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Scottish Court of Session Decisions >>
Scotstarvet, &c. v The Earl of Buccleugh. [1642] Mor 16266 (00 February 1642)
URL: http://www.bailii.org/scot/cases/ScotCS/1642/Mor3716266-134.html Cite as:
[1642] Mor 16266
The Lords refused to grant to a tutor a modification for his pains, over and above expenses.
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Harden, Clerkingtone, and Scotstarvet, curators to the Earl, pursue him to see and hear them liberated of the office of curatory, because the Earl promised to take and follow their advice in his business, but does not seek their advice, and follows it not, but is guided by other curators and persons not so acquainted with his estate. Answered, No ground in law for liberating them of their office. Replied, The minor has, without their consent, done sundry deeds, with consent of other curators, to his great lesion; and given in a condescendence on the deeds. Answered, The act of curatory chooses the hail or any two of the curators by whose consent he may do any thing, and the not consenters are not bound for deeds to be done without their consent. The Lords find accordingly. The pursuers urge another alternative of the conclusion of their summons, viz. that, conform to the provision in the act of curatory, they be not liable but for such deeds as they consent to, and that otherwise they may be free of omission and commission. The Lords interpone their authority to the quality of the act, and grant the conclusion. The pursuers urged the first alternative to be liberated of the office of curatory. The defender, in respect of the curators' desire to be liberated, sought by the summons, and their unwillingness to exercise the charge, is content they be liberated; and craves liberty to name others in their place. The Lords interpone their authority to the agreement, and liberate them, and give the minor liberty to choose others; who, on the morrow, chose the Marquis of Argyle, the Earl of Lothian, and the Sheriff of Tiviotdale. The pursuers urged another conclusion of their summons, to have their tutory counts taken off their hands. Answered, By the act of curatory, two of the curators were chosen, viz. Sir John Murray and Sir James Scott, to hear the tutory accounts, allow and disallow, and grant discharges, which they have done, and produce the discharge. The Lords interpone their authority to the discharge. Scotstarvet urged, He might, by and attour the articles allowed in the tutory accounts and discharge, have modification of the Lords for his pains. Answered, A tutory is an office of honour and trust, and there can be no modification due to the tutor for his pains. Clerkingtoune urges taking the charter-chest and evidents of his lands. Answered, Content to take them on inventory and oath that he has nor had not more.
