Mr Hugh M'Alexander of Dalreoch, v. Mr Fergus M'Alexander, Minister.
Date: 27 July 1677 Case No. No. 189.
The nearest agnate, after behaving as pro-tutor, having procured a gift of the pupil's ward and marriage, and then having served himself tutor-in-law, it was found, that the gift being procured before he was tutor, he ought to have himself the benefit of it.
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In an action pursued at Dalreoch's instance and his curators against Mr. Fergus M'Alexander, who was served as tutor of law, for count and reckoning, likewise for exhibition and delivery of his whole writs, and particularly of a gift of ward and marriage of John M'Alexander, the pursuer's elder brother, granted to the Minister by the Lords of Exchequer; it was alleged that he was not obliged to deliver that gift, because it was granted to himself proprio, nomine, and gave him right to the rents of the lands, aye and while the entry of a lawful heir, which was not yet expired. It was replied, that albeit he was not tutor the time of the gift, yet he behaving himself as tutor, and being the nearest agnate, in so far as he caused inventory the whole writs in the charter-chest, and caused open all other chests and cabinets, count and inventory the money, and so was pro-tutor in law; his obtaining of the said gift ought to be construed as gotten to the behoof of the pupil after he was served heir, and should accresce to him, and cannot be extended to this pursuer's ward, which did not fall after his eldest brother's decease. The Lords did find, that the gift being procured before he was tutor, and granted to himself, that he ought to have the benefit thereof, and that pro tutor not being a term in our law to be made out by deeds of behaviour, the benefit thereof could not be taken from him; and in respect thereof did sustain the defence, notwithstanding of the reply.
