Scottish Court of Session Decisions

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

Janet Inglis and Andrew Charters, her Husband,
v.
John M'Morran

Date: 25 November 1674

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The said Janet, and her husband, having intented action against Bailie MacMorran, as tutor dative to the said Janet's mother, for count and reckoning of his intromissions; and for modification of an aliment; and finding caution to make the rest forthcoming to the nearest of kin.

It was answered, That the pursuer had no interest, she having a brother who did not concur in this pursuit; likeas the defender, when he procured his gift of tutory dative, having found sufficient caution, he could never be liable but to the furious person, if she shall recover; or to her heirs or executors, who shall have the best title, only.

It being farther alleged, that this pursuer, by her contract of marriage, subscribed by her husband as taking burden for her, had discharged all benefit he could crave any manner of way by the decease of her said mother; and that in favours of her brother, who did not pursue.

The Lords, upon that last allegeance, did assoilyie the defender. But if the brother had pursued, or concurred in this action, it was not determined if a tutor dative to a furious person might be pursued for count and reckoning, and the modification of an aliment, which might have been the subject of debate; but it is thought they would have been liable in that same condition, as tutors to minors, but no otherways.

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