Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Campbel
v.
Chalmbers

Date: 19 December 1634

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A tutor pursuing the mother of his pupil, for delivery of the pupil, her son, to him, in whose keeping the pupil was ever since his father's decease; the said pupil, now at the time of this pursuit, being divers years beyond the years of infancy; and the mother compearing, and alleging that he had chosen curators, and producing the act of curatory; to which defence the curators adhered; and alleging, that, in respect thereof, the said act of curatory being standing, that the tutor's office ceased, and was expired, and so had no interest to pursue for delivery of the bairn; and the tutor answering, that that act was fraudfully done, seeing he offered to prove that his office was not expired, and that the bairn was still within the years of pupillarity, so that his tutory yet lasts, and that he was still under the danger of administration; and the defender duplying, that the act of curatory standing, the curators had the charge ay and while the act of curatory were reduced;—the Lords repelled that allegeance, and found the tutor's reply relevant, viz. that the bairn was yet within 14 years of age, and so within the years of pupillarity, so that his tutory (that being proven,) yet continued; and that he had reason to pursue for delivery of the pupil, and that he had no reason to reduce the act of curatory, the defender never alleging that the bairn was past the years of tutory: for the bairn, being proven to be yet within the years of tutory, he needed never to reduce the act of curatory, the length of which process might endure while his office were expired; and the danger of the not administration of his office, in the meantime, might tend to his prejudice.

Act. Gibson. Alt. Miller. Scot, Clerk.

Page 742.