Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. VIII.

Lesion in taking Legal Steps.

Erskine
v.
The Daughters of Erskine

Date: 22 December 1739
Case No. No 133.

A party had been cautioner for a teller in a bank, who, after the cautioner's death, run in arrear. The cautioner's children were found liable, altho' they pleaded minority and lesion; alleging, that their tutors, ought to have withdrawn the caution.

Click here to view a pdf copy of this documet : PDF Copy

Colonel John and Mr Thomas Erskines had been cautioners for Mr George Andrew, as one of the tellers in the Royal Bank; and the Colonel being charged on his bond of cautionry for the sum of, in which Andrew was deficient in his accounts, repeated a process for his relief of the one-half from the representatives of the other cautioner.

Their defence was, that the deficiency had happened since their father's death, while they were pupils; that it was the duty of their tutors to have withdrawn their father's bond of cautionry, which every cautioner for a person in office, or his heir, may do when he thinks fit; and that against this omission they fell to be reponed on the head of minority and lesion.

But as this was no direct lesion, but a lesion arising from the accidental bankruptcy of the principal, and that occasioned by his latent and scarce to be suspected malversation, the Lords ‘found it not to be a lesion of that nature, against which the minor could be reponed; and therefore repelled the defence.’

It is a different question, how far tutors are liable to make up the loss arising from their omissions; for though, in this case, even the tutor would not be liable, as it was such an omission as a prudent man might have fallen into, yet, in many cases, minors will not be reponed against their tutors' omission, to the prejudice of a right acquired by third parties, when yet the tutor may be liable to make up the minor's loss.

Fol. Dic. v. 1. p. 582. Kilkerran (Minor.) No 4. p. 347.