Scottish Court of Session Decisions

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

Doctor Balfour and his Spouse
v.
Wood

Date: 24 February 1670

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In the forementioned count and reckoning between Doctor Balfour and his spouse, and the heir of her tutor, Mr James Wood, there was an article of the charge, bearing that the tutor ought to count for the sum of ———, given upon a wadset, which, being liferented, he ought to have comprised upon a charge against the heir to enter; of which comprising the legal might have been expired; and so the pupil had the irredeemable right of the lands after the liferenter's decease.

It was answered, That the pupil's father himself did lend his money upon the wadset, with a reservation of the liferent of the whole land: And the granter of the wadset being dead, and having neither heir nor executor, nor no other visible estate, the tutor was in bona fide not to comprise; seeing the annualrent of the sums upon the wadset might be yet secured by a comprising by the pupil and her husband, the pursuers, who could not allege any damage by the delaying thereof.

The Lords found the answer relevant to free the defender; as it would have done the tutor himself, who was not bound to give out money upon a naked diligence, which the pupil, being major, might do.

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