Scottish Court of Session Decisions

Subject_1 TUTOR - CURATOR - PUPIL.

Earl of Kinghorn
v.
George Strangfather

Date: 21 July 1631
Case No. No. 118.

It is the tutor who ratifies a deed, not the pupil with his consent.

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In the action pursued by the Earl of Kinghorn against George Strangfather; Alleged, the decreet of non-entry and comprising following thereupon, could not be reduced, because the Master of Glammis, tutor for the time to the pursuer's father, had ratified the same decreet and comprising. Replied, not relevant to say the tutor had ratified, unless the pupil with consent of his tutor had done it; for the tutor alone can do no deed in prejudice of his pupil but what is null in law. Duplied, the tutor has liberam administrationem bonorum pupilli, and what he doth therein cannot be quarrelled as null by way of exception; but if the minor be prejudged by his deed, he has his choice, either to pursue his tutor personally for it, or to seek to be restored against that deed. Triplied, neither of these two can benefit the pursuer, the tutor not having an heir, and the benefit of restitution not being now competent after so long a time: And there was represented a great inconveniency that might befal minors, if tutors might dilapidate their estates at their pleasure, and make private rights in prejudice of the minors, which could never come to light, till all means of repairing the minor were lost, as in this case the ratification alleged was never heard of for the space of fifty years till this time; so that the party prejudged by it, could never seek to be restored against it, he being ignorant of any such thing; yet the Lords sustained the allegeance.

Spottiswood, p. 347.