Scottish Court of Session Decisions

Subject_1 MINOR NON TENETUR, &c.
Subject_2 SECT. III.

No privilege where the process is founded upon the predecessor's deed. - Nor where action was commenced against the defunct. - Nor where the Minor is the first provoker.

Lord Elphinston
v.
Lord Salton

Date: 5 February 1607
Case No. No 40.

Minor tenetur placitare, being called for annulling a disposition made to his predecessor after inhibitions, quia predecessor erat in dolo.

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My Lord Elphinston being pursued by Lord Salton, the Lady Dumbreck Lesly and Alexander Montrare, for production of their infeftments of the lands of Dumbreck, to hear and see them reduced at his instance, as assignee to Towey Barclay; it was alleged for Lesly, That no process could be given against her, because she was neither summoned personally, nor at her dwelling-place, but only by open proclamation, without any such privilege granted by the summons, which allegeance was found relevant, In that same cause the Lords found, that, albeit she was minor, nevertheless tenebatur placitare super bæreditate, because the reason of her reduction was alienation after inhibition. In the which cause, both the buyer and the seller were in mala fide, and so she being convened, seeing dolo predecessoris, could have no delay by her minority; therefore the defender compeared for Alexander Montrare, and alleged, That no certification could be granted against him for non-production of his author Lesly's infeftments; because the Lords had found no process against her. It was answered, That Lesly's father being denuded of his right to the said lands in favour of the said Montrare to be holden of the superior, the evidents went with the land, and it was sufficient to the pursuer to call him that was in tenemento, as well for production of his author's infeftments as his own; and if he produced not, he would get certification against him for non-production of the hail; albeit his author or heirs were not called, no certification could be granted against his evidents; because albeit, by the alienation, the right of these lands was acquired to the buyer, yet the seller being bound in warrandice, would retain his own evidents whereby to defend himself and him to whom he had sold the land, in case any quarrel were moved against the same: and that the Lords had so decided an action of reduction pursued by the Laird of Polmais against the Laird of Redsall, for non-production of the infeftments pertaining to the Laird of Stramerie who was his author, because Stramerie's heirs were not called. The Lords ordained the parties to produce the practicks; and because the pursuer produced no practick, the Lords sustained the matter to; rest undecided, and thought meet that they should summon Lesly by a prilvieged summons.

Fol. Dic. v. 1. p. 589. Haddington, MS. No 1287.