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To what length in diligence is a tutor bound to proceed?
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Stevin pursues his mother, as tutrix, and John Boyd, as husband and factor, for an account of his father's means; in which account these points were reported; first, There were some old unfashionable ware in the defunct's inventory, not sold, whereof the tutrix offered to the pursuer his two third parts in specie. The pursuer answered,
That the tutrix had priced the same, and behoved to accept them at that price; and that she ought to have done diligence to have sold them; and executors are never liberated but upon payment of the price.
The Lords found, That albeit executors are countable to creditors always for the price, yet not so to the children; and therefore if it was visible that the ware was old, and could not be sold, wherein the tutrix was at the loss of her third, they found the same should be accepted; but, in that case, they found the tutrix liable for any greater price she got than that contained in the testament. The second point was, What diligence the tutrix should be liable for, whether registered horning were sufficient, or if poinding and apprizing behoved to be used?
The Lords found, That horning would not be sufficient in all cases, but according to the condition of the debtors; and therefore ordained the parties to condescend thereon.
Stair, v. 1. p. 385.
*** See the sequel of this case, No. 35. p. 500. voce Annual-Rent.
