Scottish Court of Session Decisions

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

Privilegiatus contra Privilegiatum.

Lyell
v.
Dones

Date: 18 June 1680
Case No. No 58.

The privilege minor non tenetur found not to exclude reduction of a decree obtained by a minor against a minor.

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Sarah Lyell being infeft in a tenement in Edinburgh as heir to her father, and there being a decreet of removing obtained against her at the instance of Mary and Elizabeth Dones, she raiseth reduction of the decreet of removing, on this reason, that the Dones' right proceeded a non habente potestatem, the common author being first denuded in favour of Lyell. The defender alleged no process, because they are minors, and so not holden placitare de hæreditate paterna. The pursuer answered, That she is also minor, et privilegiatus contra privilegiatum nan ulitur privilegio. But, 2do, Lyell having been in possession before the decreet of removing, and having continued her father's possession the Dones having obtained decreet of removing against her, this reduction is in defence of her right, and her own and her father's possession, and therefore the Dones ought either to restore the possession, or dispute their right.

Which the Lords found relevant.

Fol. Dic. v. 1. p. 591. Stair, v. 2. p. 771.