Minor's privileges. - Oath. - Process at a minor's instance to sell land for payment of his debt. - Privilegiatus contra privilegiatum. - How far liable for goods and money furnished to him. - And for money borrowed by his tutor. - May chuse the place of his residence. - Entitled to examine the state of his affairs. - Can a minor pupil contract marriage? - Can a minor be a tutor? - An arbiter? - or a Commissioner of Supply?
Dishington v. Hamilton
Date: 9 May 1558 Case No. No 14.
The nomination of a minor to be a tutor is not null, but he may commence his administration when he becomes of age.
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Anent the action pursued by Thomas Dishington, tutor testamentar of Andrew ——, against Matthew Hamilton for deliverance of the heirs of Andrew to the said Thomas as tutor foresaid, it was desired by the said Matthew, that the said Thomas should produce his title where he was tutor. The said Thomas produced an instrument that he was made tutor by him to whom the bairns succeeded as heirs. It was alleged by the said Matthew, That that was no sufficient title, without he had been made tutor testamentar in a confirmed testament, or else that the said instrument had been confirmed and ratified by the Judge Ordinary; which allegeance of the said Mathew was repelled by the Lords, and the title found good enough by the said instrument allenarly.
And also it was alleged in the said action, for the part of the said Mathew, That howbeit the said Thomas was made tutor as said is, yet he may in no way be tutor of the law, because he was not of perfect age when he was made tutor required of the law. It was answered by the said Thomas, That howbeit he was not of perfect age at the time when he was made tutor, yet he was now of perfect age, and long before the moving of the plea; and howbeit the time of his minority the administration of his office was suspended, yet the office in itself was never null; but how soon he came to perfect age he came to the administration of the said office; which allegeance of the said Thomas was found relevant by the Lords, and that he might use the said office of tutory notwithstanding of the allegeance made in the contrary.
And also it was alleged by the said Mathew, That notwithstanding the tutory foresaid, yet the bairn and heir foresaid should not be delivered into the hands of the said Thomas as tutor foresaid, because when the heir first raised her brieves to be served in her lands and heritage, the said Thomas proponed bastardy against her, alleging her to be a bastard, and therethrough would have denuded her of her heritage; and compelled her to plea the said matter of bastardy in the spiritual court, where she obtained sentence for her, from which sentence the said Thomas appealed, and so the matter depends as yet; and also the said Thomas pursues and alleges, that the whole heritage pertains to him by reason of tailzie, and by that manner would denude the pupil of her whole heritage; and has moved diverse other pleas, to the hurt and wraik of the said pupil; which allegeance was admitted by the Lords, and decerned that the pupil, heir foresaid, should not be delivered to the said Thomas for the cause and suspicion foresaid.
Fol. Dic. v. 1. p. 576. Maitland, MS. p. 126.*** Balfour reports this case:
Ane tutor testamentar may be made be the father, or uther havand powar thairto, under forme of instrument allenarlie, without ony testament or latter will; and gif the tutor be of les age the time of the said constitutioun, he efterwart cumand to perfyte age of 25 zeiris, may enter to the administratioun of the office of tutorie,
