Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. VII.

Nobile officium.

Sir William Baird of Newbyth, John Baird his Eldest Son, John Wauchop of Edmonston, and Andrew Wauchop his Brothers, Supplicants

Date: 3 July 1711
Case No. No 149.

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The deceased William Wauchop of Niddery having named by his testament the petitioners who are Protestants, and five others of his Popish relations, to be tutors to Andrew Wauchop now of Niddery his son, and appointed three to be a quorum, James Wauchop brother to the defunct, who is Roman Catholick, being always one; the Lords authorised the petitioners to officiate and act as tutors by virtue of the foresaid nomination, and held the sine quo non, and other Popish nominees (who are incapable by law to officiate) pro non adjectis.

Fol. Dic. v. 1. p. 499. Forbes, p. 516. *** Fountainhall reports this case:

The lately deceased William Wauchope of Niddery having named 10 friends to be tutors and curators to his son, any three to be a quorum, his brother James Wauchop being always sine quo non, who being a Papist, and other four of them being of the same persuasion; Sir William Baird of Newbyth, Wauchope of Edmiston, and he rest of the other five who were Protestants, gave in a bill to the Lords representing that they were willing to accept the office, and that the other five were incapable by law to be tutors, being expressly debarred by the third act 1701, against the growth of popery, and offered to compear before the Lords, to qualify themselves de fideli and be admitted, that they might make up inventories of the pupil's estate, conform to the second act, Parliament 1672. There being no compearance made for the Popish tutors, nor any answer returned to the bill; it was reasoned by the Lords, whether the nomination of the rest could subsist, seeing the sine quo non failed; even as in the case of a mother nominated sine qua non, who, by her re-marriage, forfeits the office? It was answered, That the appointing Roman Catholics to be tutors, being contrary to law, it was conditio impossibilis de jure, and therefore to be held pro non scripta, and as not adjected; for id tantum possumus quod de jure possumus, et nemo potest cavere ne leges in suo testamento locum habeant. Therefore the Lords sustained the nomination in the persons of the Protestant tutors, and admitted them to the office,

Fountainhall, v. 2. p. 655.