Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MINOR.
Subject_3 The Supreme Court would not authorise a debtor to pay his debt to a minor not having curators.

John Kirkman
v.
Joseph Pym

Date: 1 August 1782

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[Fac. Coll. IX. 99; Dict. 8977.]

Braxfield. If a minor without curators may come to a court of law, and receive money from debtors, the consequence will be dangerous indeed. The civil law lays it down, that one may pay safely auctore prætore: and so he may, for then payment will not be exacted a second time. But it remains to consider when the judge ought to authorise such payment.

Monboddo. This might be a good system of law, if we had power to make law; but I do not see that the Court can say to a debtor, We will authorise you to keep back the money from a minor without curators.

Hailes. In extraordinary cases, the judges might possibly be authorised to invent extraordinary remedies; but there is nothing extraordinary here. The minor may, when he pleases, receive his money, by the simple act of choosing curators, who will concur with him in granting a discharge. This he avoids doing: and, merely to save a very little trouble or delay, he insists for a determination which might be of dangerous precedent.

Gardenston. I have certainly been in a mistake if a minor without curators may not do every thing that majors can do: if you do not allow a minor to uplift money, will you allow him to levy rents or receive interest?

President. As to rents and interests, they are out of the question; for the levying and receiving them are acts of ordinary administration: but here the question is as to principal sums. I do not see that the Court can interfere; and, indeed, why should we interfere when there may be a danger to the minor, and when he may, without danger, act by his curators?

Braxfield. In the civil law, a man does not pay safely to a minor, if he pays voluntarily: could it be the meaning of that law that a minor should have the power of taking decreet, causa non cognita?

Monboddo. If that be the Roman law, I have forgot it. A man, by that law, might have paid voluntarily to a minor, without curators, and would have been perfectly safe in so doing.

Kaimes. The judges of the Court of Session are the guardians of all minors. A minor wishes to sell his estate; he may do it, but with risk to the purchaser: the purchaser hesitates in paying; will the Court blindly interpose, and ordain the money to be paid, although there should be a certainty of its being to be instantly squandered?

On the 1st August 1782, “The Lords found that the Court ought not to interpose to authorise payment to Kirkman, a minor without curators; but remitted to the Ordinary to hear parties on the offer of finding security.”

Act. R. Cullen. Alt. H. Erskine. Reporter, Elliock.

Diss. Stonefield, Gardenston, Monboddo.