Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. II.

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?

Dunbar
v.
Lesly

Date: 26 June 1628
Case No. No 25.

A cautioner of a minor, was allowed to produce the minor's renunciation to be heir, after the minor's death.

Click here to view a pdf copy of this documet : PDF Copy

The son of Hugh Dunbar of Lochingelloch, cautioner to John Lesly taylor, for the Laird of Mochrin, being minor, and charged to enter heir to his said father, at the instance of the said John; James suffers the bond wherein his father was cautioner to the said John Lesly to be transferred against him for null defence as charged to enter heir. Thereafter the said minor suspends the decreet, and finds George Campbell of Horsecleugh cautioner for him, against which protestations were admitted. Thereafter the minor raises a new suspension for him, and the said George Campbell as cautioner for him, and finds one George Dunbar cautioner for them in the said suspension, and likewise raised reduction of the decreet of transferring. The reason of reduction and suspension were both one, viz. that the said minor, with consent of his curators, offers to renounce to be heir; and, at the purchasing of the suspension, the renunciation was produced to the clerk of the bills, subscribed by the minor and his curators; but, before the day of compearance, the minor dies; notwithstanding George Campbell his cautioner insists to pursue the reduction of the decreet for his own relief, the same being raised at the instance of them both. It is alleged by James Lesly, That this renunciation cannot be offered now by the cautioner after the maker's decease, seeing it was a personal action to be done only by the maker thereof, who might either use the same or not at his pleasure; and if it had been used by himself, the defender might have alleged that it could not be received quia immiscuit se hereditariis bonis; and referred the same to his oath, of which reply and probation he is now prejudged by his decease. To which it was answered, That the reasons of reduction were relevant, notwithstanding of the answer; for the renunciation being lawfully made by the defunct, and produced and used by him in obtaining of the said second suspension, his death thereafter could not make it ineffectual to produce relief to his cautioner; as, for the inconveniency falling out by his death anent the probation by his oath, there is no law can stay these and the like fatalities. The Lords found the reason of reduction relevant.

Auchinleck, MS. p. 131.

*** This case, as reported by Spottiswood and Durie, is No 15. p. 5392, voce Heirship Moveables.