Information for Andrew Fletcher of Aberlady and his tutor against Sir Archibald Murray of Blackbarrony, and Sir Patrick Murray of Saltcoats and others.

The State of the Affair.

SIR Andrew Fletcher for a certain Sum of Money Bought the Estate of Aberlady, But because of a setled Liferent of the Lady Kennedy of Ardmil∣lan on that Estate, it was agreed upon by express paction betwixt the Buyer and the Seller, that during the Liferent there should remain in the Buyers hands the Sum of 42000 Merks that the yearly interest thereof amounting to 2500 Merks might compense the equivalent Sum that was to be payed yearly to the said Liferentrix by her Liferent Right: The Buyer Dying thereafter, left Arch∣bald Fletcher his Son a Minor, whose Curators the Laird of Blackbarrony, and others Transacted with the Liferentrix (going in the fiftieth and sixth year of her Age, and at that time Sick of a Cancer) that upon payment of 13000 Marks to her, she should quite her Liferent Right, in Favours of the Heretour being Minor, and so Renounce all Right of Servitude and Interest she had: In security of which Transaction the Curators engaged, and personally bound and obliged them∣selves; and likewise caused their Pupil running in the Seventeenth year of his Age, to promise by his Solemn Oath, to ratify the said Transaction, and never come in the contrary. Things being thus carryed on, the Liferentrix shortly after Dyed of a Cancer, and the Minor likewise Deceased, to whom succeeded Andrew Fletcher his Brothers Son a Minor too. Him the defuncts Curators pursued for Restitution of 13000 Merks contained in the Transaction, which they alleged was payed out of their own Money: The cause being debate before the Lords

The Minor succumbred, the Lords refus∣ing to Repone him which he pleaded for, on the Account of the Defunct, his Uncle against a Transaction made in name of the Defunct a Minor by the Defuncts Curators with the Liferentrix, and con∣firmed by the Deceast Minor himself by an Oath: From this Sentence an Appeal was made to the Parliament of Scotland in name of the said Andrew Fletcher: In this case two things were especially enquired into.

1. If the Curators could lawfully enter in such a Ttransaction or rather Redemp∣tion?

2. Supposing the Transaction to be Relevant in Law, Whither the Minor might not be Reponed to his former State contrare to it?

We the Professors of Law constitut∣ing the faculty of Law in the Colledge of Ʋtrecht under Subscribing, Consi∣dering the the state of the Affair, and the Questions proposed from it have so judg∣ed.

As to the first Question, We are per∣swaded that the Curators could not enter in such Transaction, and that ipso jure it is null.

For although it be true that Tutors and Curators are permitted to Transact, Yet they cannot engage therein, so as to Remit the clear and manifest Right of their Pupils l. 54 ss. fin. l. 56 ss. 4. ff de furtis. Or in a transaction where the Right of Minors is diminished l 46 ss. fin de Adm & per. tut.

But then only is a Curator permitted to Transact, when a thing that is obscure and litigious is brought into Judgemennt that the Decision of the controversy may be determined dy the mouth of the Judge. Where the event of a debate may seem doubtful or uncertain, it will be better to take something rather than come into the hazard of the whole Bach ad Trutl. Vol. Disp. 7. Th. 2. lit. E. Gail l 2. Obs 72.

A Tutor indeed is instead of a Master or Owner l 27. de Adm & per tut. And

it may suffice if he carry on his Pupils Affair as a good Proprietors l. 3. ff. eodem. Whereby it might seem to follow, that the Curators did Transact a Right in the case proposed, since even Masters of Families who are Frugal and Proprietars use of times to redeem the Burden of Liferent.

Yet it is to be observed that they are not really Proprietors but are only e∣steemed such in so far as they shall do things profitable for the Minor. Mon∣tan de tutel. Cap. 31. eff. 1. u 21.

Neither is all that a Proprietor or Owner may do in his own Affair permit∣ted to a Tutor in the Affair of his Pupil.

For a Proprietor is the free Orderer and Diposer of his own Estate L: 21. C. Mand. But that cannot be said of a Tu∣tor whose Administration is restricted and limited.

None is Lyable for Mismanagement in his own matter, But a Tutor is Lyable in the matter of his Pupil L: 1. ff: de tu∣tel & ration distrah. So that he ought to order the Affairs of his Pupil more warily and prudently than his own: As must a Husband the things that relate to his Wives Dowry l. 24. ss. 5 ff solut Matrini Faber Jurisp. Papin. tit. 12. print. 7. ill. 43. No man doubts but a Merchant may expose his Waires, or Money for Buying of Waires, to the doubtful Sea Waves and Tempests, and the hazardous excursions of Pirats on the hope of greater Gain; whereas it would not be safe for a Tutor by himself to do the same. Ex l. 58 pr. ff de Adm. & per. tut.

Others take upon them the peril of of Transporting Waires for a certain Sum of Money which they call Ensuring, But I hope none will say that a Tutor may the same, Thousands of the like like nature might be adduced: so that a Tutor cannot be blameless, if he should do in his Pupils Affairs, perhaps as he would do in his own proper Business.

An excellent decision whereof and most apposite to present Subject is to be

seen in Maev. decis. part 4. decis. 9. Where he tells us it was determined that a Tutor who had good hopes of getting a price afterward, and upon that head did not sell his Pupils Corn, as also he did his own, but finding the Damnage that followed thereupon which might have been forseen, the Tutor was made Lyable and the hope of uncertain Gain did only bewray his imprudence, the like doth too great hast and Praecipitance l. 7. ss. 1. ff. de Adm & per tut.

Lastly, It doth not cross our sentence that Curators can free their Pupils Lands from Servitudes, to which they were Lyable. For that only holdeth in real Servitudes but not in personal, In those because they are perpetually inherent in the very Lands contrare to personal Ser∣vitudes, which are extinguished by Death, and so in our case the Liferent might have been immediatly extinguish∣ed by the Death of the Liferentrix. Wherefore then did the Curators pay 13000 Merks for consolidation which they might foresee would come to pass without that lessening of the Stock, so now they are the cause of their Pupils Loss, even as if they had entted in Bar∣gain with another under the hopes of greater profite, which hope for all that might deceave them.

Is not this to expose the Pupils Goods to Fortuitous, Chances without nny necessity? Had it not been better to pre∣serve what the Pupil has then to put his Estate to the hazard of a doubtful event? And seeing the Curators by those 13000 Merks might have received more certain profits, why did they not receive them? How came they to loss that Stock? Therefore they are Lyable for the Pro∣fits not received which they might have more cettainly received l. 32. ss. ff. de Adm & per tut.

Therefore we conclud that when Cu∣rators go beyond the Limits of their power, And expose the Stock that is cer∣tain to the event of uncertain Gain, Transacting in the Estate of their Pupi

that is certain and Liquid, and that with∣out the Authority of the Majistrate; that that Transaction is ipso jure void and null.

As to the other Qustion, Whether the Minor may not be restored to his fomer state contrare to the foresaid Transaction

We Answer, that tho one should sup∣pose the former Transaction to be valid in Law (notwithstanding of the foresaid Reasons we have proponed in the con∣trary) yet the Minor should not be de∣nyed the help of Restitution.

For it is certain without any Contra∣diction that our Minor by the said Trans∣acion has suffered no small Damage of 13000 Merks; And it is incontravert∣ible in Law that wronged Minors should have Restitution tot. tit. ff. & Cod. de Re∣stit. Minor. altho the Authority of Tutors and Curators interveen l, 2, Cod, Si Tu∣tor vel Cur, Interv.

Which is so much the more to be ad∣mitted in our case, since it is known that this Damage was done to the Pupil not by any accidental chance, but by the fault of the Curators themselves.

For as he who Transacts about ali∣ment as a favourable matter, so a Tutor likewise Transacting for his Pupil as a person most favourable, ought to enquire into the cause and manner of the Trans∣action, as also into the person of the Transacter Arg, l, 8, ss, 8, ff de Transact. Gail l. 2. obs 72. m.

The Curators therefore were to blame that they did not enquire into the cause of the Transaction, whether it were necessary?

But this was not so as we have heard; yea upon the contrair nothing could have been imputed to the Tutors if they had left the Pupils Right in that conditi∣on in which they found it, especially since the Fathers Paction who keeped a great Sum in his own hand for the Life∣rent could no ways be hurtful to the Pu∣pil, but the exposing of 13000 Merks brought a most lamentable loss to the Pupil.

But the Deed of a Tutor who layeth out any thing of the Pupils Stock, with: out any urgent necessity or Honesty, should no wayes prejudge the Pupil: Mar: Decis: 199. part 7.

Moreover the Curators were to blame that they did not inquire into the person of the Liferentrix, with whom they were willing to Transact: For it might have easily been made known to them that a Woman of fifty and six years of Age, and very valetudinary and infirm, labouring under a most pe∣rilous Dilease, viz. a Cancer, and given over by the Physicians could not live long, so that it was very unadvised and inconsiderate to bestow so great a sum for a Liferent, standing in the person of so weak a Body as Hers.

But if those things were unknown to them, yet at least it is to be imputed to their Negligence, who if they had made a more diligent search and inquiry, they both might and ought to have known her condition with whom they were to Transact, Arg: l. 19: de Reg: Juris.

But lastly, this above all renders them guilty that (as we are informed by Writ∣ings) when they we••e forewarned of the hazaad of such a Transaction by two Lawyers; that notwithstanding they would Transact and not leave it undone, which might have made most safely for themselves and their Pupil. For even then the Tutor interposetth his Authority amiss, when it is doubtful whether the thing will be expedient for the Pupil or not? Addit: ad Mar. Decis: 72 part 3.

But this may seem to make against our Sentence very strongly, that the Minor did Swear a Solemn Oath that he should never come in opposition to, nor contraveen the foresaid Transaction, and therefore may seem to be excluded from all remedy of Restitution, pr l. 1. & decantatum Auth: Sacrament: puberum Cod: si adv: vend:

But it seemeth not so unto us,

For 1mo. According to the Opinion of the best of Interpreters the Oath of a Minor can no ways confirm these Acts. that are ipso jure null. Arg. l. 5. C: de lib.

unless one would make the condition of Minors worse than that of Majors.

2do. That Oath cannot prejudge the Minor on the account of the Curators, since it was given by their Authority: They were Authors in their own matter, which Authority is null, fin. inst de au∣tor tutor l: 1. l. 7. ff eodem. So much the more when they seem craftily to have done it in this case, for being warned of the hazard of the Transaction wherein they were engaged, they perswaded their Pupil to give his Oath that they might be the more secure. And by the same the Curators seem to accuse themselves in desiring that Contract to be confirmed by the Minors Oath.

3tio. To conclude the foresaid Au∣thentick is abrogated by the Custome of all Europ, as all testify who have written of manners and Customs, whereof ma∣ny are cited by Groenovius ad D. Auth. And even in Scotland it self as we are in∣formed by the pubick Records, this is re∣ceived: And that upon very good Reason. For as Momacius learnedly observes ad D. Auth. In the slipperiness of Youth, does not that first Age, as on smooth Ice easily slide, is easily turned, wagged and shaken hither and thither like a Reed in a Marish or River; whether ought the poor wretch to suffer for the punishment of his own innocence.

But if the Curators at last should com∣plain and say that they have laid out so great a Sum for their Pupil they may blame themselves for any Damage they have felt through their own fault and im∣prudence: Neither is a Pupil to be charged upon every event. But they ought to have considered if they were deceived, Whither they might not have had Re∣dress either by an Action against the Buyer, or upon the Fact against the Heirs of the Liferentrix, who received so great a Sum for the Redemption of the Liferent, when she knew that she was Labouring under a Cancer, and given over by the Phycisians, and every hour expecting Death. Arg. l. 2, ss. 5 de Act. empt. l. 11. ss. 1. ff de dolo.

Being thus advised we have given our Answer upon our Conscience, In testi∣mony whereof we have Subscribed the same and affixt thereto the lesser Seal of the Colledge of Ʋtrecht on the Rhine May 4/14. 1693.

Sic subscribitur.

• L. Vandepoll jur: Prof: Ʋltraj:
• Johan: van Muyden J. V. D. & Proff.