Found in conformity with Wardrope against Colquhoun, No 2. p. 6276.
A gift of tutory to an idiot, past in Exchequer, was sustained as a title in an action against the idiot's debtors, though no brief of idiotry was expede; but the pursuer was obliged to find caution to make the sums forthcoming to all parties having interest.
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Mr James Stewart, a person alleged to be idiot or fatuous, and Robert Stewart, Provost of Linlithgow, as he who has obtained a gift of curatory to him past in Exchequer, pursue Mr John Spreul for payment of a debt owing to the idiot. —It was alleged, No process, unless the idiot were declared by a sworn inquest, upon a brief out of the Chancery, and that the pursuer Robert was also declared nearest agnate, and a person fit to administrate; and any gift he has purchased is periculo impetrantis —It was answered, That the allegeance is founded super jure tertii, and is not competent to the defender, whom the pursuer is content to secure by sufficient caution, 2do, Though the nearest agnate were compearing, proponing the defence, yet it were not proper to him, unless he would offer to pursue a brief, and obtain the idiot declared, and himself to be nearest agnate, according to the order of the brief of idiotry; and it is most lawful for the King to grant a gift, when the parties interested will not, nor do not pursue their interest; yea, it is necessary it should be so, lest furious persons and idiots should be left destitute of governors.
The Lords sustained the process, the pursuer finding caution to make the sum forthcoming; without prejudice always to the nearest agnate to serve, in which case this gift is to expire. This they did the rather, that diverse of their number did declare upon their certain knowledge he was turned idiot, et rei suæ minime providus, which if they had not declared, the Lords would have caused produce him before themselves, and examined him whether he had been so or not.
Fol. Dic. v. 1. p. 420. Gilmour, No 67. p. 50.*** Stair reports the same case:
Mr James Stewart, and Robert Stewart, Bailie of Linlithgow, as curator to him, as a furious person or idiot, by gift of the Exchequer, pursue Mr John Spreul for sums of money due to Mr James.—It was alleged no process at the instance of Robert Stewart, as curator, because by law the tutors or curators of furious persons are, conform to the act of Parliament, to be cognosced by an inquest, whether the person be furious, and who is his nearest agnate of the father's side past twenty-five.
The Lords found process, Robert Stewart finding caution to make forthcoming, and declared it should be without prejudice to the nearest agnate, to serve according to the said act of Parliament; for they thought, that as the Lords might name curators ad litem in the interim, so might the King, and that the Exchequer was accustomed to do. See Tutor and Pupil.
