How far the tutor liable for insolvency of debtors.
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In an action of tutor counts, Watson against Watson, the Lords found that the tutor ought not to be answerable for any debts owing to the minor by person qui non erant solvendo, and that his not doing of diligence, by interning of process, and raising of charges or letters of horning against them, could not burden him, nor make him subject to the pupil for his omision; in respect whatever should have been depursed in pursuing of such debts, was but unprofitable spending of the minor's money: And therefore the Lords found the tutors' allegeance relevant, viz. The debtors were not able to pay; but astricted the tutor to prove by the neighbours, and such others who knew the debtors, that they were repute and known in the country, to be unable either in lands or goods, to satisfy the debt owing to the minor; which being proved, the Lords declared it sufficient to liberate the tutor, albeit he had done no diligence; but if the minor would allege, that the debtors were solvendo in lands or goods, then the Lords would prefer that to the allegeance of their inability alleged by the tutor, and admit to the minor's probation to elide the tutors' exception of their insufficiency; which allegeance of their sufficiency being proved, they found the tutor's negligence a sufficient cause to make him answerable for the debt.
Item, in this same process they admitted an article of defalcation, founded upon the tutor's entertaining of the minors after the expiring of the years of the tutory, and divers years after they had chosen curators; and found that the entertainment after the tutory should compense with the sums acclaimed by the minors pro tanto, and would not put the tutor to any further process to pursue an action therefore against the minor or his curators, but found it might be received in the same process to compense, ut supra.
