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Scottish Court of Session Decisions >>
John Cuningham of Enterkin v His Curators. [1707] Mor 16325 (5 December 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor3716325-247.html Cite as:
[1707] Mor 16325
Curators of a minor who suffered him to intromit with his own rents during their office, accountable for the whole rents, except in so far as they could prove he actually intromitted, tho' the minor had retired receipts and renewed discharges to the tenants, and, after majority, fitted accounts with them as to preceding rests.
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Enterkin's curators, who had suffered him, during their office, to intromit with his own rents, being pursued at his instance to count and reckon, the Lords, July 23, 1707, found, That the minor's uplifting a part of his rents did only make him liable for his actual intromissions, and did not exonerate the curators from counting for the whole rents, deducting what the minor uplifted. The curators now alleged, That Enterkin counted with and discharged the tenants, and there after retired these receipts, giving new ones in place thereof, and applying former payments in satisfaction of subsequent rents due to himself; which uncontroulable acting by himself, without advising the curators, was sufficient to exonerate them, who never meddled, further than to authorize him, when required, knowing his activity and application; especially considering, that he continued his management after majority, and fitted accounts with the tenants as to preceding rests, so that the curators could not know what he received, the receipts being retired and renewed.
Answered for Enterkin: That his discharging after majority some tenants, could not hinder to charge his curators for the rents of other tenants never intromitted with by him, and suffered to perish by the defenders' negligence. Again, seeing both the tenants and the curators were liable to Enterkin, he might take what he could get from either, and seek what he wants off the other; for a minor getting, after majority, decree for his relief of cautionry, was not excluded from the benefit of reducing his bond upon minority; February 20, 1668, Farquhar contra Gordon, No. 65. p. 5685.; and the homologating one article doth not infer the homologation of another article in the same writ; November 22, 1662, Primrose contra Dun, No. 85. p. 5702.
The Lords sustained the defence to exonerate the curators only as to what Enterkin actually intromitted with.
