A tutor not doing diligence for bonds left in the defunct's charter chest, which were granted to the goodsire, and never confirmed by the pupil's father, is liable, but the pupils are first obliged to do diligence, that it may be known if the debtors were solvendo.
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In the action of count and reckoning at the Doctor's instance, and Anna Napier his spouse, against the Heirs of Mr James Wood, her tutor, there was an article of the charge bearing debts due upon several bonds to the said Anna's goodsire, whereupon no diligence was done by the tutors. It was alleged for the defender, that these bonds were never confirmed, neither in the defender's father's testament, nor in the goodsire's testament, which was confirmed by their father; and the defender's father, being but one of the tutors to the pursuer, and not giver up of the inventary of the debts, nor knowing any thing of these bonds, he was not obliged to eik the same to the testament, nor pursue therefor. It was replied, that they offered to prove that the said bonds were in the charter chest, which was in the possession of the tutors, so that they might have known thereof, and omitting to do diligence are liable in law. The Lords did find it relevant that these bonds were in the charter chest during the factory, and that the same was in the tutor's possession, but in respect that the said bonds were never confirmed, neither in the father's nor goodsire's testaments, they ordained the pursuer first to insist against the debtors in these bonds, that it might be known if they were yet sufficient or not; and in case of insufficiency, they would then consider how far the tutors ought to be liable.
Fol. Dic. v. 1. p. 240. Gosford, MS. No 254. p. 105.
