Who must be Cited in a process against Minors, and who Certiorated in Extrajudicial Steps against them.
Dalgleish v. Hamilton
1752.
Feb.
18. &
June26. Case No. No 16.
The Lords sustained the objection to a sale of a minor's lands, that the tutors and curators of the minor were not called, and found they could not be called by a diligence.
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Dalgleish, as creditor to James Hamilton late provost of Kinghorn, brought a process of sale against Hamilton his son and heir, of certain houses and tenements lying about Kinghorn; in which it was objected by the defender, that the process could not proceed, in respect the defender was a minor, and his tutors and curators were not called.
The pursuer having applied to the Ordinary, for a diligence to cite the tutors and curators, the Ordinary stated the case verbally to the Lords; and the Lords, in respect the defender was minor and not pupil, having advised the Ordinary to grant diligence, he granted it accordingly.
They considered the case of minor and pupil to be different. A tutor acts for the pupil who is himself considered nobody; whereas a minor acts with the curator; and as a husband may be called by a diligence, so a curator might.
But, upon advising petition and answers, the Lords 'sustained the objection to the sale, that the tutors and curators of the minor were not called, and found they could not be called by a diligence.
Fol. Dic. v. 1. p. 129. Kilkerran, (Process) No 13. p. 439.
