Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by TUTORS and CURATORS.
Mr William Kintor, Advocate, v. John Boyd, Bailie in Edinburgh
Date: 27 January 1665 Case No. No 40.
Annualrents of sums falling due pendente tutela, are to be accumulated into a principal sum bearing interest, but once during the tutory.
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Mr William Kintor and John Boyd having both adjudged the lands of Mountlothian, pursue mutual reductions of each others rights. Mr William's right was upon a decreet cognitionis causa, against the apparent heir renouncing; against which John Boyd alleged, That the adjudication was null, proceeding upon a null decreet cognitionis causa; 1mo, In so far as it was libelled at the instance of Kintor, as assignee by his brother, who was heir to his father, and executor and neither retour nor testament produced; and so was null, for want of probation.—The pursuer answered, That he had now produced, in supplement of the decreet, the writs.
The Lords sustained the decreet only as ab hoc tempore.
2do, Boyd alleged, That the decreet cognitionis causa proceeded on 600 merks, which was heritable by infeftment, and contained clause of requisition, and no requisition produced.
The Lords found the decreet null, pro tanto, and to stand for the rest, being upon diverse articles.
3tio, Boyd alleged, That the said decreet ought to be reduced, in so far as it proceeded against the cautioner of a tutor, for payment of the annualrent of his pupil's money, during the tutory, and for the annualrent of that annualrent, a tutela finita, because the tutor had uplifted, at least ought to have uplifted, and employed the same for the pupil's behoof, ex officio.—It was answered, That albeit tutors are obliged for their pupil's rent, which are in tenants hands, yet not for the annualrent of their money, being in secure hands then; and now if the tutor had lifted it, it would have been lost, he being broken, and the cautioner also; and the debtors being great men, as the Marquis of Hamilton and Lord Burghlie, they would easily have suspended, and lost the pursuer's pains.
The Lords found, That tutors were obliged to uplift their pupil's annualrents, though the creditors were secure, and to employ them for annualrents, but not for each year they were due, but ante finitam tutelam; because, though he had them, he was not obliged every year to employ them severally, and so sustained the decreet.
4to, Boyd alleged, That the years of the tutory ought to have been proven, which was not; and so the decreet is null.
The Lords sustained the decreet, seeing it was libelled in, communi forma, unless it were alleged, that some of these years were post finitam tutelam; here a testificate of the pupil's age was produced.
