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Scottish Court of Session Decisions >>
Lord Mersington, &c. v Mr Hary Fletcher. [1695] 4 Brn 272 (00 January 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040272-0612.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Lord Mersington, &c v. Mr Hary Fletcher
1694 and
1695.
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1694. July 3.—The Lords considered the bill given in by my Lord Mersington, and the other friends, on the mother's side, to Fletcher of Aberlady, against Mr Hary Fletcher his tutor, that he was remiss in pursuing the reduction of a decreet obtained against the minor by his brother curators,—tiz. Blackbarony, Salton, and Sir Patrick Murray, in buying the Lady Aberlady's jointure; and, therefore, craved that a curator ad hanc litem might be named, and a sum modified for carrying on the process.
The Lords thought this equivalent to an action for removing him from the tutory as suspect, in regard Salton, his brother, was one of the defenders, and he not being a member of the house, he could not be summarily proceeded against; therefore, they would not receive it hoc ordine, seeing tutorem habenti tutor dari nequit; but ordained him to insist with all diligence in that action, with certification if he did not, they would remove him: and declared, that, whether he, or any, debursed the expenses in the cause, they should be allowed in their accounts. And, as to his renewing his caution; in regard his former cautioner was dead, they waved that; seeing he, as tutor-dative, had found the said caution to the Lords of Exchequer, and so they were the properest judges, whether he should find new caution again or not.
Vol. I. Page 625.
1694. February 26.—The Lords decided the competition for the tutory of Fletcher of Aberlady, between Mr Henry Fletcher, the former tutor, mentioned 3d July 1694, and Cumming of Culter, the tutor-dative, now nominated by the Exchequer, who had assigned diets from time to time, to Mr Henry to find new caution, as his former cautioner was dead, and had no representatives; and he having failed, the Exchequer removed him, and gave the tutory to Culter, who found sufficient caution. The debate arose, If the Exchequer were competent judges to the deprivation of tutors, that being a point of civil right; for, though they give tutors, yet they cannot remove them. Actio suspectaœ tutelœ, (whatever summary dispatch it requires, ut res pupilli salva sit,) yet is always pursued before the Lords. But, seeing Mr Henry had not his new cautioners ready, and those he offered were already bound to the minor, and had not yet cleared their former accounts,—(viz. Salton and Sir Patrick Murray:)
The Lords found the Exchequer's decreet res judicata, and would not make the two judicatories interfere, but preferred Culter; though some of the Lords inclined first to have the custom tried, what was the Exchequer's practice in removing tutors.
