Click here to view a pdf copy of this documet : PDF Copy
The Commissary of Dunkeld, as assignee constituted by N. pursued Robert Abercromby, as heir, at least lawfully charged to enter heir, to his umquhile father, who was tutor to the foresaid N. to hear and see him decerned to make payment to him, as assignee foresaid, of the mails and duties of certain lands pertaining to N. cedent, which the defender's father, as tutor, had intromitted with, by virtue of his tutory. The pursuer, in absence of the party defender, who would not compear, produced for verifying of his libel, the act of tutory, and sicklike where the tutor had made faith before the Sheriff of Perth de fideli administratione; but there was no act of curatory produced. The Lords, though there was no compearance, would not sustain that alternative of the libel, “at the least might have intromitted with,” in respect it was not shown that the tutor had found caution, before the doing whereof he was not lawful tutor, neither could intromit with his pupil's goods, if it had been opponed to him by the tenants, or others in whose hands they were, that he had not yet found caution: Sicklike he might have repented himself, cum res adhuc essent integræ, before caution found.
Spottiswood, p. 345.
*** See Durie's report of this case, No. 38. p. 3502. voce Diligence.
