Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 TUTORS AND CURATORS.

Welsh
v.
Welsh

Date: 10 March 1778

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Actio suspecti tutoris, by the civil law, was actio popularis; but, by the Scotch law, it is actio popularis only to any of the blood relations, but no farther. See Fount. 29th March 1682, Trotter; see also Lord Stair, B. 1, tit. 6, § 26; Bank. B. 1, tit. 7, § 34.

James Cornfoot died, leaving a beneficial tack, which had 40 years to run, to his only child, Nathan, who, after pupillarity, chose his mother and her second husband, James Welsh, as his curators,* and John Welsh, brother to James, was taken as cautioner.

* This was plainly irregular; no person, under cura, can be curator to another.

But James’s affairs having gone into disorder, and he having become a notour bankrupt, John, libelling on this, and on the mismanagement of the curators, brought an action to have it found that he was free of his caution, not only in time coming but from the date of a protest he had taken against the minor and his nearest of kin, requiring them to bring an action for removing the curators; which action he now brought, and libelled accordingly. The nearest of kin lying by, and declining to meddle, compearance was made before the Lord Hailes, Ordinary, both for the curators and minors;† they consented to the first, but denied the competency of the last: and his Lordship having taken the point to report, they failed to give in any information; so the Lords took it up ex parte. In the first place, they unanimously freed the cautioner from his caution, from the date of the protest, and, in respect thereof, they ordained the curators to find new caution within ten days, with certification, otherways that they would remove them.

† It is thought, that where a minor in any action appears incidentally to be in danger, the Lords may, and ought to interpose for his defence.

And they having failed to do so, “the Lords removed the curators from their office of curatory, as suspect, and found both minor and curators, conjunctly and severally, liable to the pursuer in expenses, reserving to the minor, for such part as he might pay thereof, relief against the curators.”