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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Erskine v The Daughters of Erskine. [1739] Mor 9002 (22 December 1739)
URL: http://www.bailii.org/scot/cases/ScotCS/1739/Mor2209002-133.html
Cite as: [1739] Mor 9002

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[1739] Mor 9002      

Subject_1 MINOR.
Subject_2 SECT. VIII.

Lesion in taking Legal Steps.

Erskine
v.
The Daughters of Erskine

Date: 22 December 1739
Case No. No 133.

A party had been cautioner for a teller in a bank, who, after the cautioner's death, run in arrear. The cautioner's children were found liable, altho' they pleaded minority and lesion; alleging, that their tutors, ought to have withdrawn the caution.


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Colonel John and Mr Thomas Erskines had been cautioners for Mr George Andrew, as one of the tellers in the Royal Bank; and the Colonel being charged on his bond of cautionry for the sum of, in which Andrew was deficient in his accounts, repeated a process for his relief of the one-half from the representatives of the other cautioner.

Their defence was, that the deficiency had happened since their father's death, while they were pupils; that it was the duty of their tutors to have withdrawn their father's bond of cautionry, which every cautioner for a person in office, or his heir, may do when he thinks fit; and that against this omission they fell to be reponed on the head of minority and lesion.

But as this was no direct lesion, but a lesion arising from the accidental bankruptcy of the principal, and that occasioned by his latent and scarce to be suspected malversation, the Lords ‘found it not to be a lesion of that nature, against which the minor could be reponed; and therefore repelled the defence.’

It is a different question, how far tutors are liable to make up the loss arising from their omissions; for though, in this case, even the tutor would not be liable, as it was such an omission as a prudent man might have fallen into, yet, in many cases, minors will not be reponed against their tutors' omission, to the prejudice of a right acquired by third parties, when yet the tutor may be liable to make up the minor's loss.

Fol. Dic. v. 1. p. 582. Kilkerran (Minor.) No 4. p. 347.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1739/Mor2209002-133.html