Mr James Stirling v. The Remaining Tutors of Jean Govan
Date: 27 June 1672 Case No. No. 175.
A tutor craved that the co-tutors should find caution to keep him skaithless from their administration. This found incompetent, as the remedy was to remove them when they transgressed.
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Mr. James Stirling being uncle on the mother's side to Jean Govan, and three or four other persons related to her on the father's side, were appointed tutors dative to her; and now Mr. James alleging that the tutors on the father's side did act without him, and did not acquaint him with their meetings, and did out-vote him in the pupil's affairs to her detriment, albeit, by the law all tutors being liable in solidum, he would be liable for their mal-administration; and therefore craved, that the remaining tutors should find him caution to keep him harmless for their acting, or otherwise they would suffer him alone to act, and he should find caution to keep them harmless; as also, that they might renew caution, seeing their cautioner was dead, and none to represent him.
The Lords found the libel not relevant, there being a competent remeid in law to the pursuer for removing the defenders as suspected tutors, if they did malverse, but they sustained only the pursuit for renewing of caution.
Stair, v. 2. p. 91.Gosford reports this case:
The pursuers and defenders being five in number, and all of them being tutors dative, whereof four of them were nearest of kin on the fathers' side, and the pursuer related only by the mother, he did thereupon intent action: That seeing one of the cautioners of those on the father's side was dead, and had none to represent him, and that the said tutors on the father's side, without calling the pursuer, did either administrate, or when they did call him, did combine and outvote him; that either they should of new find sufficient caution to warrant the pursuer from all hazards, or else that he should have the sole administration upon sufficient caution to warrant them from all dangers. It was alleged for the defenders, that they being all conjunct tutors with the pursuer, and having found caution, they could not be removed from their office unless they could libel against them as suspect tutors by reason of malversation.
The Lords did sustain the defence, and found, that the ground of this pursuit was a mere novelty, and that the law allowed no remedy to put a tutor out of his office but as being suspected upon malversation; yet they ordained, that new caution should be found in the place of him that was cautioner for the tutor who was dead.
