Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

John Colquhoun
v.
Wardrope

Date: 29 February 1628

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Wardrope being served idiot, his uncle serves himself tutor to him; but finds not caution within year and day. John Colquhoun, brother-in-law to the idiot, takes a tutory from the king, whereby he thought to exclude the tutor-in-law, who had not found caution. The brother of the idiot being thirty years of age, thinking to be preferred before all others, raises a brieve out of the books of Glasgow's chancellary, to be served tutor-of-law to his brother, the idiot, before the bailie of the regality of Glasgow. The tutor-dative raises advocation of his intended service, for two reasons: 1mo. Because tutorem habenti non datur tutor. 2do. Because the bailie has behaved himself partial in this matter. The Lords, albeit they be not in use to advocate brieves, yet thought meet to stay the service, that, in respect of the novelty of the case, the cause might be first disputed before them, whether or no the brother might seek to be served tutor after the king had made a lawful tutor-dative; and, if they found the brother should be preferred, then they would remit the service to be ended before the bailies of the regality, or in case he were suspended before the commissary or other commissioners.—16th February 1628. After the cause was reasoned in the Inner-House, at large, the Lords remitted the service to the Judge-Ordinary, according to the common form of remits; but ordained the parties to have an extract of the Lords' interlocutor apart.—29th February 1628.

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