Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Brown
v.
Thomson in Kirkaldy, and Harvy, his pupil

1692 and 1693.

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1692. December 28.—The Lords found the declaration produced, designing him co-tutor, and offering to entertain the child gratis, was not such an acceptation of the tutory, and of the disposition where the nomination of the tutory was contained, as to infer he had homologated all contained in that nomination, and consequently that he had acknowledged the 500 merks wherein he was stated debtor by that paper to the disponer; and that it was not a sufficient probation of the debt, especially seeing by a letter of the defunct's it appeared counts were not fully clear between them; but it had been his safest course, when he saw the nomination gave him up as a debtor in 500 merks, to have protested against it. The Lords also found, that though Thomson offered to aliment the pupil gratis, yet being removed as suspect for not concurring in upgiving the inventaries, he could not have the custody till he reduced the act removing him; but that regularly the pupil ought to be delivered up to the other tutor, though he made not the same gratis offer, unless he were the nearest in blood to succeed to the pupil; in which case, law denied him the keeping of his person, ad evitandum votum captandœ mortis.

Vol. I. page 540.

1693. February 16.—The Lords, on the 28th Dec. last, had found, that Thomson had lost the tutory of Harvy, his pupil, and would not hear him against that act, without a reduction. He now insists on his reasons, viz. that all the reason of debaring me, was because I would not concur with the other co-tutor in giving up the inventaries; and I had reason to refuse, because he inserted me as debtor for 500 merks, which I denied to be just debt.

Answered,—You might have protested against that article.

2do, The notary and witnesses, in the instrument requiring him to accept, were not examined.

The Lords thought, in such cases, the instrument was probative of itself, without adducing the testamentary witnesses, unless the other party would offer to improve it as false.

3tio, It was only his advocate, who renounced and gave over the office of tutory, who had no mandate or commission from him to that effect; and though in actibus officii he needs no other mandate but his gown, yet in quitting of rights, he should be specially authorised; as, in the renouncing to be heir, it must be subscribed under the client's hand. Yet Advocates frequently pass from such and such parts of the libel.

The Lords, in this case, allowed Brown the administration of the minor's affairs, but gave the custody of the pupil to Thomson, who was married to the child's aunt, and having no children of his own, offered to entertain him gratis, and to be otherwise kind to him; especially seeing Brown was either to succeed, or had the power of distributing the means by the father's appointment, in case the child died.

Vol. I. page 561.