Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Mr William Dundas
v.
Major Biggar of Wolmet

Date: 16 June 1674

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In a count and reckoning at Mr William Dundas his instance, as having married one of the daughters of Wolmet, against Major Biggar, who was curator to her and the rest of the sisters; there being an article, craving that the Major should be liable for the back-tack duties which the daughters were decerned to allow to the wadsetter, upon these reasons:—That the daughters having right to the coal of Wolmet, by a sub-tack flowing from the Laird of Wolmet, their father, who had granted a wadset of the lands, upon a back-tack, forpayment of the annualrent of the sums lent upon the wadset; as in law their father who had the back-tack was liable, so the children who had a sub-tack were likewise liable to the wadsetter: and, therefore, the curator was liable for negligence, not having served inhibition against the heir of Wolmet, who was bound to relieve them of the back-tack duty; this estate, medio tempore, being comprised by lawful creditors. 2do. The children were pursued for payment of the back-tack duties, and an arrestment executed, upon the dependence, against Andrew Ker of Moristoun, who was their tutor, and had intromitted with the whole coal rent belonging to them, which was an actual distress. 3tio. Upon that ground, that the Major, being curator, did purchase the lands of Wolmet from the heir, who was bound to relieve them, and thereby prejudged them of all hopes of relief.—

It was answered to the first, That, by the sub-tack, the children being only obliged to pay 1200 merks of the back-tack duty, for which they were never distressed, but, on the contrary, the tutor of the heir, and children, having the intromission with all the estate, and having more of the heir's estate than would pay the superplus of the 1200 merks,—the law could never presume that the Major was negligent, until an actual distress.

It was answered to the second, That the arrestment and dependance, at the wadsetter's instance, was only for their 1200 merks, payable by them. And to the third,

It was answered, That any purchase made by the Major, during curatory, was so far from being a prejudice, that it was an advantage to the children; seeing the heir was altogether ruined in his fortune, and imprisoned for debt, and had agreed to dispone the reversion of his estate for a less price than the Major gave.

The Lords did refuse to sustain the article upon the first and last reasons; but, as to the second, before answer, they ordained the pursuer to produce the arrestments and summonses,—which was the distress alleged upon,—that they might see them, if they were used for recovery of the whole back-tack duty, or the 1200 merks only payable by them; without which the curator could not be condemned for negligence, for not serving an inhibition against the heir.

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