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William of Lamington being pursued upon a contract entered into with his uncle Robert, whereby he was obliged to pay 600 merks yearly to his uncle; he proponed the exception of minority and lesion.
Alleged for the pursuer: The reason of minority and lesion is only competent by way of revocation and reduction intra annos utiles; both which have been omitted by the defender.
Answered for the defender: The contract is ipso jure null without revocation, as being entered into by him without consent of his grandfather, who was administrator in law, and in place of curator to him.
Replied: Though a father be administrator in law to his children, in place of curator, so as deeds without his consent are null, that cannot be extended to a grandfather; seeing it is usual for minors to chuse curators when they have a grandfather, but not while the father lives, and a grandfather could not be liable for omissions; so that he not being liable as tutor passivè, he can have no active title qua grandfather.
The Lords found, that the want of the grandfather's consent and subscription did not make the contract null ipso jure, and repelled the defence, in regard no revocation or reduction was raised in due time.
