Scottish Court of Session Decisions

Subject_1 TUTOR - CURATOR - PUPIL.

Graham
v.
Earl of March

Date: 31 January 1735
Case No. No. 264.

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A tutor having disponed an heritable bond, wherein his pupil was infeft, to a purchaser of the estate, upon payment, in a reduction of the said disposition against the purchaser, the tutor having died insolvent, it was pretty obvious, That the disposition to the purchaser, who had an interest to disencumber the estate, was the same with a renunciation: But then it was questioned, Whether a tutor can at all renounce an heritable bond, or the debtor be in safety to pay, without having the decree of a Judge for his warrant, or at least seeing to the application of the money? It was pleaded for the pursuer, as fixed law, That a tutor cannot assign his pupil's bonds, whether heritable or moveable, nor sell his land, unless causa cognita upon a decree of a Judge; and such restraints would be to exceeding little purpose, if the tutor were at liberty to uplift and squander the whole debts belonging to his pupil; and to fortify this, the authority of the civil law was quoted; § 2. Institut. Quib. alien, lic. vel non, L. 25. & 27. C. Administr. Tut.; and Sir George M'Kenzie, Tit. Tutors and Curators, § 18. Answered, The intervention of a Judge is only required in our law, to enquire whether the alienation be necessary, and to fix the price; neither of which can obtain in this case, where the tutor must receive payment of the pupil's debts, when offered. There the Judge's province is at an end; neither he nor the purchaser is bound to see to the application of the money; that part is left entirely to the tutor. In the same way, a debtor may safely pay to the tutor; nor does our practice require, that he see to the application of the money. The only case where this is requisite is where the tutor borrows money; which being a more extraordinary step of management than even alienating the pupil's effects, and being absolutely a voluntary deed in the lender, our law imposes upon him the necessity of seeing the money applied. Possibly it would be a good regulation that this should obtain in every case, in conformity to the Roman law; but our practice has not gone so far. The Lords found, That thet utor might lawfully assign the pupil's bonds in favour of the purchaser of the land affected with the heritable bond, and who had thereby right to redeem it.—See Appendix.

Fol. Dic. v. 2. p. 489.