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A Sheriff clerk's assertion, that a person judicially accepted the office of curator, found not sufficient without his (the party's) signing the act of curatory.
Fol. Dic. v. 2. p. 248. Harcarse, (Tutors & Curators.) No 992. p. 280.*** Sir P. Home reports this case:
Gabriel Porterfield of Hapland, having pursued James Hamilton of Aikenhead, as curator to the deceased Alexander Porterfield his brother, for the price of his brother's stock and plenishing, sold by Aikenhead to the Laird of Ralstoun, and for instructing that Aikenhead was a curator, produced an extract of the act of curatory out of the Commissary Court books of Glasgow, bearing, that the said Alexander Porterfield, the pursuer's brother, did compear, and elect Aikenhead one of the curators, and that he did compear and accept of the office, and gave his oath de fideli administratione, and for instructing that Aikenhead did act as curator, produced a contract betwixt him and Ralstoun, whereby he disponed to him the foresaid stock and plenishing; alleged for the defender, That the warrant of the act of curatory not being subscribed by the defender, the extract could not instruct his acceptance of the office, especially being but the assertion of a clerk of an Inferior Court; and the contract betwixt Ralstoun and the defender, by which he dispones to Ralstoun the stock and plenishing, cannot prove that he accepted of the office, or acted as a curator; seeing it appear only, that he as having a factory from the minor and curator, did enter into the contract, and disponed the stock to Ralstoun, and the defender is not obliged to produce the factory; but seeing the pursuer makes use of that contract, to instruct the defender's intromission, which bears only that he acted as factor, and not as a curator, the pursuer cannot controvert it, seeing quod approbat non reprobat, and it could not be imagined that the defender had granted a disposition as curator, seeing he could not dispone as curator, but only consent to the minor's disposition, so that the disposition behoved to have been granted as factor, and the curator having counted to the pursuer, and obtained a discharge, the defender as factor could not be further liable;—the Lords sustained the allegeance proponed for the defender against the act of curatory, as not being subscribed by Aikenhead, and likewise sustained the other allegeance, bearings, that by the contract, it appears Aikenhead acted as having a commission and factory from the minor and his curator, and found no necessity for Aikenhead to produce the factory.
