Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Margaret Bogle v. William Napier
Date: 14 February 1693
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Margaret Bogle against William Napier, cautioner for James Armour, her children's tutor. The Lords found the cautioner liable for Armour, the tutor, to make up the relict's third, seeing she had renounced the executory to him, and his intromission was per universitatem, the relict's share not being yet distinguished nor separate from the other two parts; for they thought, if it had been laid aside and separate, then it would have been no part of the tutor's administration to have meddled with it. This was only carried by the President's vote; and they who were of the contrary opinion, argued, that a cautioner for a tutor only engaged rem pupilli salvam fore; and her third noways belonging to them, though the tutor was liable for it in respect of his intromission therewith, yet it being not qua tutor, but as assignee to the executory, it was extrinsic to his office, and so could not bind his cautioner.
