L A W. 



665 



btr a quo- 



Diffrrrnc* 



pist are declared incapable of tutory or curatory by 

 170O, c. 3. Where the minor has more tutors and cu- 

 .^1^ rators than one who are called in the nomination to the 

 joint management, they must all concur in every act of 

 What DUB- administration : Where a certain number is named for 

 a quorum, that number must concur : Where any one 

 is named tine quo non, no act is valid without tliat one's 

 special concurrence. But if they are named without 

 any of these limitations, the concurrence of the majori- 

 ty of the nominees then alive is sufficient. 



8. In this, tutory differs from curatory, that as pu- 

 nsen tu- pfls are incapable of consent, they have no person ca- 

 pable of acting, which defect the tutor supplies: But a 

 minor putet can act for himself. Hence the tutor sub- 

 scribe* alone all deeds of administration ; but in cura- 

 tory, it is the minor who subscribes as the proper party ; 

 the curator does no more than consent. Hence also, 

 the person* of pupils are under the power either of 

 their tutors or of their nearest cognates ; but the mi- 

 nor, after pupillarity, has the disposal of his own 

 person, ana may reside where he pleases. In this 

 sense, the rule of the Roman law may be under- 

 iseurtto- stn<id, t'ltor datur pfrtontf, curator ret. In most other 

 I too- particulars, the nature, the powers, and the duties of 

 the two offices coincide. Both tutors and curators 

 must, previous to their administration, make a judicial 

 inventory, subscribed by them and the next of kin, be- 

 lore the minor's judge-ordinary, of his whole estate, 

 personal and real; of which one subscribed duplicate 

 is to be kept by the tutor* or curators themselves, an- 

 other by the next of kin on the father's side, ami a 

 third bjr the next of kin on the mother's. If an estate 

 belonging to the minor shall afterwards come to their 

 knowledge, they must add it to the inventory with- 

 in two months after their attaining possession of it. 

 Should they neglect this, the minor's debtors are not 

 obliged to make payment to them ; they may be remov- 

 ed from their office* a* suspected, and they are entitled 

 to no allowance for the sums disbursed by them in tilt- 

 minor's affairs, 1672, c. 2 ; which last penalty does not 

 reach to the expence laid out upon the minor's enter- 

 tainment, or upon hu lands and houses, Act. S. 25M 

 Feb. 1693, nor to sums expended in completing his 

 titles, 18th July, 1707, Yeaman. 



9- Tutors and curators have power to sue for, and 

 levy the minor's rents, interest, and even principal gums, 

 if his necessities call for it ; to grant acquittances to the 

 debtors, and to name factors or stewards, with reason* 

 Mw- able salaries. They may remove tenants, and grant 

 leases of the minor's lands, to endure as long as their 

 own office ; but not under the former rental, without 

 a warrant from the Court of Session, or some ap- 

 parent necessity : But though they can use all diligence 

 again* the minor's debtors, the minor's creditors can 

 execution against them for payment of the debts 

 due by the minor ; for these are the minor's proper 

 debts, and it cannot be known till accounting, whether 

 ors or curators have in their hands .-my funds 

 belonging to the debtor: Yet they may be charged tor 

 the performance of facts in their own power, e. g. to 

 make a subject forthcoming, to renew investitures to 

 the heirs or vassals, Ac. 



If). They have power to sell the minor's moveables, 

 with>> his personal estate would frequently be 



'iey were by the Roman law denied" the 

 er of aliening land-estates without the authority of 



ting 

 Mi* 



lop. 



of 

 Hin and 





k:: - 

 mblti ; 



i;.,- D| 



a judge ; but that law obtains with us only in the case 

 of tutors ; foe the alienation of heritage by a minor, with 

 consent of his curators, is valid tiite decreto prcrlorit. 

 VOL. xn. PABT u. 



11. It is the duty of tutors and curators to take pro- La 

 per care of the minor's person and education, and to of Scotland, 

 disburse the expence necessary tor that purpose. Tu- " 



tors ought not to employ a yearly sum exceeding the ; 

 interest of the minor's stock, or the rent of his estate, t 'o ' tn e mi . 

 for his education and maintenance ; but curators may nor's per- 

 encroach on the stock itself, where it is small, or even son : 

 employ the whole of it if less will not do, for putting in regard to 

 the minor in a way of business. It is also their duty to his reye- 

 employ the minor's rents and interests profitably. nues. 



12. Though no person is obliged to accept the office Howtutory 

 of tutor or curator, yet having once accepted, he can- and cura- 

 not throw it up or renounce it without sufficient cause. tor y ex P ire - 

 But if he should be guilty of misapplying the minor's 

 mr*iey, or fail in any other part of his duty, he may be 

 removed by the aclio, or rather accusalio, suspecli luto- 



ris, which was by the Roman law, pojmlaris, but with 

 us can be pursued only by the minor's next of kin, or 

 by a co-tutor or co-curator. The offices of tutory and 

 curatory expire also by the pupil's attaining the age of 

 puberty, or the minor's attaining the age of twenty-one 

 years complete ; and by the death either of the minor 

 or of his tutor or curator. 



13. Deeds either by pupils or by minors having jr^, of 

 curators, without their consent are null ; but they ob- d ' ee( | s Dy 

 lige the granters, in as far as relates to sums profitably minors. 

 applied to their use. A minor under curators can in- 

 deed make a testament by himself; but whatever is 

 executed in the form of a deed inter vivos, requires the 

 curator's consent. Deeds by a minor who has no cu- 

 rators, are as effectual as if he had had curators, and 

 signed them with their consent ; he may even alienate 



his heritage, with the interposition of a judge. 



14. Minors may be restored against all deeds grant- Restitution 

 cd in their minority that are hurtful to them. Deeds of minors. 

 in themselves void, need not the remedy of restitution ; 



but where hurtful deeds are granted by a tutor in his 

 pupil's affairs, or by a minor who has no curators, as 

 these deeds subsist in law, restitution is necessary : And 

 even where a minor having curators, executes a deed 

 hurtful to himself with their consent, he has not only 

 action against the curators, but he has the benefit of res- 

 titution against the deed itself, both by the Roman law, 

 and by ours. 



15. The persons of pupils are protected from impri- Pupils can- 

 sonment in civil debts, by 1696, c. 41. n ' be im - 



1 6. Curators are given, not only to minors, but in J 

 general to every one who, either through defect of e> 

 judgment, or untitness of disposition, is incapable of jdl 

 rightly managing his own atfairs. Curators may be f ur ioLs"pr. 

 also granted to lunatics, and even to persons dumb and sons, 

 deaf, though they be of sound judgment, when it ap- 

 pears that they cannot exert it in the management of 

 liiiMiiess. 



1 7. The law concerning the state of children falls Parent and 

 next to be explained. Children are either born in wed- cnil d- 

 lock, or out of it. All children bom in lawful marriage Lawful 



or wedlock are presumed to be begotten by the person children. 

 to whom the mother is married, and consequently to be 

 lawful children. This presumption is so strongly found- 

 ed, that it cannot be defeated but by direct evidence 

 that the mother's husband could not be the father of the 

 child, e. g. where he is impotent, or was absent from 

 the wife* till within six lunar months of the birth. The 

 canonists indeed maintain, that the concurring testi- 

 mony of the husband and wife, that the child was not 

 procreated by the husband, is sufficient to elide this le- 

 gal presumption for legitimacy ; which doctrine is. 

 adopted by Craig, 371, 20. and Lord Stair, II. 3. f 

 4 P 



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