Uplifting the profits of a going coal found a sufficient qualification of acceptance where the person had been named tutor, but not to render him pro-tutor, if not named tutor.
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Beatson of Pugilt pursues Beatson of Kilrie for count and payment, as tutor, or pro-tutor to him, because he being nominate as one of more tutors, did intromit with the charter-chest, and with the profit of a coal-heugh, of considerable value, which was all the pupil had un-liferented, and did transact with the defunct's creditors, and apprised the pupil's estate, and by several missives, declared that he acted all for the good of the brother's children. The defender alleged absolvitor, because it is not, nor cannot be instructed that he knew of a nomination, nor did he make use of any of the defunct's writs, but did only concur with the other friends to preserve them; and for his intromission with the coal, it was at his brother's desire, for satisfaction of a sum affecting the same; and for his letters, he is willing to make them good, by applying all his transactions to the pupil.
The Lords found the defender liable as tutor, if it be proved that he knew of the nomination, and continued to intromit with the coals long after it was free of all burden, as being an act of administration; but if it be not proved that he knew of the tutory, found him liable by intromission with the coals, not as pro-tutor, but as negotiorum gestor; neither by his transactions or letters, but ordained him in respect thereof to apply the benefit to the pupil, but found him not liable upon keeping the defunct's writs, he not making use thereof.
