The heir being tutor to the executor, did, among the other goods, confirm an heritable bond in his pupil's name. This was found not to be meant a donation, but rather presumed to be an error juris. See No 192.
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The Laird of Orkhill being debtor to umquhile John Dickson, flesher, in the sum of 200 merks, by a bond bearing to pay annualrent, and the said creditor living until the said term of payment was bypast, whereby the bond was of the nature of an heritable bond, and the said Laird of Orkhill, debtor, suspending upon double poinding, being distressed by the heir and executor of the said umquhile John, who both claimed the right of the sum, viz. the heir, as belonging to him, the bond being heritable, as said is, and the executors claiming the same as due to them, in respect the heir, who was eldest brother to the execulors, was their tutor, and that he had confirmed the defunct's testament, wherein he, as their tutor, had confirmed the same bond controverted, as pertaining to them as executors; likeas, since he as their tutor had recovered decreet against the Laird of Orkhill, at his instance, as tutor to them, for payment of the said sum as due to them; in respect whereof they alleged, That the heir could not pretend right to this sum, which he sciens, prudens & major, had acknowledged to be their moneys, and consequently that Alexander Denneston, who was made assignee by the heir to that sum, could not seek the same, as pertaining to the heir: The Lords, notwithstanding of the allegeance proponed for the executors, preferred the heir, and found that the sum belonged to the heir, and consequently to his assignee, seeing the same was owing by an heritable bond; and found, that the error committed by the heir in being tutor to the executors, and confirming this debt, and recovering sentence for this sum, at his instance, as tutor to the bairns, did not prejudge him of the right to that heritable bond, and that by that error the right was not acquired to the executors after such a manner; but that notwithstanding of that error, he might return and clothe himself with his own right, and consequently that the heir's assignee ought to be preferred, and that the heir by the deeds foresaid was not denuded, as if it had been a donation, except that the executor will allege that the heir had done these deeds of confirming, and pursuing as tutor, after that he knew and understood that the bond in law did pertain to himself as heir.
Alt. Craig.Alt. ——
Fol. Dic. v. 2. p. 150. Durie, p. 849.
