Scottish Court of Session Decisions

Subject_1 SUMMARY DILIGENCE.

Ayton of Kinnaldy
v.
Margaret Scot

Date: 18 January 1711
Case No. No. 22.

No summary diligence against a pupil for a debt contracted by his tutor.

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Sir John Ayton of Kippo having disponed his estate to Ayton of Kinnaldy, he burdens him with 2500 merks, to be paid to Scot of Balmouth, his nephew; who dying, Margaret and Marjory Scots, his sisters, as executrixes to him, pursue Kinnaldy for payment of the foresaid legacy. He defends, That it was extinct by their brother's death, and not transmissible. The affair being dubious, they enter into a submission to two of the Lords of Session; and, in regard the said two gentlewomen were pupils, Mr. Rolland, their father-in-law, submits for them, and takes burden; and a decreet-arbitral following, Kinnaldy is decerned to pay the 2500 merks to them, but without any annual-rent. Accordingly, Kinnaldy makes payment of it to Rolland, the tutor, and recovers his discharge; but not thinking himself sufficiently secure, he registers the decreet-arbitral, and, raising horning thereon, charges Margaret to give him a discharge. She suspends, on this reason, That the charge is most unwarrantable and illegal, (and the writer who raised it deserves censure); because, though our names be in the submission, yet we are not submitters, but only the said Mr. William Rolland taking burden for us tanquam quilibet, without so much as designing himself our tutor-dative; and though we be decerned to give a discharge, yet that is ultra vires compromissi, we not being submitters, and are minors lesed; seeing, if the plea had been prosecuted, we would have got more in the event than this decreet gives us; neither can tutors submit or transact their pupils' interest, but on their own peril, if it be not advantageous; and therefore it could be no ground of a summary charge against them, but only the foundation of an ordinary action. Answered, That a tutor having submitted his pupils' claim, and signed in their name, if a decreet-arbitral follow, decerning the pupils, and the tutor in their right, to perform such deeds, and bearing a clause of registration for letters of horning to pass thereon, the same will be a good ground for a summary charge against the pupils, when they come to majority; the tutor's deed being theirs, he integrating their legal incapacity to act. And as pupils have the benefit of transactions made by their tutors, in their name, so they must likewise be bound ex facto tutoris; and if there be any prejudice, they have the privilege to seek restitution in integrum; and decreets-arbitral now are the strongest of all sentences, being only impugnable for bribery, corruption, or falsehood. It is true, tutors have no power to submit or transact their pupils' clear liquid rights, where there is no lis, nec metuitur, or is heritable; for their submitting on such is species alienationis, unless the authority of a Judge be interposed; but in dubious, controverted cases, it may be good service to the pupil vexationis redimendæ gratia to prevent expenses, and the risk of losing the cause: And, in January, 1691, the Lords sustained a transaction made by Fletcher of Aberladie's tutors, whereby they bought the widow's life-rent at five or six years' purchase, and she died within the year; but, in that case, the minor had ratified it upon oath, never to revoke it, being before the prohibitory act in 1681. The Lords did not determine how far tutors might bind minors by submissions, but only found, That the decreet-arbitral could not afford the ground of a summary charge against the pupil, but only the foundation of an action, in which they would be decerned to implement and fulfil, unless they instructed evident lesion.

Fol. Dic. v. 2. p. 404. Fountainhall, v. 2. p. 627.