Removing sustained at the instance of a minor without a sasine, against his curator, et ante redditas rationes.
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In a removing, by the L. Haddo contra L. Ludquharn, from the house and manor place of Haddo, and the mains thereof, pursued by the minor, within the years of his minority, against Ludquharn, being his curator, standing sine quo non; it being alleged by the curator, That no action ought to be sustained at the pursuer's instance, seeing he was not seized in the lands libelled; and the minor replying, That this exception ought to be repelled, as not competent to be proponed by the curator, against his own minor, who ought to have obtained himself infeft; and the curator answering, That stante curatela, no such action of removing ought to be sustained at the minor's instance, against his own curator;—the Lords repelled the exception, and duply, and sustained the action of removing, at the minor's instance against his curator sine quo non, etiam durante cura, and decerned him to remove both from house and mains; seeing the minor was married, and might crave his house to himself and his wife to dwell in. But for removing from the land, I consider not the reason, thereof, that in law, the curator might be removed from the mains, his office sending; albeit, if the minor had wanted maintainance, be might have had competent action to have a portion of the living being decerned by the Judge to be assigned to him for sustentation of himself and his wife; but it was not pursued hoc modo, and so the curator, before count and reckoning, may piece and piece be removed from the minor's whole estate, which is hard in law.
Act. Baird.Alt. Mowat.Clerk, Gibson.
Durie, p. 587.*** Auchinleck reports this case:
The Laird of Haddo being but 20 years of age, and married, pursues the Laird of Ludquharn his curator sine quo non, upon a warning made at Whit-sunday 1630, to remove from his house and mains of Haddo. It is alleged by the defender, That he cannot be decerned to remove, because the pursuer was not seised, and so had no title. 2do, He was minor, and so could not pursue his curator to quit a part of his estate, until he made count of the whole intromission, whereof the mains was a part, which counts were presently depending. To the first part it was replied, That his house and yards were equivalent to his aliment, for which he might pursue his curator; for the same reason, the second reason of the exception ought to be repelled, and Ludquharn cannot object to the pursuer, that he is not seised, and that he was not served or seised, he being his chief curator, and keeper of all his writs whereby he might seek service. The Lords repelled the exceptions in respect of the replies.
