In conformity with Auchterlony against Oliphant, No. 120.
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The like (as in No. 120.) was found between a tutor of law and a tutor dative, where the lawful tutor having got himself served debito tempore within the year, yet not having found caution two years thereafter, medio tempore Alexander Bannerman of Elsick takes a dative, and with the pupil, Margaret Irvine, pursued an exhibition of some writs, &c. that were in the lawful tutor's hands; who having compeared, and alleged, that he having found caution, though after the dative, should be preferred; the Lords did accordingly prefer him to the tutor dative.
Spottiswood, p. 348.*** Durie reports this case:
One Irvine being served tutor lawful to a pupil, but not having found caution de fideli administratione, as use is, divers years after he was served Bannerman of Elsick takes a tutory dative to the said pupil, and finds caution, and intents action thereon for delivery of some writs of the minors to him as tutor; and the other tutor lawful compearing, alleging that the dative had no place to call for the same, seeing he was tutor lawful, served and retoured debito tempore, within year and day, and so had only interest to pursue for the pupil, as his tutor; and the dative alleging, that this service was alike as if he had not been served, seeing he had not found caution, whereby the service was void, and he had expede a tutory dative, which behoved now to have place, seeing the tutor lawful had found no caution; and the other answering, that seeing the tutor was retoured debito tempore, the not finding caution could not make it to fall, seeing he now offered caution, and that the pupil sustained no prejudice in the mean time, and that he as lawful tutor had intromitted, and had the handling of the pupil's affairs, for the indemnity whereof the cautioner now found would be liable ab initio, so that the pupil could have no prejudice; and the dative contending, that it was no time now to offer caution, after his gift was expede, and caution found by him, and after the other's so long cessation, which made him to fall from his office, the Lords found, that the not finding caution within the year by the tutor lawful, and the intervening dative, and caution found by the dative, before any caution found by the tutor lawful, was no cause to exclude the tutor lawful, and to prefer the dative, but preferred the lawful to the dative, notwithstanding of the lawful tutor's cessation to find caution, divers years after his service, and permitted him yet to find caution, which was received, seeing the tutor lawful had administrated ever since his service, and that it was not qualified, that the pupil had received any prejudice, or that the tutor lawful had done any wrong.
Act. Mowat.Alt. Davidson.Clerk, Gibson.
Durie, p. 638.
