The dubiety of a pupil's right, found to be no ground of defence upon which a tutor could seek to be exonered for not having done diligence.
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Elphinston of Airth against Sir Robert Milne, late of Barnton, his tutor, for omitting to do diligence against the estate of Grange, for the sum of 22,000 merks, and so craved he might be liable for that omission. Alleged, The debt being an heritable bond granted by the Lady Airth, and Hamilton of Grange, her husband, bearing infeftment forth of the lands of Airth for security of that sum, it is not only a dubious question, but appears clearly to have been Airth's own proper debt, and so the tutor was neither in dolo nor culpa, in not pursuing Grange for the same; and it would be an insuperable burden if tutors were obliged to cast out their pupil's money in pursuing debts not belonging to them. Answered, If dubiousness of rights were a sufficient excuse to liberate tutors from diligence, it would open a door to let them all escape, and he ought to have taken advice of lawyers, and raised a process and tried the validity thereof. But, 2do, It appears to have been Grange's debt, because towards the payment of it he set afterwards a tack of his own coal. The Lords thought the proper method here was first to determine whose debt this originally was, whether Airth's or Grange's; but, though Grange was cited to compear incidenter in this process, yet he and his creditors being absent, the Lords forbore to decide that point, and went to the other, whether in this circumstantiate case the tutor could be liable for omitting to do diligence against Grange's estate for this debt; and the plurality found him not liable, but all agreed that the dubiety of a pupil's right was no ground nor defence, whereon a tutor or curator could seek to be exonered from not having done diligence for trying to recover the same.
Fol. Dic. v. 1. p. 241. Fountainhall, v. 2. p. 144.
