Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by TUTORS and CURATORS.
Irvine and Oliphant v. Spence
Date: 16 January 1696 Case No. No 37.
Found as above. This laxamentum temporis allowed, in order to find proper hands for lending out the money.
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Crocerig reported Irvine of Inchray, and David Oliphant his tutor, against Thomas Spence, as cautioner for Cleghorn, the former tutor.——The Lords found the tutor was bound to stock the annualrents due to his pupil preceding his acceptance into a principal sum, within a year after his entry to the office, and from that time was to be liable in annualrent; and, as to mails and duties of lands and other rents, found he was in like manner countable within a year after they were payable and due; and that laxmentum temporis was allowed tutors to find hands, and lend out their pupil's means, cum nummi pupillares non debeant esse otiosi; but for annualrents of sums falling due pendente tutela, they were not to be accumulate into a principal sum to bear annualrent, but once during the tutory or curatory.; and so they were only countable for the usuræ usurarum of such post finitam tutelam et curatelam.
Then they insisted against him for omissions, in not doing diligence against Pitlour, and some other debtors of the minor's.—Answered, He was stopped by the surcease of justice, which happened at the Revolution in November 1688; and he died shortly after. 2do, Many of them were insolvent, and it had been the pupil's loss to have cast out his money in pursuits against them.——The Lords thought it too strict to require diligence from the tutor in this circumstantiate case; and allowed him to prove they were then habit and repute insolvent. The next article was, for some expences claimed by the tutor's cautioner.—Alleged, He made no inventory conform to the act of Parliament 1672, and so has incurred the certification of losing. all his expences.—Answered, 1mo, I am but the tutor's cautioner, and that act is penal, and as it would not militate against his heir, much less against me, nam pæna suos tantum debet tenere auctores, and it is but a quasi delictum. 2do, The Lords, in Carleton and Colston's case, and between Crookshank's and Gray*, found that it only cut off their personal expences; and by act of sederunt, 21st February 1693, it is explained not to extend to what is bestowed on the minor's aliment or reparation of his houses, but only to law expences.——The Lords, to shun interfering with former decisions, allowed the reporter first to try how they proved these articles of debursements; for if they succumbed in the probation, there would be no necessity of discussing the relevancy, (See Diligence.)
