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Whitelaw reported Elizabeth Macmurdoch against Robert Findlay, tenant in Coats, her late tutor. He and Mr George Campbell having been conjunct tutors, and Mr George being debtor to his pupil in 2000 merks by bond, Robert is now pursued to make up that sum for not doing diligence against the said Mr George before he broke. Alleged, Though the law be strict against tutors, yet it cannot tie them to impossibilities, or to more diligence than they use in their own affairs; and here, all looked on Mr George Campbell as a most opulent solvent person, till he broke by surprise, like a thunder-bolt, in 1689, and the Signet and Judicatories not being then open till November, it must excuse him, this not being so much as levis culpa, especially considering he, Mr George, was a co-tutor and trusted by the defunct with the papers, which upon the matter was a dividing of the administration of the tutory betwixt them. See Stair's Instit. Obligations of Tutors, Num. 23. where curators chosen with this quality, to be free of omissions, were approven; and, Smith contra Creditors of Invergelly, voce Expenses, an article of victual was allowed, being sold to one then repute solvent, though bankrupt at the time of the compting. Answered, Where a co-tutor is debtor to his pupil (which was expressly forbid by the Roman law,) there is the greater obligation on the other tutors to look that he pay the sum, and though they are not debtors nor cautioners for what he owes the pupil, yet they are liable for his mal-administration, and for diligence against him as well as other debtors; and here Mr George's condition was very suspicious before the Revolution or shutting up of the Signet; and Findlay the co-tutor was certainly in mora in not registrating the bond, and charging and denouncing thereon, which diligence would have exonered him. There being several circumstances either aggravating or extenuating urged on either side, the Lords resolved to hear it in their own presence, how far Findlay was bound in solidum for Mr George his co-tutor's obligement to pay.
The cause being heard in presence, 15th November 1699, the Lords found the co-tutor not liable in this case for the other tutor's debt, but only for his administration; and found no negligence on his part, and therefore assoilzied Findlay.
Fol. Dic. v. 1. p. 241. Fountainhall, v. 2. p. 58.*** Dalrymple reports the same case:
M'Murdoch and her curator having pursued Findlay, her tutor, to compt and reckon, he craves allowance of 2000 merks, due by Mr George Campbell, who was a co-tutor; because he broke suddenly, being a man of unquestioned credit, as to his fortune, the very time that he broke, and all diligence being done thereafter.
It was answered; Co-tutors and curators have always been reckoned as mutual cautioners for each other; and Mr George being bound to have paid in his money, especially knowing his own circumstances, Findlay the co-tutor is liable for him. 2do, The co-tutor neglected diligence, which recovered other men's money; and condescends upon a protested bill, which is the greatest evidence of the decay of a merchant's credit, and likewise on a horning, and on an inhition.
It was replied; That tutors are all liable in solidum for diligence in their administration; and consequently are mutual cautioners for the administration of their co-tutors; but they are not cautioners for each others debts; and therefore, if money be lodged in the hands of a co-tutor, of a sufficient visible fortune and credit, whatever happen to such a debtor, the remanent tutors are no more liable for him, than for any other debtor, especially where the money was lent by the pupil's father, who did nominate Mr George Campbell a tutor, sine quo non; and the defender was diligent to receive yearly annualrent, and could not be obliged to uplift the principal. 2do, As to the diligence, they were all quickly paid without noise, and the defender neither knew of them, nor was obliged to know, there being no course of diligence, and the debtor's credit continuing always good, in so much as most provident and exact men of the kingdom lent him money before he broke.
‘The Lords found, That co-tutors are not mutually liable for one another's debts, but only for administration of their office; and sustained the defence, that the co-tutor was held solvent, till he broke of a sudden, and that other men, known to be cautious and provident, lent him money shortly before he broke.’
