Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
William Walwood v. Robert Walwood
Date: 17 January 1699
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William Walwood against Robert Walwood, his uncle and tutor, who being charged with sundry debts he had suffered to perish, he founded on a discharge he had got from his pupil some time after his majority, bearing, That he was convinced of his integrity, and therefore exonered him of all omissions, he making faithful account of all his intromissions, and delivering up to him all the inventories and eount-books. William repeated a reduction he had raised of that discharge, That it was taken from him by surprise three or four days after he was major, et ante redditas rationes, and when he knew nothing of his affairs; and bore a quality of fair counting and delivering up the books: none of which he had done.
Answered,—Omissions were odious, and might be discharged the next day after the expiring of his minority; and the provision in the discharge of counting was neither conceived irritanter nor conditionally, and so could not annul the discharge; and the truth is, he was ever willing to count.
The Lords sustained the discharge to exoner from omissions, and assoilyied from the reduction.
Then he craved allowance of £1500 of expenses wared out in selling the wines and other goods his brother left behind him. Answered,—By the Act of Parliament 1672, a tutor neglecting to make inventory can claim no expenses. Replied,—His brother having left an inventory, he thought it needless.
2do. His discharge cutting off omissions, must also reach this of his neglecting to make an inventory. Replied, 1mo. His brother's inventory was not full, neither what the law requires in this case. 2do. The discharge only means omissions in seeking in debts and other deeds of administration, but can never be extended to the necessary requisite, previous to his entry of making inventories.
The Lords, by a narrow plurality, found it comprehended the omission in making of legal inventories, as well as other omissions. Some thought the discharge ought not to cover him, where the omissions were gross and considerable; for as lata culpa œquiparatur dolo, so none are presumed, under general words, to have discharged dole.
