Scottish Court of Session Decisions

Subject_1 ANNUALRENT.
Subject_2 ANNUALRENT due by TUTORS and CURATORS.

Guthry
v.
Guthry

Date: 24 February 1627
Case No. No 46.

A tutor uplifted his pupil's money, bearing interest, and gave his own bond. His heir liable, not from intenting action, as in the above case, but instanter.

In what manner curators liable for anaualrent.

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Francis Guthry pursued Margaret Guthry, as heir to her father, who was one of the two curators to the pursuer, for payment of the sum of 2800 merks, which pertained to the pursuer, and was lying upon land, and was redeemed by the debtor; and after the redemption, the sum was taken up, and received by the two curators, who, and each one of them, bound and obliged them conjunctly and severally, at the time of the uplifting thereof, to make the same forthcoming to the pursuer, their minor; and therefore the pursuer called this defender, as heir to her father, who was one of the saids two curators, to repay to him the said principal sum, with the yearly profits sincesyne. This pursuit was sustained against the defender as heir, representing only her father, one of the saids curators, in solidum for the whole sum; and it was found, That it ought not to divide betwixt the two curators, in respect that by the tenor of the bond, they had both obliged themselves, conjunctly and severally, as said is; and also this action was sustained against her, for the whole profit, since the uplifting thereof, albeit she alleged, That she was minor, also that she could not be subject to pay annualrent, because by the decease of her father, who was curator, and so by the ceasing and expiring of his office, there was no more obligation of the law, whereby the defender could be holden to pay profit; for, by his decease, the pursuer had proper action to pursue hoc ipso momento after his decease, for payment of the principal sum, but had no action for profits, especially against her who was a minor, for post mortem curatoris cursus usurarum sistitur: Which allegeance was repelled, and the minor, heir to the curator, found subject to pay the profits, sicklike as her father would have been, if he had been living, and if he had retained the sum, after the years of his office was expired; for his death, or the retaining of the sum after the pursuer's majority, could not make the sum to rest unprofitable to the pursuer, the same being once specially lying upon land, and after redemption uplifted by him, and the pursuer's majority, and not seeking that principal sum, was found no cause to make his action, for the profits to prescribe, or become extinct. (See Solidum et pro rata.)

Act. ——. Alt. Heriot. Clerk, Hay.

1627. March 1. In the same action The Lords found, That curators were not obliged for the profit of the minor's money, which they had received after a term, by the space of a month, or two, or three, the money being consigned by the debtor at the term, and by dependence of process, the same not being given up while the space of two or three months thereafter; so that the Lords found, That the curator could not be countable for that term's annual, subsequent to the consignation, not being uplifted, as said is; except it could be verified that the curator employed the money, and received profit therefor, the same term.

Partibus ut supra.

Fol. Dic. v. 1. p. 40. Durie, p. 281. 284. *** The same case is thus reported by Spottiswood:

Francis Guthry conveened Margaret Guthry, heir to umquhile Hercules Guthry, unto whom, (being then curator to the said Francis,) there was delivered 2800 merks, for redemption of lands wadset, belonging to the said Francis, to make the said sum, with all the bygone annualrents, forthcoming to him.—Excepted by her: No annualrent, since the decease of her father, because she is minor, and so not obliged thereto.——The Lords found, That she was no less obliged in payment of annualrent than her father, if he had been alive.

Spottiswood, (Tutors and Curators.) p. 344.