[1707] Mor 8971
Subject_1 MINOR.
Subject_2 SECT. V. Minor wanting Curators.
Date: Alexander Alison, Writer to the Signet,
v.
The Children of William Trent of Pitcullo
23 July 1707
Case No.No 89.
A confirmed testament wherein the nearest of kin, who were pupils, were surrogated to the procurator-fiscal, without being authorised by tutors for that effect, sustained notwithstanding of the enactment in the act, 16th Parl. 1690.
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In a competition of the Creditors of the Laird of Forret, the Children of the deceased William Trent of Pitcullo, having founded on an assignation granted by the common debtor of his Lady's jointure to their father, established in their person by confirmation before the Commissary of St Andrews; Alexander Alison objected, That no respect could be had to their title, because it bears them who are pupils to be surrogated in the confirmed testament to the Procurator-fiscal, without being authorised by tutors for that effect, which is contrary to the act 26th, Parl. 1690; quod jure prohibente fit, est ipso jure nullum.
Answered; It is jus tertii to Mr Alison to make such an objection; the act of Parliament being chiefly designed to prevent vexation occasioned to the lieges by charges of horning at the Fiscal's instance. And here the Fiscal was not decerned after a charge given to the nearest of kin; but only the Commissary continues the old style of confirmation, ‘Decerning the Fiscal to the be hoof of the Children.’ Now, seeing these are actually confirmed, what doth it matter whether they are said to be surrogated to the Fiscal or not? Yea, the Commissaries of Edinburgh always used that old style, except within these two or three years, and it is still used in all inferior Commissariots; 2do, It is not competent to any person to allege against a pupil the want of tutors, except in a process only; for in other things potest conditionem suam meliorem facere, without the authority of tutors; nor again, does the act of Parliament require precisely tutors and curators to concur in the confirmation, but only enumerates the persons who may be confirmed, excluding others.
Replied; It is a necessary security for all parties having interest, that a confirmation intrinsically null be not sustained; so that it is not jus tertii, but exclusivum juris agentis. And inferior Commissaries should not be encouraged to continue this informal method after the Commissaries of Edinburgh have laid it aside; for consuetudo non usque adeo sui valitura momento ut aut ratio nem vincat aut legem.
The Lords repelled the nullity, and sustained the Children's title.
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