Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. III.
No privilege where the process is founded upon the predecessor's deed. - Nor where action was commenced against the defunct. - Nor where the Minor is the first provoker.
Abbot of Dunfermline v. The Heirs of Mr George Crichton
Date: 16 November 1574 Case No. No 34.
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Ane minor may be compellit to enter in pley in ony actioun or cause concerning his heritage, gif the samin was intentit agains his predecessour, swa that litiscontestation was maid thairin befoir his predecessouris deceis.
Balfour, (Minors.) No 11. p. 333.*** Colvil reports this case:
1574. November 16.—The abbot of Dunfermline pursued Martin Crichton of Cranston-Riddell, and Mr Robert Richardson prior of St Mary's Isle, for recognitition of certain lands immediately holden of him, by service of ward and relief, alleged to be analzied by the said Martin, present prior thereof, without consent of the said abbot superior thereof. At the calling of the summons compeared Mr George Crichton, and desired to be admitted for his interest, and was admitted, wherein protestation was made betwixt the said abbot and Mr George, after long reasoning and diverse allegeances. And in the mean time Mr George died, and left behind him two daughters, the eldest thereof of ten years of age, whom the abbot called to hear and see the said matter transferred in their heirs foresaid. The bairns alleged, That no action should be transferred or pass in them, contrary to the deprivation of their heritage during the time of their minority.—The abbot alleged, That in respect the process was begun in their father's time, and litiscontestation made after diverse allegeances, wherefore it should be transferred, notwithstanding their minority; which allegeance of the Abbot the Lords found relevant, and ordained the process to be transferred in the said minors, notwithstanding their minority, in the same state as it was the time of their father's decease, in respect of litiscontestation made in their father's time, and against them.
In the foresaid action the minors alleged, That no action could be had against them in this matter, because they were not as yet served as heirs to their father.—The Abbot of Dunfermline alleged, That they two were charged by the King's letters to enter heirs to their father at a certain day, with certification that if they fail, that sicklike process should be given against them, as if they were entered, and for verification thereof, produced letters duly executed and indorsed.—The daughters minors alleged, That the indorsation was false and feigned, and offered them to improve the same as accords of the law.—The Abbot alleged, That notwithstanding the improbation, the process should not stay in the mean time; for by the practice, where any take to improve the execution of a summons, it stays not the process.—The defender alleged, That these letters were of another nature than a common summons, because these letters are a charge to do a deed, as to enter heir to their father; and also the Abbot pursuer has used these letters of charge in modum probationis, to instruct his action, and therefore the process should stay in the mean time; which allegeance of the defenders was found relevant by the Lords; and assigned to them a day to improve the indorsation foresaid, and ordained process to stay in the mean time.
