What a Minor cannot do even with consent of his Curators.
Mrs Margaret Shaw v. Sir John Shaw of Greenock
Date: 24 January 1706 Case No. No 74.
A bond of provision in favour of a daughter was so qualified, that 'she should not assign gratuitously, and dying without heirs of her body, or without disposing for onerous causes, the same should return to the granter's heir.' She pursuing a constitution of the debt against the heir, was found entitled to uplift in her minority only the annualrents, and not the principal sum, unless for an onerous cause.
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Mrs Margaret Shaw and her curator ad litem, having pursued Sir John her brother, for payment of the principal sum and annualrents contained in her bond of provision; the defender non fecit vim as to the annualrents, but alleged he could not be obliged to pay the principal sum, being a debt fairly acknowledged and secured beyond exception, to a curator ad litem, where there was no lis, or necessary action; especially considering, that the bond is so qualified, that it was not in the creditor's power to assign without an onerous cause; and she dying without lawful heirs of her body, or without disposing for onerous causes, the portion should return to the defender; whereby he has an evident interest to retain, at least to elide any process intented in minority without consent of curators having an universal authority.
Replied for the pursuer; The defender is only a substitute in certain events; and albeit the pursuer cannot assign but for onerous causes, she may exact payment, at least with a quality that the principal sum shall be re-employed in the terms of the substitution; as was decided betwixt the Lord Ballenden and the Earl of Roxburgh; and in the case of Mrs Margaret Douglas, against Douglass of Bridgefoord.
Duplied for the defender, Neither is the pursuer a simple fiar, nor the defender a naked substitute, nor is the caution offered sufficient to hinder the alteration of the destination. For the money being uplifted and discharged, although once re-employed in the same terms, it were easy by a new remove to evacuate the conditions of the bond to the prejudice of the defender; 2do, It was found, 25th February 1663, betwixt James and Marjory Aikenheads, that a sum assigned to James Aikenhead and his heirs, which failing, to the said Marjory and her heirs, could not be uplifted by him in his minority; voce Writ.
The Lords found the defender liable for the sums in the bond of provision; but that the pursuer could not uplift the principal, but only the annualrents, in her minority, unless for an onerous cause; and therefore decerned in the constitution of the debt against the defender, superceding execution as to the principal during the minority except for onerous causes.
