Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Alexander and John Cuthberts v. Charles Ross
Date: 1 July 1697
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I reported Alexander and John Cuthberts against Mr Charles Ross, writer in Edinburgh, who had been agent in managing their law affairs for many years, and had their papers in his hands; and they craving the same to be delivered up, he contended for a jus retentionis et hypothecœ in the writs, till he were reimbursed not only of the expenses he had given out, but likewise of a yearly pension of £4 sterling per annum, settled upon him.
Answered,—They acknowledged his right of retention quoad his account of debursements, and which they were willing to pay, though extravagant; but he could not extend that privilege to his bond of pension, which was now nine or ten years owing, and amounted to no less than £40 sterling; seeing the practice of that hypothec was only introduced by consuetude, and depended merely on this reason,—that tney had no other way of proving their debts and claims, and so were allowed retention; but here his claim was constituted scripto by a bond of pension. 2do. Whatever might be pretended, by one receiving a bond of pension from a major, yet this was given by a tutor, where his pupil's means were all liferented, so that he was forced to seek an aliment; and was no legal act of administration, seeing tutors ought not to gift or lavish away their minor's estate. 3tio. An agent not being nomen juris, being discharged by the Act of Regulations 1672, it was donatio incapaci facta, 4to. By the 8th Act 1672, burghers cannot arrest men's persons, where they have innovated the security by taking a bond for the debt; ergo a pari; for the hypothec here ought to cease where his debt is constituted by writ; and though it may be alleged that the pupil is secure by recurring against his tutor, yet, both by the Roman law and our decisions, a minor has his election, either to pursue his tutors and curators or the party with whom they contract to his lesion; 2d July 1667, Lord Blantyre against Walkingshaw.
Replied,—All this is only competent in a reduction of his bond of pension, where he shall instruct it was for services and other onerous causes: and, in the Duke of Lennox's complaint against John Cunningham of Enterkin, for getting up his charter-chest, the Lords refused it till his pension was paid him.
The Lords found, in this case of a pension given by a tutor, the agent had no retention of the pupil's writs; but that he might pursue for his pension, via ordinaria, as accords.
