Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

James Matheson
v.
Jean Matheson and John Arthur

Date: 11 February 1631

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Theer was a summons intented at James Matheson's instance against Jean Matheson his father's sister, and John Arthur her assignee, and others his creditors, to hear and see him restored against a deed of his mother's, whereby she, being left tutrix-testamentar to him, had confirmed him, being an infant, executor to his father, and so made him liable to his father's debts and the legacies left in his father's testament. The reason why he sought to be restored was, because his tutrix had wasted all the goods contained in the testament; and so he, having no benefit by that office, he craved to be reponed against it; or at least that he should sustain no prejudice by it. It was excepted, That he could not seek to be restored against the office of executory, because he sustained no prejudice by it, nor could if he were diligent; because he might have beneficium inventarii; and restitution is only granted, to minors, of such deeds as were to their enormous hurt and loss: But this was no such deed; for there was much free gear in the father's testament. As to that, that his mother had spent it, that was not a cause of restitution, seeing he had an ordinary remedy for that: Et non competit restitutio in integrum, ubi suppetit ordinarium remedium. The pursuer offered to assign any action he had against his mother in the defender's favours. After long reasoning of this matter, The Lords would not decide that, whether an executor might be restored in integrum or not. But, in respect that the tutrix was responsal, they ordained the pursuer to discuss her before they would give an answer to it; and for that effect continued the matter to the first of November following.

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