Information for Andrew Fletcher of Aberlady and his tutor against Sir Archibald Murray of Blackbarrony, and Sir Patrick Murray of Saltcoats and others.

The State of the Affair.

SEeing this hath appeared to be the matter of Fact, from the shewed Copies of the Scotish Registers translated into Latine, that Sir Andrew Fletcher at a certain rate purchased to himself the Lands Aberlady's: But because of a Liferent Annuity in these Lands of Jean Seatoun Spouse unto Kenuedy of Ardmillan; It was agreed upon by the express Paction between the Seller and Buyer, that while the Liferent continued, the sum of 42000 Me••ks of the Prom••sed price should remain in the hands of the Buyer, that from the yearly Interest of that Money (according to the custom of the Coun∣trey) amounting to 2500 Merks, the quantity of so many Merks might be se∣cured due, and to be payed yearly to the Liferentrix according to her Life∣rent Right. The Buyer having Decea∣sed and left a Son Minor, Archbald Fletcher, his Curators the Laird of Black∣barrony, and the other Curators Trans∣acted with the Lady's Liferentrix going into the fifty six year of her Age, and then Diseased with a Cancer; that she for thirteen thousand Merks should quite her Liferent R ght to the Proprie∣tor being Minor; and so should renounce all Right of Servitude. But for Security of this Transaction, the Curators be∣came Caution, and bound their own Person; and moreover perswaded their Pupil that he being but Sixteen years of Age, should promise by a Solemn Oath to ratify that Transaction, and never to quarrel or Impugne it, that these things being so done within a short time after the Liferentrix Dyed, of the said Cancer, that the Minor himself also hav∣ing Dyed, had a Successor his Brothers Son Andrew Fletcher, as yet an Infant.

And the Curators of the Desunct having intented an Action against him, for Restitution of the thirteen Thousand Merks comprehended in the Transacti∣on, which they pretended were payed out of their own Money, that the said Aberlady was overcome in the Action: In the Supreme Court of Justice of Scot∣land, Restitution in Integrum being denyed to him which he had implored on the head of his Deceast Fathers Bro∣ther, against the Transaction made by the Curators with the Liferentrix in name of the Deceast Minor and con∣firmed by the Defunct Minor himself by an Oath. And that an Appeal had been made from that Sentence to the Parlia∣ment of Scotland in the name of the Child, according to the Custom and Right granted. We Subscribers, Doctors and Professors of Law in the Universi∣ty of Leiden, constituting the Faculty of Law, being desired, to declare our Opinion in Law anent this Plea between the Curators, and Successor of the Mi∣nor; have judged that two things espe∣cially are to be inquired into first. Whither a Right and power of making a Transaction about such, a Liferent for their Minor belonged to the Office of Curators. Next whether the Oath gi∣ven by the Minor going in the Seven∣teen year of his Age, added for confirm∣ation of the Transaction took away from the Minor or his Successor all help of Restitution in integrum and all other aid of the Law.

As to the first, Albeit the Law doth not Discharge Curators altogether from all Transactions, but that only whereby the clear Right of the Pupil and the like is remitted l pignore 54 ss. ult. l. inter. dum 56. ss. qui tutelam 4. D. de furtis. l. praeses 12. Cod. de Transaction: l: Lu∣cius, 46: ss. ult: D. administrat. & peric: tutor. iuuct. l. non omni 16 Cod, eod, tit. de adminictrat. tutor. Tyraquellus ad l. si unquam. 8. Cod. de revocand. do. uation. in verbis donatione largitus. num. 196 Paulus Montanus de tutelis Cap. 33. num. 239. 240 & seqq. & num 289. 290. 291. Nevertheless this O∣pinion is only to be admitted concerning

these Cases, in which doubtful event is to be expected of the present approach∣ing or iminent Plea; and so in which if the Business should not be agreed by a Transaction, it would come at last to be decided by a Judicial sentence, be∣tween the Parties contending, for then seeing the decision ought to follow al∣together by the Judgement of a man, and the Destinies of Causes are uncer∣tain and doubtful and Triumphs uncer∣tain, it is ofttimes better for preserving of that which is ones Right to remit some∣thing of the Right of the Pupil, then by making a Tryal of the summum jus, and experimenting Extremities to ex∣pose the Pupil to the Hazard of loosing all: And even this power of Transact∣ing allowed to Curators especially lean∣eth on that Foundation, that the thought of Tutors abhor••ing Pleas ought to be judged Honest, and Modest, and not at all to be blamed, as is to be seen in Montanus. D. tract. de tutelis, Cap. 33 num. 254. & seqq. It is to be judged otherwayes, where there is, or is fear¦ed no Plea, where uncertainty (if there be any in the Pupils Business) is not to be determined by the Sentence of a Judge, and the gain or loss of a Pupil dependeth not on the uncertain Opinion and wavering Capacity of a skilful or un∣sk••lful, Circumspect or imprudent Judge, but only ought to be determined from the nature and event of the Con∣dition or day, from which the Durati∣on or ruine of the thing dependeth; Fi∣nally where it appeareth that the Right of the Pupil is controverted in no part of it self, but is plain, clear and certain All which do manifestly concurr in this Case: Because in this Case as it was certain, that the Minor had a Right of Property in the Estate Bought, so on the contrair it was also evident, that no Right of the Liferent to be joined and consol••dat with the Property was to be purchased by him, unless the Liferent had been extinct by the Death of the Liferentrix: And as with no probable Reason could the Right of the Liferent have been taken away from the Liferen∣trix before her Death, and granted to

the Pupil by the sentence of Judge, so again neither could the hope of the Life∣rent about to return to the Property have been diminished to the Pupil or convey∣ed away: But that the end of the ap∣pointed Liferent altogether dependeth on the event of uncertain Mortality at some time to happen.

Nor is there any ground to Reply, that this was the only purpose of the Cura∣tors, that they might provide for the good of their Pupil as much as was pos∣sible, with the present payment of a few Years Annuity (to wit, of five and a little more) by adding the right of Life∣rent to the property, from which per∣haps it might have remained separate fourty whole Years, or longer: Seeing the Liferentrix at the time of the Trans∣action going in the fifty and sixth Year of her age, might have naturally pro∣longed her Life to an Hundred Years, as to the end of the Life of a long living Man, and have hindred the Proprietar Minor from the Right of Enjoying. L. An. usus fructus 56. D de usu fructu.

For first indeed it is to be considered, That it is not permitted to Curators to expose the certain Advantages of their Pupils to the uncertain hazards of Lose∣ing, or to diminish their Goods in hope of obtaining a greater uncertain Gain; and so to Transact to diminish their E∣state. D. L. 46. ss ult. D. de admin. Tu∣tor. To which it was consequential, that neither had the Curators here a power of making the present loss, or bestowing of thirteen Thousand Merks out of the Pupil's substance, that from the Life∣rent so bought the Pupil might find gain after the running out of five Years; where even without any payment of ready Money, the Liferent might have ended the first Year; as that also is said to have hapened in this Matter of Fact: For although it is not to be denied, but that sometimes good and provident Pro∣prietars, having payed a little ready Money, may add to their own property a Liferent be••ng in the power of another which if the purchase had been neglect∣ed, might have continued longer sepa∣rate from the property: Nevertheless,

whatsoever a diligent Proprietar, who is a most free Manager and Judge of his own Goods, tryeth in hope of grea∣ter Gain, whatsoever he not imprudent∣ly exposeth to the hazard of Lossing with a desire of receiving Advantage,, that ought not to be granted also to Cu∣rators and other the like Administrators of other Mens Affairs: Who have not an absolute power, but only a liberty of managing, Tutors having not a power of alienating the Goods of their Pupill upon every pretence, but selling only for management what they have liberty to sell they warr and to the Purchasers a just Cause of possessing, is a Rule given by the Emperors in L non omvi. 16 Cod: de administr: Tut. And surely, if these things were to be permitted to Tutors and Curators they would give an easie occasion and ready way of hastning Mi∣nors to poverty. It is permitted to Ow∣ners to Merchandize, and by that means to strive to come to Wealth: Never∣theless, a Tutor shall not do rightly, or according to the prescript of his Office, if to become the sooner Rich he should bestow on Trading his Pupils Money that are well given out upon Interest, or are even lying idle, which perhaps may wholly perish by one Shipwrack. Hence in L. quì negotiationem 58 D. de Admi∣nistr. & peric. Tutor. When the Fa∣ther of a Pupil had excercised Merchan∣dize by two of his freed Men, he judged it was to be expresly cautioned in his Testament, and to be particularly ad∣joyned to these freed Men given as Tu∣tors to his Son a Child, that his Mer∣chandize should be managed in the same manner as it was managed while he him∣self was alive: And when the one of the Tutors desired the Gain made by that Traffiquing to be reserved to himself, and would discharge himself by giving the Interest of his Pupil's Money, an O∣pinion was given in Law that he ought to make his accounts according to the Will of the Dead, and so impute to the Pupil all the Gain and Damnage of the Traffique. To which it was consequent, that he was to be freed by the paying of the Interest alone, and was to Trade at

his own hazard, if the the Pupil's Father had not expresly in his Testament com∣manded the continuation of Traffiquing. Whence also Interpreters have deserved∣ly gathered, That a Tutor cannot in the Name and to the Hazard of the Pupil exercise Merchandize not exercised by the defunct Father of the Pupil, and if the Father have exercised it, to continue it in no other manner than he had done, as after Alexander Vol. 5. Consil. 132. num: 14. Et Marquard de Mercatura. lib: 1. cap: 9. num. 5. & ••eqq, marketh Brunemannus ad D. l. 58. de admin: tut: num: 3. Many industrious Proprie∣tars, h••ving before them the present pro∣spect of the danger, undertake the Ha∣zard of Transporting Wares, with the Approbation of Law and Custom, yet no Man will justly assert this power to Curators, that in the Name and to the Hazard of their Pupils they might pro∣mise Security of the things Transported, or (as they say) might insure them. Nor is it unknown that Transactions are lawful, about Inheritances of Trust to be restored after the Death of the Tru∣sty, that either the Trusty himself be∣ing alive may restore, having retained a great part of the Inheritance, or the Trusty presently being content with the present little received may quite further hope L. 1. Cod: de pactis: l. cum proponas 16 Cod: de pactis l. de fidei commisso. 11. Cod: de Transaction: Nevertheless, it is plain that it would be unjust, if this sort of Transacting should be left to the bare pleasure of the Curators, no De∣creet, Act, and Cognizance of a Ma∣gistrate interveening. Finally, it is not unusual to those who go diligently about their Affairs to buy Liferents. From which kind of Buying, although no small Gain might come to the Pupils, that are to arise to a more advanced Age: Ne∣vertheless, because the stock it self might perish, the Pupil dying shortly after, the Curator would go beyond the bounds of his power. if he would bestow the Pu∣pils Money on the purchasing of such Rents. So that now among the Hollan∣ders (where there is very frequent use of such Liferents) in the Year 1671

October 3. the Necessity of the Exchequer then calling for Money from whence soever be∣ing pressing, it was enacted by the States of Hol∣land, that Tutors and Curators without fear of Cavillation or Reprehension might purchase such Rents from the Treasury with their Pu∣pils Money, and to their Peril or Advantage, but yet no otherwayes than that a Decreet of the Court of the Province or Magistrate shovld preceed: And albeit it be soon Answe∣red, that Strangers are not bound by the Laws of the Hollanders; yet it is not absurd, that the power of Tutors being reasonable and li∣mited by Equity be also confirmed by the pra∣ctices of other Nations that have better Cu∣stoms than ordinary. But what difference is there I pray you, whether one purchase a Liferent to a Pupil, and loss the Stock, or at the present Rate of thirteen thousand Merks he redeem the uncertain continuance of a Life∣rent Annuity, depending likewayes on the mortality of the person.

To these it is added, that in the Case pro∣posed the Liferent Annuity it self, if it had continued longer separate from the propriety; yet it could have no way been hurtful or bur∣densome to the Pupil, because in whose hand, while the Liferent right continued, so great a quantity of the price should be remaining by vertue of the express paction, that satisfaction might be made thereby to the Liferentrix out of the Interest of it: So that there may seem to have been no just enough or pressing Reason of transacting. For although it be al∣ledged by the Curators, that there were not remaining but ten thousand of the fourty two thousand retained at the time of the Transa∣ction; nevertheless, seeing that doth not ap∣pear, the Tutors Accounts not being as yet made, it could not at all subvert the for∣mer Reasonings, albeit it could appear never so much, we have been altogether induced to think that the Curators in the present Matter of Fact transacting about the Lifrentrix Annuity, having payed thirteen thousand Merks, without any precedent Cognizance and Decreet of a Magistrate went beyond the bounds of the power of Curators, and did those things which did not belong to the Offiee and Management of a Curator: And so that that Transaction null in Law it self, could bring no prejudice to the Pupil.

But although in rigour of Law this kind of Transaction should be determined to be per∣mitted to Curators (howsoever the contrary hath been abundantly proved) nevertheless Restitution should not therefore be denied to the Minor aguinst the harm and laesion done him by this Transaction; seing great enough yea supine Negligenee, (for it is not lawful to presume deceit in Curators generous by the honour of their Families, if it be not mani∣festly proven either by Witnesses or the Remedy of an Oath) may seem to have been commit∣ted in celebrating it, to wit, that they did not more diligently enquire into the Condition and Health of the Liferentrix, with whom the Transaction was to be made: For seeing Mor∣tality about to come sooner or latter to the Liferentrix, from the probable Circumstances of Age, Weakness, Disease and others, was the only foundation of interposing the Transaction it was oltogether necessary that a curious Inquisition should be made into the Constitution and Health of the Liferentrix Body. Which if it had interceeded, the knowledge also of the Cancer, and from thence the suspicion of Death shorty approaching might have come to the Curators as well as to others: Nor had good Fidelity then suffered them certified to proceed to such a Transaction, with so manifest a loss of the Pupil's Money.

Seing therefore they were negligent in searching out that; it cannot be denied, but

that by their great fault the Minor fell into this loss of thirteen thousand Merks: But that Minors so wronged used to be succoured by Restitution in integrum, is so ordinary and certain in Law that it needeth no probation.

That we may open up the other Contro∣versie and Difficultie arising from the Oath of the Minor interposed to confirm the Trans∣action, we think It is before hand to be pre∣mised, that by the Roman Law the Oaths of Lads grown up, were to have been inviola∣bly keeped ex vulgata L. 1. & authent. sacra∣menta puberum Cod. si adversus vendition. if as to the rest all things had been done legally accord∣ing to the prescript of the Laws; so that they had been ratified and firm in rigour of Law, neither had any other intire Restitution against them to have been feared, than from the head of Laesion happening by Minority. When o∣ther wayes not being contracted by Minors according to the prescript of the Laws and so Null, they needed not so much as the aid of Restitution: As ex L. siquidem 11 Cod. de prae∣dus & aliis rebus Minor. Sine Decret. non alien. & L. pen. D. de Minor. 25. anuis, is abundant∣ly gathered; while a prescript was given, that it was superfluous to treat of the cheap Rate of an Estate sold, a Decreet not being inter∣posed about alienating the Lands of Minors, seing the authority of an Act of the Senat hindred the alienating, and retained the Do∣minion. But a Decreet being interposed, and the Vendition so perfited by Law, Restitution might have been obtained against Sale made at a cheaper Rate. But if the Oath of a Mi∣nor had moreover been added, then at length it was true, that the Remedy of Restitution was denied. Per D. L. 1. Cod. si adversus vendi∣tionem: So judging with us Donellus Coment. jur. Civill. libr. 21. Cap. 13. Zoesius ad pandect. tit. de Minorib. 25. aunis. num. 40. Perezius ad tit: Cod. si adversus vendit num. 1, 2. For al∣though the Opinion of Martinus hath pleased many, contending that even the invalide Con∣tracts of Minors are made valide and firm by an Oath, who are reckoned over by John à San∣de de prohibita alienatione Cap: 1. num. 94. Ne∣vertheless we judge that the Opinion of Bul∣garus restricting D. L. primam & D. authenti∣cam to Businesses alone valide in rigour of Law agreeth to the sounder reason of Roman Juris prudens: For, seing these things, which have been done by whatsoever Majors against the Laws, being so Null in Law it self, that nei∣ther can an Oath add firmness to them. L. non dubium. 5. Cod, de legibus. L. juris gentium 7. ss. & gereraliter. 16. D. de pactis. It is necessary that to shun Absurdity we say, that things done by a Minor against the Laws do remain far more infirm, howsoever confirmed by the Religion or Tye of an Oath, unless we would have the condition of Minors in contracting to be

worse than that of Majors against the manifest favour of a Minors Age.

If these things be applyed to the present Business, it will be clear that an Oath inter∣posed by a Minor to confirm a Transaction, neither can or ought to be hurtfull to a Minor the effect being looked to. For whether we conceave the Transaction null in Law it self, as not belonging to the Office of a Curator, and made without the Decreet of a Magi∣strate, that Act invalid in Law it self could not receive any firmness from an accessory Oath given by a Minor. But if on the contrary any contend that the Trunsaction subsisted in Rigour of Law) although against the Rea∣sons of Law formerly proposed) nevertheless, seeing the Laesion of the Minor appeareth from the manifest and great neglect of the Curators, the Oath of the Minor cannot hinder the ex∣traordinary help of Restitution, usually indulg∣ed to this Age being lae••ed and wronged, be∣cause it laboureth with an evident defect, and is null in Law it self. For even as in other whatsoever Agreements of Minors having Curators, the Authority of the Curators is al∣together necessary to the Agreements; and it being wanting whatsoever hath been done is altogether unprofitable, and to be esteemed in no other place, then Contracts by them, who are interdicted from their Goods a Curator be∣ing given them by the pretor. l. si Curatorem 3 de Cod. de in intergrum restit Minorum. So also that promissory Oath ought to be judged void and of no effect in Law it self, whereby the Minor promiseth that he will not come a∣gainst or oppose the Faith of the interposed Contract, if the Aunhority of a Curator be wanting. For although in the present Busi∣ness it might seem at first View, that the Au∣thority of Curators had not been wanting, while they themselves exhorted and induced the Minor to the Religious tye of an Oath: Nevertheless having more throughly consider- the Circumstances of the thing done, it will easily appear, that this Authority of the Cu∣rators was null in Law it self, if any please to compare the common Rule of Law, which ex∣presly forbiddeth Tutors and Curators to be Authors and Advisers to their own proper inte∣rest and proper profit, and in that case requireth the consent of a Curator specially to be ap∣pointed to that Act l. 1. D. de Autorit. tutor. ss. ult. justit eod. tit. For seeing the Transaction about the Liferent had got very full security and firmness for the Advantage of the Liferen∣trix, who had Curators Rich enough for the implement of that Transaction in their own name oblidged to her self, who from that might have been effectually pursued, howso∣ever otherwayes the Transaction considered in it self had been destitute of all firmness; Arg. l. etsi is 9. Cod. de praediis & aliis rebus Minor, sine

decreto non aliend. This Oath of the Minor having followed was altogether superfluous indeed as ro what concerns the Liferentrix, and therefore it cannot be conceived to have been contrived and given for the profit and security of any other, than the Curators them∣selves; to wit that either they themselves might be freed from an Action of tutelage, that would be afterwards raised by the Pupill against themselves for the hurtful Transaction and the Pupils Money squandered away without ne∣cessity or profite; or lest they themselves be∣ing conveened upon their Obligation made with the Liferentrix, and paying should bear the loss, if the Minor had been to oppose the nullity of the Transaction to them afterwards seeking back the quantity of Thirteen thousand Merks or at least had been to implore extraor∣dinary aid against the hurtful Transaction. But what pray you, is it for Curators to be Authors for their own interest, if this be not it, whereby their own Authority and Exhortati∣on made, they have tryed by all means to ob∣tain security to themselves and freedom from the Action of tutelage by the Oath of the Mi∣nor.

To all which it is at last to be added over and above out of abundance that the Law and Auth. Sacramenta puberum Cod. si ad versus venditionem; are so abolished by the common use and practice of Nations, as the Spanish, Italian, French, Bel∣gick, and other interpeters and Practitioners in the Law bear witness, that it might deserved∣ly be asked in what part of the World, or in what Corner hath the use of this Law and Au∣thentick been reserved. And this indeed for a very pressing Reason; when Experience had taught that with the same inconstancy and faci∣lity of Age that Minors are induced to Contract to the Destruction of their own Substance, they are also instigated and moved to fortify their Contracts with an Oath; and that many E∣states of Minors have been exhausted by the pretence of an Oath, which by snares and bad artes the captious Avarice of Contracters, and a lust of Gaining by right and wrong had extorted from their frail Age, labouring un∣der a Weakness of Judgement, Christnaeus vol. 5. Decis. 225. num. 20 & seqq: Finellus ad l. 2. Cod. de refcind. vendit. 3. cap. 2. num: 11. Ar∣gentreus ad consuetudines. Britann. art. 471. num. 1. 2. Gudelinus de jure noviss. lib. 3. cap. 4. vers. non immorabor. Henr. Kinschot Responso 102. num. 18. Bugnion de legib. abrogat. libr. 1. satyra. 119. Perezius tit. Cod. si advers. vendit num. ult. and others whom Groenewegen relateth de leg. abrogat. ad D. tit. si adversus vendicionem; and Christiaenus innotis ad Bugnion. D. loco. And hence the Dis∣position of D. l. 1. and the Authentick. hath so far displeased the Frislanders themselves also, al∣though otherwayes very strict observes and Followers of the Roman Law, that it hath been Decreed by them, that sworn Renunciations and Contracts of Minors have no more effect then these that are unsworn and withal it hath been forbidden that Scriveners or Notaries do not sub∣ject the Contracts of Minors to an Oath, or exact Oaths from them under the pain of losing their Office and other Arbitrary punishment. Satua Friziae libt. 1. tit. 7. § 5. John a sande prohibita alienatione. Cap, 1. num. 97. Unto which purpose almost, it hath been told us also that the Parlia∣ment of Scotland made an Act in the year 1681.

From all which we do not doubt, but that succour is to be given to the Minor against the sworn Transaction, about which the plea is, that he sustain not any Laesion from thence; and that so it is in Law, we judge according to our Conscience. In Testimony whereof we have subscribed these presents, and have added to our Opinion the lesser seal of the University at Ley∣en the 7 of May 1693.