Scottish Court of Session Decisions

Subject_1 PACTUM PRIVATUM.

Stuart
v.
Henderson

Date: 8 March 1636
Case No. No 2.

Found in conformity with the above.

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One William Stuart being served and retoured tutor lawful to the bairns of his umquhile brother, Mr Walter Stuart, notary in Perth, pursues Agnes Henderson, relict of his deceased brother, and, Stuart, now her husband, for exhibition of certain bonds, made to the bairns father, and being in her hands, as tutrix testamentar nominated in her umquhile husband's testament; and she compearing, and alleging, That the pursuer's retour to this office of tutory is null, seeing it was deduced before the Bailies of the Canongate; whereas the defunct was indweller, and died in Perth; and, consequently, he ought to have been served there, and not being done so, the same is null, as done a non suo judice, et incompetente. This exception was repelled; for the Lords found, that the brief of tutory being directed out of the Chancellary, to any Judges generally, the party might serve the same before any Judge, even as a general brief to serve one general heir to his predecessor is sustained, being done before any ordinary Judge, having jurisdiction. And it being further alleged, That the defunct had nominated the defender, his relict, tutrix testamentar to the bairns foresaid, so that there was no place to the pursuer to pursue as tutor lawful, from the which office she cannot be thought to have fallen by her second marriage in respect that the said defunct, her husband, in his said testament, had nominated and appointed her to be still tutrix to the said bairns, during the whole time of their pupillarity, as well after her second marriage, as during the time of her widowhood; and it being replied, That that provision ought not to be sustained, as being against the law, which provides, that no woman can remain tutrix after she has clothed herself with a second husband, whereby she becomes under her husband's government, and so cannot manage the office of governing another; and this being the inviolable custom and practique of the realm, it cannot be inverted by any private appointment, set down in a testament against law and practique; in respect of which reply, which the Lords sustained, the Lords repelled the said exception; and, notwithstanding of the provision foresaid of the testament, found the relict had tint her office by her second marriage.—See Tutor and Pupil.

Fol. Dic. v. 2. p. 24. Durie, p. 801.