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.
Scott v. Kincaid
1581.
July. Case No. No 35.
Found in conformity with Queen's Advocate against Wemyss, No 29. p. 9089.
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Alexander Scott burgess of Edinburgh, pursued one Edward Kincaid pupil, Scott his mother, and David Couris her spouse, for his interest, to hear and see certain infeftments, with the sasines, and all that followed thereupon, of certain acres of land, with other infeftments, and given in clause of warrandice, to be reduced, retreated and rescinded. The principal reason of the summons was, because umquhile James Kincaid maker of the said infeftments, and giver of the said sasines, of his own motive will, uncoacted or compelled, with consent of John and William Logans and Stephen Kincaid, interdicted himself from alienation or disposition of any lands or heritages, unto his perfect age of 21 years; the which interdiction was registered in the books of Council, and decrees of the Lords, and executorials past thereupon, and thereafter letters published openly at the market cross, and sufficient intimation of the same made to all as effeirs; and so the said infeftments, made in the same time, ought to be reduced, retreated, and rescinded, as made and given by him who had no power to do the same.—It was answered by the defender's advocate, That the pupil could not be presently compelled to enter in plea, because he was but infans trium annorum; and the infant was produced to the inspection of the whole Lords, and great lamentation made to move the Lords to cause such an infant and orphan to be convened and deprived of his heritage in the estate he was presently.—It was answered, That in this case the municipal law had no place, for he was convened “de dolo paterno, quia fraus et dolus nemini patrocinare debent.”—To this was answered, That ‘quoad debitum paternum,’ it was ‘expressis verbis' spoken in the text, de debitis paternis propriis et non a dissasina,’ but there was no mention ‘de dolo paterno, aut delicto, seu quasi paterno; et ubi lex non distinguit nee nos distinguere deberpus.’——The Lords, after long reasoning, voted for the most part, that the pupil and infant ought to answer upon his father's deed, ‘et quod minor non debuit locupletari cum alterius jactura, et tenebatur de dolo paterno quatenus ad eum pervenit, L. unica, Cod. Ex delictis defunctorum, in quantum hæredes conveniantur, nam, ut ait lex, post litem contestatam tenentur in solidum, et aliter in quantum ad eos pervenirit, ne alieno scelere ditentur.
