The Court do not interpone their authority to the curator of a lunatic, making application to be allowed to borrow money on his estate.
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William Henderson, surgeon in the royal navy, purchased the lands of Catlins, which exhausted all the money he possessed, and afterwards granted an heritable security over them to a certain extent. His income consisted of the balance of the rents of these lands, and his half pay as a surgeon. He granted a lease, by which he incurred certain obligations in favour of the tenant. These were not implemented; and soon after the lease was entered into Henderson became insane.
His brother John applied to the Court, and was appointed curator bonis (July 2, 1801), having found caution for his management, in terms of the act of sederunt.
As there seemed to be no prospect of convalescence, a petition was presented to the Court in the name of the curator, stating, that the creditor in the heritable bond had applied for payment; that the tenant had required implement of the prestations in the lease, and threatened an action of damages; that the superior had demanded a composition for the proprietor's entry, otherwise he would raise a declarator of non-entry; and that the lands were found, upon investigation, to be charged with too great a proportion of stipend, which made it necessary to raise a reduction of the decreet of locality.
In these circumstances of peculiar urgency, the petitioner craved the authority of the Court to borrow the sum of £,500, which act of extraordinary administration, he stated, was absolutely necessary in the situation of his brother's s affairs, and had been authorised by the practice of the Court; Home 7th March l793, voce Tutor And Pupil.
But the petition was refused.
It was thought that some of the matters contained in this application fell under the ordinary powers of a curator bonis. But, at any rate, it was conceived to be improper to interfere in the management of estates; and some of the Judges seemed to insinuate, that the Court had gone too far in the case of Home, quoted by the petitioner.
For the Petitioner, Corbet.Agent, Wm. Johnstone.Clerk, Pringle.
Fac. Coll. No. 77. p. 173.
