Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TUTOR AND CURATOR - SOLIDUM ET PRO RATA.
Subject_3 A single curator may interpose for the evident utility of the minor, although, by the nomination, the right of acting be vested in the majority who dissent.

Henry Davidson of Tulloch
v.
Sir Hector M'Kenzie and his Curators

Date: 18 February 1772

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[Faculty Collection, VI. 13; Dict. 14, 705.]

Auchinleck. The question is, Whether there was a completed bargain with Sir Alexander M'Kenzie? According to the entail, a sale was only allowed when the estate came to be affected by adjudication or otherwise: there was no adjudication here. The minor and one of his curators oppose the sale: the curator offers to furnish the money and pay the debt: this is sufficient. If the other curators oppose this, we can remove them as suspect.

Gardenston. Sir Alexander M'Kenzie had no power to sell the estate unless causa cognita.

President. The sale would have been valid against Sir Alexander M'Kenzie: but Sir Hector does not represent him. Without an adjudication there can be no sale. How can there be an adjudication if Sir Hector is willing to pay?

On the 18th February 1772, the Lords found that Sir Hector M'Kenzie is not bound to sell, in respect he does not represent Sir Alexander; and found Sir Hector entitled, upon payment, to stop the constitution of the debts in Mr Davidson's person.

8th July 1772, adhered.

Act. H. Dundas. Alt. Ilay Campbell. Reporter, Monboddo.