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Scottish Court of Session Decisions >>
Muir of Monkwood v Crawfurd of Newark. [1696] 4 Brn 298 (24 January 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040298-0651.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Muir of Monkwood v. Crawfurd of Newark
Date: 24 January 1696
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In the cause Muir of Monkwood against Crawfurd of Newark; this allegeance was proponed,—I cannot pay this sum contained in my father's bond, because your cedent, from whom you derive the right to it, was my tutor, and so prœsumitur intus habere ante redditas rationes, he not having as yet counted with me for his administration. Answered,—That brocard only extended to debts acquired by tutors or curators, durante tutela et curatela; but this debt was in his person before his entry to the office; and not only so, but he was denuded of it by assignation before he became tutor. Replied,—It still remained in ejus bonis, the assignation not being intimated.
The Lords balancing the decision in this case, Cranston and Ramsay against the Earl of Winton, January 24, 1662, and others; they found they mainly struck against debts bought in during the tutory; but, if the pupil's father was debtor to one of the tutors, no law hindered him to pursue his pupil, being authorised by other tutors to pay the same; and the minor's hypothec in bonis tutoris does not reach that case;—Therefore they repelled the defence and sustained proofs at the assignee's instance.
