Scottish Court of Session Decisions

Subject_1 IDIOTRY and FURIOSITY.

Colquhoun
v.
Wardrop

Date: 22 February 1628
Case No. No 2.

The King may grant gifts of curatory to idiots when the nearest agnates do not pursue their interest, but if these agnates after wards serve themselves curators, the King's gift will fall.

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In an action of advocation of the service of brieves of idiotry betwixt Colquhoun and Wardrop, wherein the Lords having heard the reasons of both parties, why the service should proceed, or why no such service should take effect, before they gave answer to the advocation, or remit; and the question being betwixt one, who was nearest agnate to the idiot, and who thereby, conform to the 18th act, Parliament 1585, claimed to be served curator to the idiot, and betwixt another who had obtained a gift of tutory-dative from the King, to be tutor and curator to the idiot, by reason that the agnate had not raised the brieves, and desired that service, but only since the obtaining of his gift of tutory-dative, which was complete and expede, and caution found, and the oath de fideli administratione given by him before the raising of the brieves by the agnate, and who had not sought them debito tempore, but had ceased five years after his majority, before he had raised these brieves; which cessation he alleged made him to fall from that office, as in tutors lawful after the expiring of year and day. The Lords found that the agnate should be preferred in the tutory to the tutor-dative, notwithstanding of the gift expede to him, and notwithstanding of the agnate's cessation, and therefore ordained the agnate's brieves to proceed, and remitted the cause. See Tutor and Pupil.

Act. Hope et Nicolson. Alt. Stuart. Clerk, Gibson. Fol. Dic. v. 1. p. 420. Durie, p. 349. *** Spottiswood reports the same case:

John Wardrop having raised brieves out of the Chancellary of Glasgow to serve himself tutor of law to Thomas Wardrop his eldest brother, who was declared an idiot, this service was advocated before the Lords by John Colquhoun, tutor-dative given to the said idiot by the King. Before the Lords remitted it, they ordained the parties to dispute, whether or not the service should go forward, or if the tutory-dative did hinder all other tutors to be served thereafter. Alleged for the Tutor-dative, That the pursuer of the brief cannot be served tutor of law to the idiot, in respect of his tutory-dative purchased of the King, whereupon he has found caution, and given his oath de fideli administratione, and so it is perfect and consummated; which tutory-dative was given to the said John Colquhoun, because James Wardrop being served tutor of law to the said idiot 1612 (as nearest agnate to him at that time, in respect of the minority of John, who now seeks to be served) he never found caution, in fault whereof through his cessation, the King gifted it to him; in respect whereof, the dative should be preferred, it being impossible that a tutor of law after the cessation of the first can be served, after the granting and perfecting of the said dative. Answered, The dative cannot hinder his service; because, by the act 18th Parliament 1585 the nearest agnates to idiots and furious persons should be preferred to all others. Next, there can be no cessation alleged on the part of the first tutor, because he behaved himself as tutor, likeas he gave a factory to this same pursuer for keeping of the idiot, and guiding of his affairs, who found sufficient caution to the first tutor upon his factory; further, the first tutor needed not to find caution, in respect he was nominated tutor testamentar by the idiot's father. Replied, The act of Parliament made in favours of the nearest agnates, takes not away the King's right to give datives to idiots, the nearest agnates not serving themselves within year and day, because the act appoints the said tutors to be given according to the common law, by which agnato cessante, furioso ex judiciali electione a prætore vel magistratu curatorem dari necesse est, L. 7. § 6. C. De Curat. furios. The cessation was clear by not finding of caution for so long a space, qua non præstita, non habuit potestatem administrandi, et quicquid gessit ipso jure nullum erat, C. De Satisd. Tut. et Cur.; which gave the King occasion by the prerogative of his Crown to give a dative. The Lords remitted the matter, and ordained the brother to be served notwithstanding of the dative.

Spottiswood, (Idiots and Furious Persons.) P. 163.