Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. IV.

What a Minor cannot do even with consent of his Curators.

Carstairs
v.
Moncreiff

Date: 20 February 1672
Case No. No 73.

A bond of caution, granted by a minor, with consent of tutors, was sustained.

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Mr David Moncreiff being debtor to James Brown in a sum of money, he did procure William Moncreiff his son as principal, and Sir John Moncreiff as cautioner, to grant a bond to the said James Brown for the said sum; and Sir John being minor, the bond is granted with consent of Mr David as his curator; and being now assigned to Robert Carstairs, he charges Sir John, who suspends, upon this reason, that the bond is null, as being done by a minor having curators, without their consent; and as to the consent adhibited by Mr David Moncreiff, it is null, because no curator can authorise his minor in rem suam to the curator's own behoof; and it is offered to be proven that this curator was debtor in the same sum before, and caused his own son grant this bond, and his minor as cautioner in place thereof, whereby the curator himself was liberated of the prior bond. It was answered, That albeit a curator cannot authorise his minor to any deed done directly in favours of the curator, as if the minor should grant a bond to his curator, or should be cautioner for his curator; yet, where the curators behoof is but indirect and consequential, neither our custom, nor the Roman law, from whence it is drawn, prohibits or annuls such consents of curators, as is clear in the case of a tutor or curators authorising a pupil to enter heir to a person who was debtor to the tutor, that yet his consent was valid, l. 1. quanquam D. De authoritate & consensu tutorum; and if this were drawn in consequence to every remote advantage of curators, neither could creditors be secured, nor minors authorized. It was replied, That the behoof of the curator is not remote in this case, neither could the creditor pretend to be in bona fide, as not knowing the curator's interest or behoof, the curator being debtor to him in the same sum before; and this being a fraudulent unwarrantable act of the curator, unnecessarily to engage his minor as cautioner, the creditor was particeps fraudis, and did collude with the curator in engaging his minor.

The Lords considering, that the charger did not plead his interest as a singular successor, but was content that his cedent Brown should depone, they found only the knowledge and collusion of the creditor of importance to annul the curator's consent to a deed not directly to his own behoof; and therefore, before answer, ordained Brown's oath to be taken ex officio, that it might appear whether there was any collusion or not. See Tutor and Pupil.

Fol. Dic. v. 1. p. 577. Stair, v. 2. p. 73.