Scottish Court of Session Decisions

Subject_1 ANNUALRENT.
Subject_2 ANNUALRENT due by TUTORS and CURATORS.

Davidson
v.
Jack

Date: 22 February 1634
Case No. No 45.

A tutor uplifted his pupil's money, and died soon after, before laying it out on interest. The heir, an infant at the time, found liable only from the time of intenting action against him, which was not till after twenty-five years.

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One Davidson conveened one Jack in Dundee, as heir to his father, another Jack, who was one of the tutors to the said pursuer, to make payment of 600 pounds, intromitted with by the said tutor, with the annualrent ever since, conform to the said umquhile tutor's discharge, upon the receipt of the said sum from the pursuer's debtor, viz. By the space of 25 years bypast, since the date of the discharge; wherein the defender alleging, That he could not be conveened in solidium for the whole, because the pursuer had two tutors given conjunctly, likeas the acquittances were subscried by them both; and therefore he alleged he could only be liable for his own part, and the other tutor should be subject in the other half, especially seeing he was the pursuer's own uncle.——The Lords found, That the pursuer might pursue any of the tutors as he pleased in solidum for the whole debt received; for any of the tutor's omission would make the tutor liable for all, far more their intromission, without necessity of division: And in respect the defender, the time of his father, (who was tutor,) his intromission, was only a pupil, of two year's old, and that his father died immediately thereafter, and that his father had not the exercise of the office of tutory, but one year only, and that he could not be acquainted that his father was tutor, nor what deed he had done as tutor, and that there was no pursuit moved against him all this time these 25 years bypast, but only within these two or three years last bypast; therefore the Lords found, That he was not subject to the pursuer in any annualrent, for the sum received by his father as tutor, as said is, except only for the terms and space since he was cited in this action, viz. By the space of two or three year, but for no other term or year preceding; and therefore assoilzied him from all preceding terms. And so this privilege of minority, or privilegiatus, was found considerable against another minor; albeit this cause has no affinity with privileged causes, tending only (as is requisite in all law) that minor's money, received actually by their tutors, should not be kept from the minors idly; and that the mischance of the tutor's death ought not to prejudge him of the ordinary benefit in law of tutor compts; but the cessation moved the Lords to assolizie from the bygone annualrents. (See Solidum et pro rata.)

Act. ——. Alt. Rollock. Clerk, Gibson. Fol. Dic. v. 1. p. 40. Durie, p. 705.