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Scottish Court of Session Decisions >>
William Drummond v Colonel Menzies's Heir. [1704] Mor 16320 (7 November 1704)
URL: http://www.bailii.org/scot/cases/ScotCS/1704/Mor3716320-243.html Cite as:
[1704] Mor 16320
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William Drummond, writer in Edinburgh, pursued Colonel Menzies's heir for payment of 500 merks, contained in his predecessor's bond, on this passive title, That he had accepted a disposition with the burden of debts, and so præceptione hæreditatis was liable. Answered, I am only a pupil of seven or eight years old, and so can neither accept, repudiate, nor possess, law presuming that age to have no will or deliberate knowledge in such things, and therefore cannot be universally liable, unless, he prove the minor to be locupletior factus by it. Replied, It is confessed, by a late act of Parliament, pupils are exeemed from personal execution by caption, till their age of fourteen; but to exeem their estates till then, is contrary to the analogy of all law; for if he be lesed by his tutors accepting a right, he can be reponed against their deed; but it were absurd to postpone creditors' diligence on that pretence, for if it be hæreditas damnosa, they may renounce and repudiate; and if they do not, they must be liable. The Lords considered, that pupils had two remedies; one by the actia tutelæ against their tutors; and the other by restitution against deeds done to their lesion; and that they could not burden the pursuer to prove the pupil was lucratus, but the tutors ought to repudiate, if they would free the pupil of this pursuit; and seing they did, not, they repelled the, defence, and found the minor liable for the debt.
