Scottish Court of Session Decisions

Subject_1 DILIGENCE.
Subject_2 SECT. VI.

Diligence prestable by Tutors and Curators.

Cathcart
v.
Brown

Date: 15 February 1693
Case No. No 44.

A tutor adjudged an estate for a debt due to his pupil. The Lords found he had done sufficient diligence to exoner him, though moveables were condescended on, which he might have affected.

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Sundry points in the count and reckoning between Cathcart of Carleton and Ann Brown his Lady, against Sir Patrick Brown of Colstown, were reported. The Lords finding the practice had varied in relation to cutting off tutors or pro-tutors who made not an inventory from their expenses; some making them only to lose their personal expenses, (though the President thought no tutor, even making an inventory, could claim these,) others thinking the certification of the 2d act of Parl. 1672 of no value, if it did not extend to all, whether to the pupil's utility or not, as obtaining decreets, confirming the testament, adjudging their debtor's lands, &c. therefore they ordained the several decisions in the case of Gray and Cruikshanks, and the Lairds of Niddry, Preston-grange, and Craigleith; See Appendix; and Burnet, voce Tutor and Pupil, to be produced; that the Lords might take an uniform course in time coming. The 2d point, was about some accounts of law affairs paid to John Smart; the Lords allowed him to be examined thereon. The 3d was, if his adjudging Buttler of Kirkland's estate, for a debt due to his pupil, was sufficient diligence to exoner the tutor when there were moveables which he could have affected; and if for that neglect he ought to take that right to himself, and make it up to his minor. The Lords found he was not bound to have discussed these moveables, but that his adjudging was sufficient; for, besides the loss in apprising moveables, it crumbles and breaks a principal sum,

1693. February 16.—The Lords advised that point delayed on the 15th current, between Carleton and Colston, and found, that a tutor not making inventory lost only his personal expenses, but not those that were profitable; for they thought he could not be in a worse case than a prædo, who got allowance of necessary expenses; but the President and others answered, the act of Parliament had made the difference, and imposed this certification in modum pænæ on such fraudulent tutors; and if this should be interpreted to be no more than the loss of their personal expenses in attending and going about the pupil's affairs, it would be no check at all, but would frustrate the said useful act; so a charge should never be constitute against a tutor, except what he pleased to make himself. The Lords, though they assoilzied Colston in this special case, because of the circumstances that he had not malversed in his office, yet they were proposing to make an act of sederunt for the future, that tutors neglecting to form inventories should lose all their expenses whatsoever. See Tutor and Pupil.

Fol. Dic. v. 1. p. 242. Fountainhall, v. 1. p. 560. 561.