beneficial act of administration, is as binding in law as if it had been done by a person of full age. Such a proceeding does not amount to a settlement or alienation of heritage, to which a minor is incompetent, but is a useful act of administration which must validly infer its legal consequences. The trustees were bound to adopt the alternative of repudiation or ratification, and at the same time to consult most effectually the interest of the pupil.

It is impossible, therefore, to establish that lesion has been committed against the pupil, the immediate heir, by the deed challenged; and the ratification of the deed, and possession under it, now precludes challenge. For it has been determined, by the most recent decisions on the subject, "That the institutes in the disposition quarrelled, who were nearest heirs “at the time, having attained possession, the same is not reducible at the "instance of a remoter heir," 18th November 1740, Hedderwick, Clk. Home.

2d, William the trustee, the father of the pursuer, and the uncle of the minor, homologated the trust deed. This William, next to the minor, was alioqui successurus; and his acceptance, joined to that of the minor, must remove all ground of challenge. If William, the uncle, had survived the minor, challenge would have been incompetent to him, for he could not have approbated the deed, so far as the nephew was concerned, and reprobated it so far as it contained the substitution. The one provision was as illegal as the other; and both must have fallen or none. To have sustained reduction at his instance would have been to reduce all those dispositions and sales of the heritable property which himself had authorised and subscribed. It is no answer to say, that he had no interest, in respect the succession had not opened to him. His situation is the same as that of a remoter heir of entail, who may challenge contravention; and there exists for this right the same necessity. To wait till the succession devolved, would be to allow the period to elapse during which alone the necessary facts could be proved; viz. that the granter, at the date of the deed, laboured under the disease of which he died, and did not walk unsupported to kirk and market.

That the minor could not himself homologate the settlement challenged, is indisputable, because" a pupil has no person in the legal sense "of the word; he is incapable of acting or even of consenting.' Erskine, lib. i. tit. 7. § 14.

Farther, the possession of the trustees cannot, in law, be held to be that of the minor, because they had a distinct personal interest to support the deed, in as much as, considerable legacies were eventually to arise to them under it. Besides they did not take those measures, by making up tutorial and curatorial inventaries, to invest themselves with the character of tutors and curators, which alone could identify them with their pupil, and render their actings his. They acted merely as trustees,

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in which character they had an interest distinct from that of their pupil. But it was ultra vires of the trustees to homologate the settlement, for such a proceeding amounts to alienation of heritage. Accordingly, if an heir ratify a death-bed deed, his creditors are entitled to set it aside under the act 1621, on the principle, that ratification is equivalent to a conveyance. Bank. lib. 3. tit. 4. § 44.

Such being in law the nature and amount of ratification, it was incompetent to the trustees, because they cannot authorise the alienation of a minor's heritage. Erskine, lib. 1. tit. 7. § 33. 8th March 1797, Cunninghame.

Even the possession of a wife along with her husband, does not infer homologation or consent on her part in such a case; 16th July 1672, Gray,-Stair.

So likewise in the case of a minor or infant. Dict. vol. I. p. 219. Bank. lib. 3. tit. 4. § 45.

In contemplation of law, the minor suffered lesion by the deed challenged; 1st, From the susbtitution of stranger heirs, in case he died in minority and without issue; and, 2d, From the distribution of the property among his children, in case of his dying in minority and leaving issue. In one event, his lawful heirs were altogether excluded; and, in the other, their interest was injured by a division of the estate different from that which the law would have declared. Accordingly, such lesion has been recognized in law. Dict. vol. i. p. 212.

Sir George Mackenzie (Treatise on Tailzies) likewise doubts whether a minor can, with consent of his curators, make a tailzie, "in respect that a minor may be justly said to be lesed, in that he wrongs his family "and nearest relations.'

That lesion against the immediate heir is not required to entitle the remoter to reduce, and that the latter pursues on the injury done to himself, may be considered to be determined. Erskine, b. 3. tit. 8. § 99. Bank. b. 4. tit. 4. § 34.

i.

And there are several decisions in support of this opinion. Dict. vol. p. 212. Rem. Dec. No. 33.

In the last place, nothing has been done by William Irvine to preclude the pursuer. He acted as trustee under the settlement, and not privato nomine; and, therefore, that which is essential to homologation is wanting, viz. intention and consent.

But into his intention it is unnecessary to enquire, because, till the death of the immediate heir, any challenge at his instance was incompetent; and there is not to be found an instance in which such a challenge has either been made or sustained. Till the death of the immediate heir, he has no interest; he has only a precarious and defeasible right, a spes successionis, on which he was not entitled to pursue. An heir of entail is in a different situation; and has a jus crediti in the estate, which entitles him to challenge every act which interferes with his right. The pursuer, however, does not in any shape represent William the

trustee.

The Court agreed in opinion with the Lord Ordinary. It was observed, that homologation cannot be inferred against a minor, even

where

where acting with consent of his tutors and curators; and in the present case, the introduction of strangers into the succession was lesion, of which the heir was entitled to complain; neither did the acceptance of the trust, and the proceedings under it by William the trustee, preclude him. Homologation implies a right to challenge; and till the death of the immediate heir, the remoter was not entitled to pursue.

The Court adhered to the interlocutor of the Lord Ordinary; and upon advising another petition and answers, adhered, (3d June 1808.)

WILLIAM BALLENY Trustee on the Estate of GEORGE Robb,

AGAINST

HENRY RAEBURN and Company.

RETENTION.-Creditors who had received from their debtor a vendition ex facie absolute, but had at the sametime granted a separate missive, obliging themselves to reconvey on payment of a certain debt, were found entitled to retain the right in security of another debt afterwards contracted.

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AEBURN and Company advanced to Robb L. 1300, by accepting two bills on London: In security for repayment of this sum, Robb gave them a vendition of the ship Turton which belonged to him. The vendition was ex facie absolute; but Raeburn and Company granted the following missive to Robb, (18th March 1806.) "We have this day,

at your desire, accepted two bills of this date, payable in London, at "four and six months, pro L. 650 each, drawn by you on us, and in"tended to be applied in payment of part of the price of the ship Levi"athan, purchased by you at London; and you having of this date con"veyed to us two third-parts of your ship Turton, in consideration of "the obligation so come under by us on your account, we hereby oblige ourselves, on the foresaid two bills being duly retired by you "when due, and produced to us discharged, to reconvey the said two third-parts of the said ship Turton to you, your heirs, or assignees ; "the expence of the conveyances to be equally divided betwixt you and

Robb retired both the bills; but in the meantime he had contracted other debts to Raeburn and Company to a much greater amount. He became bankrupt; and Balleny, the trustee upon his estate, brought an action in the Court of Admiralty against Raeburn and Company, for reconveyance of the two-thirds of the ship Turton. They pleaded a right to retain this property for their whole credit against Robb. The Judge Admiral found, (17th April 1807 :) "That as the defenders are "not possessors only, but fully vested in the property of the two-thirds "of the ship Turton, they are entitled to refuse reconveying the said " right of property to the pursuer, till the debts due to them by George "Robb shall be paid."

The pursuer presented a bill of advocation; and the Lord Ordinary on the bills reported the case on memorials.

It is a general rule of law, that there can be no constitution of hypothec or pledge, without express consent of the debtor. Mere possession of a subject bya creditor is not sufficient to constitute this right. But consent to impignorate for one debt, is no consent to impignorate for any other debt. A pledge, therefore, is liable only to that debt for which it is pledged, not for all debt due by the pledger to the pledgee.

Even in the few exceptions to the general rule that are admitted by our law, there is no general hypothec, but a hypothec only for a certain debt or kind of debt, as in the case of a writer's hypothec on papers. Orme against Barclay, 18th November 1778, in that of a manufacturer's hypothec on goods; Harper against Faulds, 27th January 1791.

In this case, though the vendition being accompanied, simul et semel, with an obligation to reconvey on payment of a particular debt, was no more than an impignoration. In a question between the parties themselves, it can make no difference, that the different parts of this contract were contained in separate writings, still it was one contract of impignoration.

As the debt for which the hypothec was constituted has been extinguished, the hypothec must therefore be extinguished also; and the defender has nothing but bare possession, which gives him no right to

retain.

Argument for defenders.

A disposition, ex facie absolute, gives a good security for future advances for the disponee to the disponer; Riddle against Creditors of Niblie, 16th February 1782.

But here there is a vendition, which is a disposition of a ship ex facie absolute. In the cases of pledge or hypothec quoted by the pursuer, the creditor had only the possession, not the property of the subject, but here he has the property; and it must remain in him till he executes a con

veyance.

But this he is not bound to do while the debts due to him are unpaid. The case of Dougal against Gordon, 17th November 1795, is exactly similar to the present, only substituting assignation of a bond for vendition of a ship.

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It was also pleaded for the defenders, that they had given credit to Robb on a full mutual understanding, that they were to be secured by the vendition; and they further pleaded, that L. 300 of the debt due to them by him was in truth a part of the original debt, as it had been advanced in order to retire one of the bills for L. 650. Both these assertions were denied; and the Court, in giving their opinions, did not think it necessary to take them into consideration. Upon the reasons contained in the first part of the defenders argument, with the exception of one Judge, their Lordships, (7th June 1808,) "refused the bill.”

ARRESTMENT-An admiralty arrestment of a vessel on the stocks is good.

JAMES BALFOUR, a creditor of John Ferguson, on the 12th March,

of

attached by an admiralty arrestment a vessel which it appeared belonged to Ferguson. The vessel was upon the stocks unfinished, and of course without masts. The arrestment was executed by affixing a copy at and upon the stern of the said sloop or vessel, she having yet no masts. After this arrestment, Ferguson, in conjunction with the trustee on the estate of Nairne and Company, who pretended to the property the vessel, or at least a lien upon her in security of a sum advanced by them in part of the expence of building her, sold her to John Stein, who sold her to John Miller. Balfour presented a petition to the depute Admiral, praying that Ferguson might be imprisoned for breach of arrestment, and the other parties prohibited from carrying off the vessel, which they had by that time launched, till they found security to make it forthcoming. The Judge-Admiral, on the ground that the vessel belonged to the estate of Nairne and Company, assoilzied the defenders from this action.

Balfour advocated the cause; and the Lord Ordinary having remitted simpliciter to the Judge-Admiral, the cause came before the Inner-House by petition and answers. The Court had no doubt that the property of the ship remained with Ferguson, notwithstanding the transaction with Nairne and Company. But a question was raised about the validity of the arrestment.

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