Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Earl of Sutherland v. The Viscount of Arbuthnot and The Laird of Knox
Date: 14 June 1698
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Halcraig reported the Earl of Sutherland against the Viscount of Arbuthnot, and the Laird of Knox, his tutor-of-law. It was a pursuit for repayment of some accounts of expenses debursed on the three following articles: 1mo. In the Earl's debating against and opposing the said Knox's being served tutor, in respect of his unfitness and insufficiency; 2do. For debursements given out in a council-process for getting an aliment to the younger children off the Viscount, as heir; and the third was, For expenses given out in pursuing Knox, the tutor, to implement and fulfil an agreement passed betwixt him and the Earl to count yearly, &c.
Answered,—None of thir articles were in rem pupilli versum, and so can never make him liable; for the expense wared out in stopping Knox to be tutor was unnecessary, for you afterwards consented, on a transaction, that he should be tutor. As to the second, The Viscount behoved to defend against his brother and sisters' aliments; because 5000 merks by year was craved, and the Lords only modified 2500 merks; so he behoved to have a sentence to warrant the quota. To the third, The minor was not concerned to pay the expense of a process between his tutor and grandfather anent the contravention of the articles of agreement; and, if they insisted against the tutor as liable nomine proprio, he opponed the libel, where he was only convened as tutor, and so could not answer hoc ordine.
Replied to the first, Though I ceded his being tutor, yet it was upon conditions advantageous to the pupil: To the second, Though I demanded 5000 merks, yet I then declared I would sequestrate the half of it to be a stock to augment the younger children's portions: To the third, The tutor is convened super propria culpa, for contravening the articles of agreement; and so, it being for a fact of his own, he must be liable; especially seeing, by a writ under his hand, he had renounced all dilators in this cause.
The Lords found the pupil not liable for the expenses contained in the three articles, nor yet the tutor for the first two; but as to the third, being founded on the contravention of his own agreement, they ordained him to answer summarily hoc loco, without putting the Earl to a new process; and allowed him to be heard on his defences before the Ordinary, reporter of the cause.
