Who must be Cited in a process against Minors, and who Certiorated in Extrajudicial Steps against them.
William Lockhart v. Mr John Elies, Elder
Date: 26 November 1680 Case No. No 13.
A wakening against tutors being only executed against one, and not against the other co-tutors, who it was alleged must be called to the wakening, as well as the principal summons, the Lords allowed them to be called incidenter cum processu, provided they were cited any-time before advising the cause.
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‘The Lords upon Forret's report, found Mr John Elies not being originaliter conveened in that process of William's against Lockhart of Lee, but only called by an incident to concur and defend, but not upon a conclusion of payment, that he must be cited upon a signet summons, ere he can be obliged to answer why he should not be liable in payment as one of the tutors or protutors;’ though they would have him answering upon a bill as a member of the Session.
1681. February 10—‘The Lords, upon Forret's report, find this process against Elieston coming in incidenter against Elieston upon that other process against the Laird of Lee, and being relative thereto, that Mr John Ellies ought to answer presently thereto, without enrolling.’
1682. February 3.—William Lockhart against Mr John Ellies of Ellieston (26th November 1680) was advised, and Ellieston was found, upon the qualifications adduced, to have been his tutor, and therefore they decerned him to count and reckon; which was thought very hard.
1683. March 16.—Mr John Ellies's action of relief against Lockhart of Lee, Menzies of Culterallers, and the other co-tutors of William Lockhart, (vide anent this No 41. p. 504.) being reported by Kenmay; The Lords found the said co-tutors liable to relieve him pro rata, notwithstanding of their allegeance upon his dole, that the said testament was all his contrivance and malversation, and so he should have no recourse against them, seeing ex suo maleficio non debet habere actionem mandati; which the Lords repelled. Nota, This interlocutor was afterwards stopped.
1686. January 13.—The case of William Lockhart contra Mr John Elies was reported by Saline. It was objected against his wakening, that it was only executed against Elieston, and not against the other co-tutors, who behoved to be called to the wakening as well as to the principal summons. ‘The Lords allowed him to cite them incidenter cum processu, providing they were cited any time before advising of the cause.’
January 28. —The Lords having considered Mr John Elies's bill, with William Lockhart's answer, they allowed the petitioner a diligence for citing of other persons, havers of writs or witnesses, in place of those formerly cited who had deceased before they were examined, the number of them not exceeding those who were deceased, providing the same do not stop the advising of the cause, in case they be not examined before it come in to be advised; and allowed the like diligence to the pursuer, if he be in the same case; and allowed both parties farther diligence against persons formerly cited, if they desire the same, providing it do not stop the advising of the cause as said is. See This case No 41. p. 504.; and voce Tutor and Pupil.
Fol. Dic. v. 1. p. 132. Fountainhall, v. 1. p. 118, 129, 171, 226, 391, & 398.
