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A tutor dative is found to have right to call for the pupil, who being a lass of 5 or 9 years of age, in her mother's keeping, and notwithstanding her mother offered to entertain her daughter gratis, yet because the mother was married to a second husband, and the tutor offered to entertain the pupil gratis, he was preferred.
Auchinleck MS. p. 243.*** Durie reports this case:
Hary Gordon of Kinstuir, as tutor-dative to Anne Hathorn, a pupil, pursues Geills Corsan, mother to the bairn, and Hugh Kennedy her second spouse, for delivery of the bairn to him, to be educated by him as tutor; and the mother alleging, that she ought to have the keeping and education of her own bairn, seeing she was not past 5 years of age, and of the law being within infancy, the mother should be preferred to the tutor, both for that reason of infancy, and for that natural affection in-bred in the mother, which will beget a more allowable care of the education of her own only bairn, than can be presumed in a stranger;—likeas she offered to entertain her gratis, without craving any allowance therefore off the pupil's means; and this tutor is suspicious to have the keeping of her, because his son in law is nearest of kin to succeed to her; notwithstanding whereof the Lords preferred the tutor to the mother in keeping the bairn, because the mother was married, and so by the superinducing of a vitricus to the bairn, she was in potestate maritii herself, and consequently she could not claim the charge of the pupil, who was herself under her husband's charge; and also because this her husband had comprised the bairn's estate, for debt, whereunto he was made assignee by her father's creditors; and also in respect that the tutor sick like offered to entertain the bairn on his own charges, without seeking any allowance or defalcation of the bairn's means therefore; for which reasons the tutor was preferred, albeit the mother alleged that superinductio vitrici might well make the mother fall from the tutory, if she had been tutrix-testamentary, but will not in law make her to amit the benefit given in law to her, of educating her daughter within the years of infancy; and seeing in law multum tribuitur arbitrio judicis, to estimate ubi et apud quem pupillus educari debeat, she alleged, that her motherly affection, and the sex of the pupil, should rather move the Judge to incline to the mother than to the other; and as to the comprising used by her husband, it is to be presumed, that it is more probable and profitable, that that right should remain with her husband, who may and will use the same to the good of the bairns, than if it had been deduced by the creditors, who are mere strangers, and are not to be presumed to have carried the like respect to the pupil; notwithstanding whereof the tutor was preferred, as said is.
Act. Gilmour.Alt. Mowat.Clerk, Gibson.
Durie, p. 625.
