Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Marquis of Montrose choosing Curators
Date: 8 November 1695
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The Marquis of Montrose compearing to choose his Curators in prœsentia, the Lords, by the fault of their Macers, suffering the Lady Marchioness, his mother, and many with her, to enter within the inner bar, were necessitated to desire her to remove; and then caused signify it was the privilege of none to stand within but Dukes and Duchesses;—which my Lady obeyed. And the nomination being of his mother, William Hay of Drumelzier, Sir William Bruce, Graham of Urchill, &c. the Lords thought she, being clad with a husband, could no more be a curator than a minor could be, not having a person in law; though it was alleged the Lady Wemyss, while married, was her son's curator (but that was not done before the Lords;) whereon the rest there present were sworn de fideli; and my Lady's nomination was forborne till it were better considered. Some alleged curators were not obliged to swear but only in the presence of a judge, to sign the act of curatory. Then, a guinea being thrown in of instrument-money, the question arose, If the Clerks (who were so recently sworn to take nothing but their 4000 merks of salary, and that only from their Collector,) might meddle with it. Some affirmed, it being qua notary, they might. But these distinctions tending to evacuate the act, the Lords ordained it to be given in to the Collector; else clients, resolving to gratify the clerks, might take instruments on the pronouncing of every interlocutor or decreet, and cast in two or three guineas, and so fraudem legi facere if this subterfuge were once permitted. And thus new laws and customs occasion many doubts.
