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The Laird of Haddo convened the Laird of Ludquhair's curators for exhibition and delivery of his evidents, to the effect that he might be entered to his lands by his superiors of whom he held them; and also for defending of himself in sundry processes pursued against him. After they were exhibited, the Lords found that they should not be delivered to the minor, being yet in curatela, notwithstanding of the necessity he had of them; but ordained that they should be kept in retentis by the clerk, who should lend him out such of them as he had use for, upon surety to redeliver them when he had done his turn with them.
Spottiswood, p. 347.*** Durie reports this case:
L. Haddo a minor within 21 years, having obtained decree, against Ludquhairn his curator sine quo non, durante curatela, and without concourse of any other curator, for delivery of the writs of his lands to him; and Ludquhairn suspending, that during his office he could not be compelled to deliver the same, especially seeing the writs were all exhibited before the Lords, and that they were in custody in the Lords' Clerk's hands, and that the office of curatory was not yet expired, and that there were actions of tutor-counts hinc ide depending betwixt them, before the ending whereof the evidents could not be given up to the minor, for they behoved to be also patent for instructing the articles of the account; the Lords found, that in respect these writs were consigned in the clerk's hands, and that the office of curatory was not yet expired, that the curator could not be compelled in law to deliver the writs to his minor, but that they ought to remain there while the minor was Major, whereby the curator might have a valid discharge thereon, which he could not lawfully now give, and would not supply it by caution: And because the minor desired, that he might have up the evidents of such of his lands as he held by other holding than ward, whereby he might obtain himself entered and infeft in the same, and so eschew the danger of nonentry; the Lords found (albeit the curator and his cautioner were liable for these dangers to the minor) yet to eschew such prejudice to the minor, and that he might not be put to such action, that he might borrow, and take upon trust from the Clerk any of his writs whereof he had use, and which he would desire for that effect, upon good security to the clerk, to re-deliver the same to him again, at the day unto the which they should be borrowed. This was done to eschew the minor's prejudice; but in legal manner they found by process, that the minor could not crave them, the curator not being removed, nor pursued as suspect; for the minor had diverted from his curator foresaid, and was married without the curators' advice, whereby they agreed not in their business.
Act. Nicolson & Mowat.Alt. Stuart & Burnet, minor.
Durie, p. 508.
