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Scottish Court of Session Decisions >>
Heirs of Ardross v Dishington. [1566] Mor 8938 (12 February 1566)
URL: http://www.bailii.org/scot/cases/ScotCS/1566/Mor218938-047.html Cite as:
[1566] Mor 8938
A minor may warn, in order to removing, without consent of curators.
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In the action of removing, moved by the Heirs of Ardross against Thomas Dishington, their father's brother, it was excepted, That the time of the warning the pursuers were minors, and warned not by the authority of their tutors; and the said Thomas was tutor testamentar, and so giving that they had warned lawfully, he could not be removed; because he, as lawful administrator and tutor, occupied the said lands, from which he was warned to flit. It was replied, That the said Thomas, before he was of lawful age to be tutor, intented an action of bastardy against the pupils, and thereafter intented an action upon the hail pupils' heritage; and, therefore, he should have no privilege of the said office, nor he could ever be tutor. It was answered, That, howbeit he had so done, he ought not to have been removed from his office, without a decree of a Judge; L. 4. Cod. In quibus casibus tutorem, vel curatorem habenti tutor vel curator dari potest. L. 27. § 1. D. De Testamentaria Tutela. It was found by the Lords, that minors might make warnings without consent of tutors, because it was to their profit; also it was found, that a tutor being nominated in testament, or otherwise, intenting actions either of bastardy or gear against the pupils, before that he accept of the office of tutory, he might never be tutor thereafter; and so the said pursuer was decerned never to have been a tutor to the said pupils, for the reasons foresaid.
