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John Lyon of Inneresk, as tutor testamentar to James and Alexander Annans, charges Sir Robert Farquhar for payment of 3200 merks of principal owing to umquhile Mr. Thomas Annan by bond, payable to him, and, after his decease, to his two bairns; who suspends, upon this reason, that, by the testament wherein he is tutor nominated, he has only power to uplift the annual-rent; likeas, the principal sum is sufficiently secured by responsal cautioners, and (if need be) the suspender is willing to give further security, at the sight of the Lords. It was answered, That by the testament he is simpliciter nominated tutor; and though the after words of the testament give him power to uplift the annual-rent, yet it excludes him not from doing diligence, and to uplift the principal sum; and if he should do no diligence, he would be liable to all hazard; neither will the charger debate, whether the present security be sufficient or not; but it is sufficient that the tutor, being unquestionably responsal, desireth to have power of the money himself, to the behoof of the pupils, that when their necessity shall urge, either for putting them to callings, or otherwise, he may be readier to make it furth coming, as becometh a faithful tutor.
The Lords sustained the charge for the principal sum.
