Consent not presumed, when the Deed can be ascribed to another Cause.
Adam Caldwall v. Margaret Caldwall and Chalmers her Tutor
Date: 11 February 1673 Case No. No 70.
Receiving of bonds by a minor after majority and getting payment, is no homologation of a decree of exoneration at the tutor's instance, if the decree be reducible, but the tutor will be obliged to account de novo.
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In a reduction of a decreet of exoneration obtained at the instance of Margaret Caldwall and William Chalmers her tutor, as representing her father, who was tutor to the said Adam, and died during the time of the tutory, upon this libelled reason, that the said Adam was not compearing either by his tutor or his procurator employed by them, but the said William Chalmers being tutor for the said Margaret, who, as representing her father, was liable to count and reckoning, did only give in the charge and the discharge whereupon the decreet of exoneration was founded, in which charge there being many material articles omitted, the pursuer being then minor, ought now to be reponed against the same, and the defenders ordained to count and reckon de novo. It was alleged for the defender, That reduction could not be sustained, because the pursuers had homologated the decreet since his majority, in so far as the defenders being decerned to deliver three bonds of borrowed money taken by the deceased tutor in name of the pursuer, which were found to be the only means belonging to him, he accordingly did receive the same from William Chalmers, and got payment of the sums therein contained. 2do, The reduction being chiefly against Margaret Caldwall, who was then an infant, and is yet under tutory, it were against law and reason to ordain her to count de novo for her father's intromissions, which is impossible for her to know; so that the reduction can only be sustained against Chalmers, (who had received a factory to uplift these sums of money), upon deeds of malversation alleged committed by him. It was replied to the first, That the receipt of the bonds was only from Chalmers, who had received a factory to uplift the sums of money, he having retained the same after the decreet, and the saids bonds being uncontrovertedly the pursuer's, his receiving payment after his majority, of the sums which were only a part of the estate, could not prejudge him to crave an account of the rest, which was never mentioned in that decreet in the charge or discharge. It was replied to the second, That the said Margaret, the defender, representing her father, who was tutor, and liable in law to make a full account, the malversation of her tutor cannot hinder her from counting de novo, as her father would have been obliged if he had been alive.— The Lords did sustain the reduction, notwithstanding of these answers to the reasons, and ordained both the defenders to count de novo; but reserved to the said Margaret action of relief against Chalmers her tutor, in case it should be found that he had malversed, or had not made such a full account of her father's intromission as in law he was obliged to, or for which he ought to have done diligence.
Fol. Dic. v. 1. p. 381. Gosford, MS. No 571. p. 312.
