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Scottish Court of Session Decisions >>
Guthrie and his Tutors v Edgarton. [1701] Mor 16319 (24 June 1701)
URL: http://www.bailii.org/scot/cases/ScotCS/1701/Mor3716319-241.html Cite as:
[1701] Mor 16319
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Guthrie and his tutors pursued Edgarton for payment of a sum contained in his bond. Alleged, He was not obliged to pay, because, by the 2d act 1672, it is competent to the minor's debtors to allege, that inventories are not made; ergo, if they be not debite et legitime given up, the same objection will take place: Ita est these inventories are null, because the nearest of kin on the mother's side are not cited for upgiving thereof. Answered, 1 mo, They are not in the case of the said act of Parliament, which is only where inventories are not made: But here, not only are they given up, but this very debt pursued for is inserted therein; and though the nearest of kin on the mother's side are not cited, yet that was done by a pure mistake, because some of the tutors are the nearest of kin themselves on the mother's side. 2do, This objection is wholly jus tertii to the debtor, who will be fully secure, his debt being per expressum mentioned in the inventory. The Lords thought the inventory informal for want of the citation; and though some of the tutors were nearest of kin on the mother's side, yet they ought to have cited those who were next in degree to them ex parte matris: Yet the Lords found this debt being in the inventory, the debtor had no interest to propone this nullity, without prejudice to the tutors to cite the nearest of kin, as accords.
