Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Erskine
v.
Wilson

Date: 21 February 1670

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In a reduction of a tutory-dative, pursued by Erskine against Wilson, upon this reason,—That Erskine was nearest agnate, and was to serve himself tutor-of-law: It was answered for the defender, That not only year and day was elapsed, but several years, during which there was another tutor-dative, who served until his death.

It was replied, That the pursuer, within year and day, did come from Flanders of purpose to have administrate; but, being employed during the war in one of the King's ships, he was taken, and so made prisoner of war, until of late that he was liberated, and immediately after came home to serve himself tutor-of-law; and, therefore, being absent reipublicæ causa, jure post liminii, he hath right to the said office.

The Lords did sustain the answer, notwithstanding of this reply; and would not find, that every private person, who engaged in the war willingly for his own advantage, could be said to be absent reipublicæ causa. But thereafter, the defender offering to renounce, upon sufficient caution to the pupil, and a discharge to himself, his tutory was reduced.

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