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The Lady Borthwick, debtor to Thomas Littlejohn, tailor, in £.300 of an account, having granted bond for it, for behoof of the creditor's children, to his brother Andrew, Littlejohn, who was tutor testamentary to some of them, and acted as pro-tutor for the rest; and she being pursued by one Williamson, the husband of the eldest daughter, for her proportion, in respect that Andrew was not curator to her;
It was alleged for the Lady, that Andrew being tutor to some of the children, and the defender ignorant of their ages, and the sum not divided among them, she was in bona fide to grant bond to Andrew, and had paid him £.200 of the money.
Answered for the pursuer: Debtors pay to pro-curators upon their peril. Again, the pursuer's wife not having subscribed Andrew's discharge, the same was not valid, suppose he had been her curator; multo minus when he was no curator;
The Lords were of different opinions about the point, if the defender's bona fides in these circumstances, did liberate her as to what she had paid; but there being £.100 still resting, which exceeded the pursuer's share, they decerned the defender to make payment of the pursuer's proportion, which took off the debate.
