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Johnston of Powdoun, younger, being tutor dative to Riddell, his sister's son, did pursue Hayning for payment of 4000 merks due to his pupil. It was alleged for the defender, That he was served tutor of law, at least had raised a brieve of tutory, being nearest agnate, within year and day of his brother's decease, and was thereafter served; so that he being now willing to retour the service, and find caution, he ought to be preferred to the tutor dative; for which he alleged a practick, in June, 1629. The Lords notwithstanding preferred the tutor dative, and found the practick did not meet, seeing Hayning, as tutor of law, had never administrated by the space of four years, being himself debtor to the pupil, whereas the practick alleged the tutor of law was served within year and day, and had constantly administrated the pupil's affairs, which was the reason that the Lords did admit him to find caution, albeit there was a gift of tutory obtained.
