Whether liable to Penalties. - Whether liable to be imprisoned for Debt. - Whether capable of being a Messenger. - Whether he may be convened as a haver of Writs. - Whether Decree may pass against him. - Whether bound to depone on the verity of his Debt. - Power of the Court to prevent undue influence in chusing Curators.
Bower, Complainer
Date: 29 July 1750 Case No. No 12.
Power competent to the Lords, in case of undue influence on a minor in the election of his curators.
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Bower of Kincaldrum settled his estate, failing heirs of his own body, upon Alexander Bower eldest son of Bower of Easter Methney, and the heirs-male of his body; whom failing, upon Patrick Bower, eldest son to Bower of Kinnettles, &c.
About a year thereafter, Kincaldrum died without issue, whereby the succession opened to Alexander Bower, son of Easter Methney, an infant, whose affairs were managed by his father during his life; but upon his father's death, while he was about ten years of age, Archibald Bower, author of the History of the Popes, his nearest agnate, residing in England, and not being in a situation that made it fit for him to claim the office of tutor, Bower of Kinnettles the next agnate, and whose family had the next interest in the estate, obtained a gift of tutory dative; but means were found to disappoint him of the custody of the pupil's person, by certain of his relations of the Popish religion, who carried him to France, where he was settled in the Scots College at Paris; and as soon as he arrived at the age of 14, a project was formed for their getting the management of his estate, which till now remained with Kinnettles the tutor-dative.
On July 12th 1749, there was a nomination signed by the boy at Paris, whereby he named and elected to be his curators five or six persons, and the accepters or survivors of them; and because he could not himself attend, he authorised an agent to raise the proper precepts or summonses for expeding the act of curatory. Accordingly such process was carried on before the Court of Session, where, as a matter of course passing among the regulations, it goes on with less observation than if it were before the Judge Ordinary; and at the same time, the persons summoned as nearest of kin of the father's side were really not the nearest but very remote relations; but on the mother's side there was no hazard in taking the nearest, they being of the popish religion.
But when the matter was brought so far, that at a calling on the 23d June 1750, the pursuer's procurator represented that the whole curators had accepted and given their oath de fideli, and craved they might be authorised, Kinnettles, from whom, though the nearest agnate, the matter had been kept a dead secret, having got notice of these proceedings, appeared by his procurator, representing, That he was nearest agnate, and objected to the proceedings as all null, in respect he, though a nearer agnate than any of those cited as such, had not been called; and here the process was dropped; the plot hatched in the Scots College at Paris was now discovered, and could not be carried into execution.
Upon this Kinnettles, whose interest in the minor and his estate has been a bove stated, applied to the Lords, setting forth the case, with a variety of other circumstances in relation to the singular management of the process, and craving that the Lords would, in terms of their act of sederunt of February 13th 1730, appoint a factor upon the minor's estate, signifying his own willingness to accept of the office, and craving that the Lords would at the same time authorise him to bestow such expense as should be proper or necessary towards recovering and bringing home the person of the minor; and give such other relief to the petitioner, on behalf of the minor his late pupil, as to their Lordships should seem meet.
On advising this petition, the Lords, on June 29th 1750, “Appointed the petitioner curator bonis to the said minor, upon his finding caution in terms of the act of sederunt; and in the mean time empowered him to lay out such sums of money as he should be advised were necessary towards recovering the person of the minor; and in the mean time stopped all further procedure in the process for election of curators.”
The ground of law on which the Lords sisted further procedure in the process for election of curators was this, that wherever there is suspicion of undue management, or of imposition on the minor, it is competent to the Court ex officio, in order to prevent undue influence, to sequestrate the person of the minor for some time; whereof there is a precedent in the case of Sir Robert Gordon, No 10. p. 8910. And accordingly the doers for the minor in this case were let to know, that no curator of his choice could be appointed till he should appear in Court.
Kilkerran, (Minor.) No 13. p. 354.*** D. Falconer reports this case:
1750. July 31.—William Bower of Kinnettles shewed, that his relation Alexander Bower, son of Alexander Bower of Easter Methney, had, by disposition made by Alexander Bower of Kincaldrum, succeeded to the said estate, the management whereof was taken up by his father Easter Methney, as his administrator in law, who continued it till his death in 1746, when he succeeded also to Easter Methney; whereupon the petitioner, being his nearest agnate, except Mr Archibald Bower, author of the History of the Popes, who was not in Scotland, obtained a gift of tutory, and entered upon the administration; but that an aunt of the pupil's, who had his person in her custody, deceived the petitioner, and carried the pupil abroad, and placed him in the Scots College in Paris, to be educated in the Popish religion.
That Alexander Bower's pupillarity being now expired, an action was brought in his name, before the Court of Session, for the choice of curators, wherein were called certain persons, not his nearest relations on the father's side; and as the said action had proceeded, so far as it was carried on, without the appearance of any defender, several other irregularities had been committed; the intent thereof being, that by getting a nomination authorised, without the knowledge of the minor's relations on the father's side, his estate might be put into a management, whereby he might be supported in the said scheme of a Popish education. That when no more remained but the authorising of the curators, the petitioner having got notice of what was carrying on, appeared, and alleged he himself was a nearer agnate than any cited, and offered to object to the nomination, whereupon he was appointed to prove his propinquity and there the process stopt.
That, as there was no authority to manage the minor's estate, he now prayed the Lords to name him factor loco curatoris, and to empower him to lay out money for bringing home the minor.
“The Lords discharged any further procedure in the action, and appointed the petitioner factor, granting warrant to him to lay out a sum of money for bringing home the minor.” See Tutor and Pupil.
Petitioner, W. Grant.
D. Falconer, v. 2. No. 156. p. 180.
