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John Yule being eighty years of age and a batchelor, lent out two sums upon bonds, taking the securities to himself; and failing himself, to his brother Joseph Yule, his heirs, executors, or assignees.
Thereafter John married, and had a daughter Bethia.
John named her his universal legatrix in all sums, bonds, &c. in general, but without specifying the above two bonds. In the same deed he named tutors to her, of whom his brother Joseph was one.
Upon John's death, the tutors claimed the sums in the bonds for behoof of their pupil, on this ground, that the securities taken by John, with a substitution to Joseph, at a time when John had no children and no likelihood of any, were evacuated by the supervening accident of his having a child; on the other hand, Joseph claimed the two bonds in terms of the substitution, and alleged, that the money which John had lent out was put into his hands by him, Joseph, and was the proper money of Joseph; and that the securities taken were really intended to take effect as expressed, although John should have children.
The circumstances which made this assertion probable or improbable, became, in a process at the instance of the tutors against Joseph, the subject of a proof; and in leading it, a question arose, Whether Bethia could have the benefit of the evidence of her own tutors?
Objected by Joseph: One of the strongest exceptions against a witness is, his having given partial counsel in the cause, which must apply against the tutors here, seeing they are themselves pursuers of the process.
Agents, trustees, and factors, are excluded from being witnesses, much more ought tutors, who are, in a manner, eædem personæ cum pupillo.
Accordingly the Lords decided in the case Waddels against Waterstone, 16th July, 1707, No. 337. p. 12484.; and Forbes of Gask against Lady Pitsligo, 1st July, 1628, No. 327. p. 12479. Vide others observed in the Dictionary, supra, h. t.
Answered: Though some Doctors in the civil law do exclude tutors in general, yet the texts of the civil law itself do not.
Agreeable to this, Lord Stair, Tit. Probation, B. 4. T. 43. § 9. in enumerating at large, and with accuracy, those who, in our law, are excluded from being witnesses, and particularly, advocates, agents, factors, and trustees, yet makes no mention fo tutors in the causes of their pupils.
These rules admit of two exceptions. A tutor cannot be a witness in a fact done by himself; a tutor cannot be a witness in a cause where he may have an interest, from being liable afterwards to the actio tutelæ. Concerning which the words of Voet. ad Tit. Pand. De Test. § 7. were cited for the one: Juris quoque ratio refragari, haud videtur quominus de rei gestæ veritate juratotestentur, si modo de iis, quæ per alios gesta, non quæ ipsi tanquam tutores gesserant: The words of the same Voet. in the same sect. were cited for the other; in which he adds, That the tutors' oaths shall not be taken in cases quorum intuitu actione tutelæ conveniri possunt, ne alias in re sua, seu ea ex qua damnum ipsis imminet, videantur testes esse.
In the case Waddels against Waterstone, the evidence of a tutor was excluded, because it came under the first exception; in the case Forbes of Gask against Lady Pitsligo, it was excluded, because it came under the second.
But, where these exceptions take not place, it stands to reason, that pupils should not be excluded from the evidence of those who must be better acquainted with all transactions relating to their affairs, than any others who have themselves no interest of their own at stake, and who are given by the law to minors for their benefit, not to exclude them from any benefit they might otherwise have.
“The Lords allowed the tutors to be examined.”
Act. Dalrymple.Alt. George Brown.
Fac. Coll. No. 144. p. 215.
