Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Adam Stevin v. Bailie Boyd
1667.
January and
June29.
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January. — Bailie Boyd being pursued by his stepson, Adam Stevin, for count, reckoning, and payment-making to him of his portion natural, the Bailie being his tutor and curator:—
Wherein the Lords found a tutor not liable in diligence for such debts as either the debtor thereof was known to be irresponsal, or were so reputed and holden the time of his office; because he was not bound to expend his pupil's estate unprofitably, or whereof he would get no allowance, nor was he bound to expend his own. And they found this allegeance relevant to be proven prout de jure, was negativum circum scriptum, and resolved in a positive; but what length of diligence he was tied to, whether decreet, horning, and caption, as to moveables, and comprising as to heritage, they have not as yet determined. For in law tutores tenentur de culpa levi et lata, but not levissima.
June 29.—In the foresaid cause, Bailie Boyd and his stepson, 1mo, Found that a tutor is not bound in diligence against irresponsal debtors, whether absolutely so, or so reputed and holden. 2do, They found that irresponsality probable prout de jure. 3tio, They found the burden of the probation of irresponsality incumbent to the tutor who alleged the same. 4to, They found tutors liable in this length of diligence, viz. horning, caption, and poinding, for moveables, and apprising for heritage and lands. 5to, They found the tutor liable in annualrents for debts not bearing annualrent, and that within a year after the confirming of the father's testament wherein the pupil was executor. 6to, They found that legacies paid by the tutor, though without a sentence, relevant to exoner him, if they were due in law. All thir points were discussed in præsentia, referente Domino Newbyth.
