Margaret Scrymgeour and Others, v. Alexander Wedderburn of Easter Purie
Date: 16 December 1673 Case No. No. 179.
Duty of a tutor in suing for debts.
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In the action of count and reckoning at the said Margaret's instance against Easter Purie, her tutor, they having insisted upon an article craving the tutor to be decerned in the sum of £.1400, or thereby contained in an account and subscribed by the deceased Earl of Dundee, bearing that in case he should be found liable, that he should pay the same to Major Scrymgeour the pursuer's father, for which the tutor had done no diligence; it was alleged that he could not pursue upon that subscribed account, because the particulars thereof were of several sums of money alleged delivered to the Earl's father at York, or given to physicians and surgeons, and for expenses of bringing his corpse here out of York, where he died, for which he had no receipts, and so could not intruct the debt, neither could the same be referred to the Earl's son's oath, who was in Scotland all this time, and knew nothing thereof; and Major Scrymgeour himself, albeit he did survive the death of the Viscount of Dundee, by the space of six years, did never pursue the subscribed ticket. It was replied, that the subscription of that account did bear an acknowledgement of the verity thereof, and these words, “in case he should be found liable,” now only adjected because he was heir to his father; but there were heir and executor confirmed, betwixt whom there might be a debate who should be liable, and albeit there were no receipts for verifying the debt, yet the tutor might have referred the same to the Earl's oath. The Lords did find, that the tutor was not liable to pursue on this subscribed account, unless they could instruct that the tutor had sufficient ground of probation for instructing the debt.
