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The deceased John Smiton did, by his latter-will, nominate Margaret Curror, his spouse, Robert and Bessie Smitons, their bairns' executors, and did nominate his wife tutrix, and George Curror of Houden, James Notman, burgess of Selkirk, and James Curror, his father in-law, overseers. The relict meddled as executrix and tutrix, having confirmed the testament, and after her second marriage did meddle also. The children did raise a process against the heirs of James Notman (who, being overseer, did meddle also with the defunct's goods) for all that did belong to the defunct intromitted with by him, or as he who ought and should have intromitted with the profits thereof, super hoc medio, that he was overseer nominated, and if so, pro-tutor, after the second marriage, and death of the relict, by subscribing discharges, and intromitting as tutor. It was alleged, That, as overseer, he could not be pursued, not being any ground of a passive title; nor as pro-tutor, where there was a tutrix nominated. And though he might be conveneable rei vindicatione, in quantum he did actually intromit with, yet not for what he did not intromit with; seeing albeit suo periculo he did intromit with somethings for which he was countable, yet having no legal title by which he could legally intromit, or call and convene debtors and havers of the defunct's goods, he ought not to be pursued for what he did not meddle with, and far less ought to be pursued for the interest. It was answered, That the pro-tutor having meddled eonomine, it ought to be imputed to himself that he had not a lawful title as tutor, who without doubt might have procured a tutory dative, which could not have been denied him; at least if it had, another would have obtained the same, and been forced to find caution: And therefore, seeing he immiscuit se as tutor, he must be liable as if he had been tutor nominated, or tutor in law, or tutor dative; in either of which cases he would have been countable for the whole estate and interest, and for omissa as well as commissa.
The Lords, before answer, ordained the pursuer to produce all the papers subscribed by the pro-tutor which he would make use of to prove the pro-tutory, with a full charge of the commissa et omissa by himself or by the tutrix, or by the rest of the overseers; and then, after consideration of his and their carriage, they declared they would consider in quantum he should be liable, whether for his own omissa as well as commissa, and whether for the omissa and commissa of the rest also.—See No. 148. p. 16273.
