A reduction on minority and lesion was not sustained, not being raised within the anni utiles, tho' the pursuer had revoked within that time.
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Sir James Ramsay having charged Maxwell of Carnsalloch upon a bond granted by him, he suspends and raises reduction; 1mo, Upon minority and lesion, and that he had revoked intra annos utiles, though he had not raised reduction; 2do, That he had curators, and they not consenting; and produced an act of curatory, wherein five or six persons were nominated by him to be curators, conjunctly and severally ad lites, and conjunctly ad negotia, or at least three of them to be a quorum, and that two accepted, which was sufficient to authorise him.
The Lords repelled the first defence, there being no reduction raised intra annos utiles, and repelled the second reason, in respect of the tenor of the act of curatory; and found that thereby there could be no curators, unless three had accepted. See Solidum Et Pro Rata.
Fol. Dic. v. 1. p. 586. Stair, v. 2. p. 55,*** Gosford reports this case:
1672. February 25.—Sir James Ramsay having charged Carnsalloch upon a bond, wherein he was cautioner for Maxwell of Brackenside for the sum of 12,000 merks, he did suspend upon two reasons, first, That he was minor when he had subscribed, and had revoked intra annos utiles. To which it was answered, That a simple revocation was not sufficient unless he had intented a reduction and cited the charger, which was not done until 20 years after the revocation. This reason was repelled in respect of the answer, and it was found necessary that a reduction should have been raised intra annos utiles, to the effect the minor might have been restored in integrum by a decreet. The second reason was, that the suspender was minor habens curatores, who did not consent, therefore the bond was null ipso jure, for which an act of curatory was produced. It was answered, That it was clear by the act of curatory, that the suspender had nominated seven persons to be curators conjunctly, or any three of them to be a quorum, whereof Brackenside was another specially named, who were to be sine quibus non; but so it is, never did any accept but two, which not being a quorum, and having no power to administrate as curators, the act itself was void and null. 2do, If it should be sustained, that the two accepting were empowered; then the principal in the bond, viz. Brackenside subscribing with Carnsalloeh was equivalent to a consent.
The Lords did find, that the act of curatory being conceived as said is, was void and null, and the minor in that condition as if he had no curators, quo casu, he not having intented reduction intra annos utiles, the bond was obligatory. But as to the second, That Brackenside who was one of the consenting curators, had subscribed the bond, they found it not equivalent to a consent and sufficient to authorise the suspender who was a minor, seeing Brackenside was principal debtor, and the minor was bound not in rem suam, but as cautioner for him, as was lately decided in a case, Sir Geerge M'Kenzie against John Fairholm, No 72. p. 8959, Sir George had subscribed as cautioner for his father when he was minor.
