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Scottish Court of Session Decisions >>
David Boyd v Isobel Lauder and John Talzifer. [1665] Mor 16275 (30 November 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor3716275-150.html
A pupil does not incur a passive title, by the intro mission of his tutor.
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David Boyd pursues John Talzifer, as representing his father, on all the passive titles, and Isobel Lauder, his mother and tutrix, for her interest, and condescends upon his behaving as heir, by uplifting of the mails and duties of his father's lands, by his said tutrix. It was answered, That he being a pupil, his tutrix's intromission could not infer that passive title against him, as hath been, frequently sustained these many years. It was answered, That was but since the Usurpation; but before, the tutor's intromission did always infer this title, and the pupil could only pursue his tutor for his damage.
The Lords found the pupil not liable on this passive title, by his tutor's intromission.
The pursuer then insisted against the tutrix for paying so far as she had intromited. It was answered, That she was but called for her interest, to authorise her pupil, but not to pay, neither could she be liable to pay, unless a decree had been first established against the pupil, and then it had been arrested in her hands, and pursued to be made forthcoming.
And yet the Lords found the tutrix, hoc ordine, liable.
