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Scottish Court of Session Decisions >>
Gibsone, Brother to Durie, v Haliburton of Innerleith. [1670] 2 Brn 499 (22 July 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Brn020499-0840.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Gibsone, Brother to Durie, v. Haliburton of Innerleith
Date: 22 July 1670
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This was a charge upon a bond granted by the defender to Mr. James Reid, and assigned to the charger by him; which was suspended, 1mo, Because the time of the granting thereof he was a minor, having curators, and he gave the bond without their consent. answered, Ought to be repelled, in respect the bond is not only subscribed by himself but by two of his curators, which makes a quorum. replied, That will not fortify the bond, because by his act of curatory three are appointed only to be a quorum.
He is ordained to produce the act of curatory before answer.
The second reason of suspension, (and he had also a reduction on that same reason,) was lesion by granting that bond. Answered, He can never pretend lesion, because it is offered to be proven that this debt was a debt owing by his father, (to whom he was heir,) and that there was a decreet recovered against him at the cedent's instance, for payment of that debt as representing his father. Replied, That decreet can prove nothing, because discharged by the cedent. Duplied, Cannot be heard, because if any such discharge be, the same was granted in contemplation of this bond now charged upon; and this I offer me to prove by the suspender, and those who were at that time his curators, their oaths. Triplied, Nullo modo relevat by his curators' oaths to his prejudice; neither will he suffer them to depone.
They were to have the Lords' answer upon this if his curators should depone, yea or no.
