Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION III.

Public Instrument, how far Probative.
Subject_3 SECT. IV.

Decrees, Acts of Court, &c.

Kirktons
v.
Laird of Hunthill

Date: 31 January 1665
Case No. No 411.

A tutory found not to be instructed by a confirmation bearing that the tutor accepted and made faith.

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Two sisters called Kirktons, having obtained decreet against the Laird of Hunthill for their mother's executry, who left Hunthill, her brother, and two other tutors to her children, in so far as concerned the means left them by their mother; Hunthill suspends, and raises reduction on this reason, 1st, That the only ground of the decreet being a confirmed testament, bearing, That Hunthill compeared and made faith and accepted the office of tutory, this cannot be sufficient of itself to instruct he was tutor, seeing acts of inferior courts prove not in any thing but in points of form of process, which are ordinary, but in aliis prove not without a warrant; and therefore, unless the warrant of this acceptance were produced, it cannot prove more than an act of tutory or curatory, or cautionry, will prove without its warrant; and therefore now they crave certification against the same; 2dly, Neither their subscription to the act nor the principal testament itself can be found, though the registers of that commissariot be searched, and others about that time found; neither can it be astructed with the least act of meddling any way; 3dly, A mother cannot name tutors, but the father only, it being patriæ potestatis. It was answered, That albeit in recenti the warrants of such acts ought to be produced, or they are not effectual without the same; yet it being thirty-seven years since this confirmation, after so many troubles, the chargers are not obliged to produce the warrants, being such inconsiderable little papers as they are, but they must be presumed that they were so done, as is expressed in the public record; seeing this process has lasted these twelve years, and before nor since, till within a year, no mention thereof. It was answered, That there was no prescription run during which, if at first the chargers were obliged to produce, they are still so, unless they could fortify and astruct the truth aliunde, and their silence said nothing, because it was the charger's fault that pursued not till within these twelve years; whereas, if they had pursued timeously, the suspender would then have pursued a reduction. It was answered, They were minors in the suspender's own house the former time, who would not have kept and entertained them at all, if he had not known of the tutory, and that they had means.

The Lords found that this naked testament was not sufficient to astruct the acceptance without further adminicles.

Fol. Dic. v. 2. p. 248. Stair, v. 1. p. 261.