A tutor assigned a bond granted to himself, but bearing to be the pupil's money.
After many years, the pupil having sought it, it was presumed he had settled accounts with his tutor.
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One Wier being made assignee by——, in and to an obligation of monies, which the said obligation bore the cedent to have lent out to James Dalyell and James Arnot debtors, in the name of —— his pupil, to whom this cedent was tutor, and bearing to be the said pupil's proper monies; and the said debtors being by the bond obliged to pay it again to the tutor's self, his heirs, executors, or assignees, &c; whereupon the assignee having charged James Arnot to pay, and he suspending upon this reason, that (the monies belonging to the pupil) the tutor, albeit the bond bore that the monies should be repaid to him, could not make any profitable assignation thereof; and that the said pupil being now past the age of minority many years since, it being 34 years, or thereby, since that bond was made, and he hath never sought it, that must be a great presumption, for the payment thereof; and if he shall seek it, the suspender shall give him either satisfaction, or then shall be content that sentence pass against him; but he being only bound for James Dalyell, and after so long time, all process ought to cease at this assignee's instance made by the tutor, who could never have made any such effectual assignation of his pupil's monies. The Lords found this reason noways competent for the suspender to allege, he being debtor, and never alleging payment made to the pupil, and the pupil's self not opponing to this charge, for it might be that the tutor in his tutor-compts had charged himself with this article of debt to the pupil, and had taken order with him therefor; for which cause, and in respect that the assignee charger offered caution to relieve him at the pupil's hands, which the Lords sustained and ordained to be received, the letters were found orderly proceed at the assignee's instance. See Tutor and Pupil.
Act. ——Alt. Johnston.
Fol. Dic. v. 2. p. 163. Durie, p. 805.
