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Mrs. Grizel Bruce, Lady Riddoch, v Hugh Forsyth of Garval. [1708] Mor 16326 (31 December 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor3716326-248.html Cite as:
[1708] Mor 16326
Mrs Grizel Bruce, Lady Riddoch, v. Hugh Forsyth of Garval
Date: 31 December 1708 Case No. No. 248.
A tutor found liable to account as such to the minor for rents that were no part of the patrimonium pupillare, in respect these had been uplifted and discharged by him tutorio nomine. But the minor being nearest of kin to the person to whom they belonged, was ordained to establish a title in her person as executrix to him, that she might, upon payment, discharge effectually the tutor's representatives.
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James Alexander, in his daughter's contract of marriage with William Bruce, brother to the Laird of Auchinbowie, “disponed his lands of Riddoch in favours of the said William Bruce and Janet Alexander in conjunct fee and life-rent, and to the heirs of the marriage in fee, reserving to the said James Alexander, the disponer, and Grizel Inglis, his spouse, during all the days of their life-time, two chalders of victual allocated upon a particular part of the said lands.” William Bruce died before James Alexander and Grizel Inglis, leaving James Forsyth of Garval tutor-testamentary to Grizel Bruce, his daughter; who possessed and uplifted as tutor the rent of the whole lands, including the reserved two chalders of victual, for several years. After expiring of the tutory, Mrs. Grizel and her curatrix pursued Hugh Forsyth of Garval, as representing the said James Forsyth, the pursuer's sole tutor, to count and reckon; in which process, she charged him with the two chalders of victual reserved to the grandfather and grandmother, for so many years as they were uplifted by James Forsyth tutorio nomine.
Answered for the defender: He cannot be charged to count to the pursuer for the rent of the life-rented lands, which were no part of the patrimonium pupillare, but he is liable in repetition for the same to the representatives of the pursuer's grandfather, who can only exonerate him effectually; neither doth it alter the case, that the pursuer represents her grandfather, seeing the defender can only be liable to count to her, as executor to the grandfather, for the simple rents, without interest; whereas, in a count and reckoning with her as a pupil, he would be liable also for annual-rent of these rents.
Replied for the pursuer: The tutor having uplifted the reserved rents tutorio nomine, it is not the defender's business to dispute the pupil's right to the same; for, if tutors were allowed to free themselves from this way of counting for the pupil's rents, because the pupil had no right thereto, it were of dangerous consequence, and might induce tutors to propale the secrets and latent defects of their pupils' rights, in order to free themselves from a count and reckoning.
The Lords found, That the defender must count as tutor to the minor for the reserved two chalders of victual uplifted and discharged by James Forsyth tutorio nomine; but, for the defender's further security, ordained the pursuer to establish a title in her person as executrix to the grandfather, that thereby she may discharge the defender, upon payment.
