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Scottish Court of Session Decisions >>
Burnet v Burnet. [1675] Mor 14696 (3 June 1675)
URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor3314696-090.html Cite as:
[1675] Mor 14696
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XV.
Tutors and Curators.
Burnet v. Burnet
Date: 3 June 1675 Case No. No. 90.
All tutors accepting are liable to the pupil in solidum for omissions as well as commissions, reserving to those who did not intromit action against those who did.
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In an action of count and reckoning, at the instance of Burnet against his tutors, there being a report, stating how far the tutors were liable for their intromission, and it being craved, before advising of the cause, by some of the tutors, that they might be heard, it was alleged, That Burnet, being the only intromitting tutor during the whole years of his tutory, and being solvendo, ought only to be decerned, the rest being content to be cautioners that he should be sufficient to make forthcoming. It was answered for the pupil and his present curators, That the allegeance ought to be repelled, and the whole tutors decerned, because, in law, they were all liable in solidum to the pupil, and he was not obliged to discuss one of them as intromitting. The Lords did find, that the decreet ought to be given against them all; but reserved to the tutors who did not intromit action of relief against the tutor who had intromitted, seeing they were obliged to state the accounts of the tutor's intromission, and see the same applied and secured to the pupil, having accepted the office, which did oblige ad commissa et commissa.
Fol. Dic. v. 2. p. 283. Gosford MS. No. 753. p. 468.
