Acting in one Capacity, whether it infers consent necessary to be given in another Capacity.
L Bargenie v. His Bairns
Date: 11 March 1623 Case No. No 49.
Subscription of a curator as party, and not as curator, is no consent as curator.
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Where a curator's subscription, who is not designed in the contract curator, but upon the contrary, is a principal distinct party contracter with the minor, on the other part, is holden as no subscription of a curator.
Alleged, Josias, who is curator, once having subscribed, that imports his consent to the obligements therein contained, and one subscription may serve, both for his consent to the minor's obligement, and also for fulfilling the obligements to the minor, et in dubiis iuterpretatio fieri debet ut actus valeat, non ut pereat. Replied, The subscription must be ruled according to the contracting of the parties, and only be relative thereto.
Repell the allegeance.
Clerk, Durie.
Fol. Dic. v. 1. p. 379. Nicolson, MS. No 553. p. 381.
