If a tutor in law do not find caution within the year, his service expires, and the King may name a tutor-dative.
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A tutor-dative given by the King offering caution in due time before inferior Judges should be admittit to the administration, and so preferred to the tutor of law that is served tutor within year and day, gif his caution be not received before the Judge within the said space, yea, albeit his caution be offered and received, before the Judges received the tutor-dative's caution; for if the tutor of law's caution be not found within the said space, the service expires in the self, and prescribes in sic sort, that the King may dispone the dative thereof, quia via solemnia juris debent per impleri per tutorem legitimum infra annum et diem, neque purgatur mora ejus; although within eight days after the prescribed time he offered and gave caution; yea albeit he both offered caution, and the same received and marked before the tutor-dative offered and gave caution, in pretermitting the time prescribed to do that thing which is principally required. De necessitate actus tutoris legitimi locum cedit tutori dativo, who may at all time thereafter, viz. after the issue of year and day, seek the said office of tutory from the King; nor yet is it sufficient to the tutor of law being serving in due time to offer caution at any time thereafter when he pleased, quatenus actus debet per implori infra annum, alioqui nihil agitur, neque purgatur mora, although he either offer or give caution before the dative; for divers causes; 1st, Quia quoties pæna infligitur a jure, vel aliquid prætermittit a tempore prescripto, a jure mora non est purgabilis, quia nihil agit, consetur, ut dictum est; 2do, If the gift be given to the tutor-dative before the tutor of law offer caution, accumulando jura juribus purgafio moræ non admittitur, howbeit the time to find caution prescribed is not come, quia jam obstat medium impedimentum dativi, et hoc de facto diligentiæ legitimi tutoris, vel ratione ejus culpæ; qui negligenter prætermissit, quod fateri debuit, as was in the action betwixt Mr. Thomas Craig, advocate, and William Johnston, (infra;) for this Johnston was served tutor of law, and pretermitted the caution until the year and day was gone; after the which Mr. Thomas Craig got the office of dative from the Prince, and offered caution, but the Bailies of Edinburgh remembering that William Johnston was served tutor of law, denied to receive Thomas' caution while they were farther advised, which, when William Johnston heard the combat, three days after the year and day, and offered caution, which the Bailies received; and Mr. Thomas perceiving this, meaned himself to the Lords, who received his caution; but the question thereof was moved before them, Which of the two should have the administration of the bairn called Johnston, brother's son to the said William, and sister's son to the said Mr. Thomas Craig? But the Lords, after divers informations given by the parties foresaid, decerned as said is, that the; dative should be preferred for the cause foresaid.
