In an action against a tutor's heirs, the court would not sustain process, till the co-tutors were called; for the heirs could not know the administration, or how to account.
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Mr Alexander Seaton, heir and executor to James Seaton his brother, pursues George Seaton as heir to his father James Seaton, for making his father's tutor accounts, as being tutor to the pursuer's brother; and for instructing that he was tutor, produced several writs subscribed by him, as tutor testamentar. The defender alleged, 1mo, That the condescendence was not relevant to instruct the defender's father tutor, unless the testament whereby he was nominate were produced; otherwise his acknowledgement can only make him but pro-tutor; and so not liable for all omissions, and no sooner liable than after the date of these writs; 2dly, Albeit the defender's father had been tutor, yet by the writs produced, it is evident that he was but one of more tutors; and therefore no process against him, till they be all called. The pursuer answered, That the acknowledgement to have been tutor was sufficient against him, who subscribed the same: nd that there was no necessity to call all the rest, seeing the whole tutors were liable in solidum, and as ordinarily, parties bound conjunctly and severally, may be convened conjunctly or severally, so may tutors, who as others may except upon the performance of other tutors as well as their own; neither is the case of tutors alike with cautioners, who are not liable in solidum; for tutors, as they are liable conjunctly and severally for the whole office, so are they convenable conjunctly and severally for the same.
The Lords repelled the first allegeance, and found the writs produced instructed the defender's father tutor, and not only pro-tutor; for if the testament had been produced, shewing other tutors, so that the acknowledger could not have been tutor testamentar, it would have made him but pro-tutor, but that not being, it instructed him tutor. As to the other point, in respect the tutor was dead, and his heir only but convened, who could not know the administration, the Lords would not sustain process, till they were also called.
