A tack let by a tutor, until a sum lent the tutor should be paid, was sustained even after expiry of the tutory.
A bond granted by a tutor is not good against the pupil, unless the creditor prove it inrem versum.
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John Armour pursues his tenants of some tenements in Edinburgh, for mails and duties. Compearance is made for James Lands, who produces a bond granted by umquhile George Armour, bearing, that George Armour, as tutor testamentar to John Armour, had borrowed 500 merks from James Lands, and obliges him, his heirs, executors, and assignees, to repay the same, and thereby sets some of the said tenements to James Lands, ay and while he be satisfied of the 500 merks, and thereupon alleges he must be preferred to the mails and duties till he be paid. It was answered, this bond and tack was not sufficient, in respect he does not bind himself as tutor, nor the pupil, but his own executor and assignees, and so it must be the tutor's own debt; 2dly, This debt cannot burden the pupil simply upon the assertion of the tutor, but the creditor ought to have seen the sum applied to the pupil's use, and therefore must yet allege in rem versum; otherwise, if the naked assertion of tutors may burden the pupils when they borrow their name, it is a patent way to destroy all pupils, tutors being oftentimes insolvent; 3dly, The tutor could not set a tack of the pupil's lands longer than he had interest as tutor, ita est, the tutory is ceased by the tutor's death.
The Lords found, that this creditor behoved to instruct the sum applied to the pupil's behoof; which being proved, they sustained the tack.
Stair, v. 1. p. 725.Gosford reports this case:
In a pursuit for mails and duties at Armour's instance, compearance was made for James Lands, who, for instructing his interest, produced a bond granted to him by George Armour, tutor to the said John, for the sum of 500 merks, bearing a tack of a tenement of land belonging to John his pupil, ay and while he should be paid; and thereupon alleged, that he ought to be preferred, because it being in the power of tutors to set their pupils' lands, the tacksman had good right thereto, seeing the tutors are obliged in law to count for the rents thereof, for which they ought to find caution, but that will not prejudge the tacksman of the benefit of his tack, etiam functa tutela, the tack being granted for sums of money which the tutor might have employed for the pupil's behoof. It was answered for the minor, that the tutor had no power to set tacks for security of his own behoof, and therefore of necessity the tacksman ought to instruct, that the sum lent to the tutor was employed for the pupil's behoof. The Lords did prefer the pupil, and found that a tack set by the tutor could not endure longer than his own life, or expiring of his office, unless it were for a cause applied to the pupil's behoof, and that the tutor being obliged was not relieved thereof.
