Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Laird and Lady Rentone
v.
George Stewart

Date: 17 November 1649

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In the action of suspension and reduction at the Laird and Lady Rentone their instance against George Stewart, pursevant, the reason [was] That the bond given by the lady, while she was in familia paterna, without the consent of her father, as lawful administrator to her, should be null, as that bond which is given by a minor who had curators, if it be given without their consent. The Lords found it relevant, notwithstanding it was alleged, That the father's administration is not of that authority that a curator's is, since the curator is taken sworn de fideli administratione, and likewise sets caution. Item, That, by our practique and custom in matters of consequence, curators may be given vivo patre by them who gift any thing to a pupil or a minor, or to secure any bargain with a pupil or minor; and also, if a father be to redeem his own gift from a minor: et curatorem habenti curator non datur, nisi prior sit remotus; because reipublicæ interest that the king's dispositions and deeds of any part of the principality, during the prince his less age, as administrator, should stand good and lawful. And, to descend to private men, it is very usual that the father does things as lawfully and lovingly for his bairn as any curator can do; and, as he will defend him from injury and wrong in body, so he will keep him from harm and skaith through deception and fraud in matters of subscribing bond or discharge: as is in L. Cumfuriosus 7 cod. de Cur. Fur. Quis enim talis affectus extraneus inveniatur ut vincat paternum? Vel, cui alii credendum est res liberorum gubernandas, parentibus derelictis? Et pater videtur a Deo tutor naturalis datus; ab homine vero, testamentarius; a lege, tutor legitimus; et a patre patrice, dativus. Nec datur restitutio in integrum contra patrem, propter debitam reverentiam.—L. 2, Cod. qui et adversus quos. For the father gives a tutor testamentar, who is not obliged to find caution de, fideli administratione, secutus ejus fidem ut suam. But it would be here provided against the father, who may be prodigus; and suppose he be not so declared, that, in the case he contract so much debt that his estate be all comprised from him; the minor, in his adventitious goods, be not prejudged. Item, If a minor use trade or merchandise. Item, If the father be absent forth of the country, so that the minor's business cannot be expede, &c. Neither think I this exception of nullity can be well received by way of suspension, as in some nullities is usual, being contained in a writ itself; as, namely, where a husband and wife subscribe a bond for borrowed money; because, in our case, it must abide probation, both of the father's life, the time of the minor's subscribing, and that he was minor then; for that which the Romans called senatus consultum Macedonianum is of long last, donee filiusfam. fuerit emancipatus et a patria potestate liberatus.

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