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Scottish Court of Session Decisions >>
Tailzifer v Drummond. [1631] Mor 9000 (11 June 1631)
URL: http://www.bailii.org/scot/cases/ScotCS/1631/Mor2209000-129.html Cite as:
[1631] Mor 9000
A minor pursued as charged to enter heir, offered to instruct payment of the debt, but having failed to do so, when the term came to be circumduced, he was still allowed to give in a renunciation by him and his curators.
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One Drummond being convened as lawfully charged to enter heir to Sir Alexander Drummond his father, for payment of a debt due by his father, at the instance of one Tailzifer in Edinburgh; and the minor compearing by his procurator, and alleging the debt to be paid, and litiscontestation being made therein, and a term assigned to him to prove the same; at the term of probation the pursuer calling the act, and desiring the term to be satisfied, the defender's procurators declared, that they would pass from that exception; and seeing the defender was convened only as lawfully charged to enter heir, he offered to produce a renunciation, subscribed by the minor and his curators, renouncing to be heir to him rebus integris, seeing he never had intromission. And the pursuer replying, that, in hoc statu processus, he cannot be heard to renounce, after proponing of a peremptor of payment, and after the term was past assigned to prove it; for he alleged, that that made rem non integram, and it were dangerous to rescind litiscontestation done partibus comparentibus upon such an offer; for albeit, after sentence against a party, as lawfully charged to enter heir, the Lords in suspension will permit the said party to renounce, notwithstanding of the decreet so given against him; yet it is not alike in this case, where there is an exception proponed and admitted, of payment of the debt, which perimit totam causam; the Lords, notwithstanding of the act, found that the minor, in hoc statu processus, might be heard to renounce, for he might be heard, without all controversy, to reduce upon that reason, he being minor, and before sentence, at the first term, the Lords thought the minor might be reponed without further process; for a major, after sentence, is heard to renounce, by suspension of the decreet given only against him as lawfully charged, albeit he compeared to renounce before, and did it not.
Act. Cunninghame.Alt. Primrose.Clerk, Scot.
Fol. Dic. v. 1. p. 582. Durie, p. 590.
