Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XV.
Tutors and Curators.
Elleis v. Scot
Date: 14 February 1672 Case No. No. 89.
Tutors being nominated, without mention of conjunctly and severally, or of a quorum, those who accepted were found authorized to act.
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Mr. John Elleis having charged Mr. George Scot for a bond granted to him, he suspended, and alleged, That Mr. John was his tutor, and it behoved to be presumed intus habuit. The Lords superseded to give answer till the tutor's accounts were closed; in which it was alleged, That there being five tutors nominated, without mentioning conjunctly and severally, that two only having acted, they could not be liable as tutors, because the nomination being of five, it must be understood to be those jointly, not being otherwise expressed; so that those who acted, having no sufficient active title by which they could have pursued as tutors, they can only be liable as intromitters, in so far as they actually intromitted, and not pro omissis.
The Lords repelled the defence, and found the accepting tutors liable for omission and intromission.
Fol. Dic. v. 2. p. 384. Stair, v. 2. p. 69.*** Gosford reports this case:
In a count and reckoning at Mr. George Scot's instance against Mr. John Elleis, as tutor, he having charged Mr. John with several articles of omission, seeing he was not in a capacity to act as tutor, for, by the nomination in the testament, there were five tutors nominated, without any quorum, who did not all accept, and therefore the tutovy was void in law, and John did only administrate as a friend, or as a negotiorum gestor; it was replied, That the nomination of five, not bearing that they were all joint tutors, but only that those five were tutors, without any quorum, it gave full power to any one of them who did accept to administrate; and, in case of their administration, they ought to count as well for omissions as commissions, unless they can allege that some of the rest did likewise accept and administer, quo casu, they might all be convened in an action of count and reckoning, at the pupil's instance; but, even then, every one of them are liable in solidum to the pupil both for omissions and commissions.
The Lords did repel the defence, in respect of the reply, and that notwithstanding of a former practique betwixt Swinton and—————; for they found, That any tutor nominated, and accepting, and intromitting, is liable to the pupil to count for his whole estate, as well omissions as commissions, seeing it is free to a tutor nominated to administer or not; but, having once administrated as tutor, he is passive liable to the pupil for all that, he can be charged with; otherwise, the condition of pupils would be most uncertain, and might suffer infinite prejudice, without remedy.
