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Scottish Court of Session Decisions >>
Sir R. Hepburn v Hepburn. [1634] Mor 8921 (15 January 1634)
URL: http://www.bailii.org/scot/cases/ScotCS/1634/Mor218921-029.html Cite as:
[1634] Mor 8921
Minor's privileges. - Oath. - Process at a minor's instance to sell land for payment of his debt. - Privilegiatus contra privilegiatum. - How far liable for goods and money furnished to him. - And for money borrowed by his tutor. - May chuse the place of his residence. - Entitled to examine the state of his affairs. - Can a minor pupil contract marriage? - Can a minor be a tutor? - An arbiter? - or a Commissioner of Supply?
Sir R Hepburn v. Hepburn
Date: 15 January 1634 Case No. No 29.
A promise by a minor may be proved by his oath.
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Sir Robert Hepburn being charged by his son and Sir John Seaton his father-in-law, to pay to his son 20 chalders of victual, conform to the obligement contained in their contract of marriage; and Sir Robert alleging, in his suspension, That his son had promised to him, and sworn by his oath, (which promise the father then accepted) that he should be content with 18 chalders, and never seek more from him; and the son replying, That he was then minor, and yet is presently, and now revokes that promise, as done to his enorm hurt and lesion; likeas, Sir John Seaton, the father-in-law, alleged, That the said promise, for the said reason alleged by the son, was not in law obligatory; attour that he was a party contractor, and now charger in favours of his good-son and his daughter, for whose aliment this provision was contracted, and so his good-son could not discharge any part thereof, specially being done by contract of marriage, which is contractus optimæ fidei, and the father could not, in prejudice thereof, accept any promise made by the son, being then, and yet minor, without his consent, who was contractor. The Lords found this reason relevant to be proved by the son's oath, albeit then, and yet he was minor; seeing it was alleged to be sworn by the son, and that it was accepted by the father, the son being the time of the making thereof 20 years of age, and so proximus majoritati; and found, that this promise tended not to his enorm lesion, the oath and promise, if the son should confess it, being made to the father in his old age and sickness, and who only did retain two chalders of twenty, in respect of the authentic, sacramenta puberum, Cod. Si advers. venditionem; neither respected they in re tam minuta, where the payment was only to be made during the father's lifetime, who was in heavy sickness, and like shortly to die, that the promise was not alleged to be made and judicially sworn, but that it was extrajudicial betwixt the father and the son; but found that the acceptation by the father ought also to be proved by the son's oath; and the son being sworn, denied that the father accepted of the promise, albeit he granted the making thereof; and so the father was decerned therein, albeit he swore he had accepted of the promise.
Act. Stuart.Alt. Nicolson et Nairn.Clerk, Hay.
Durie, p. 697.
