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?
Gordon v. Earl of Errol
1582.
June. Case No. No 16.
Found that a minor may be an arbiter.
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The Laird of Pitlurg, Gordon, pursued for letters conform to a decree-arbitral given between him and the Earl of Errol, and the said decree was given by the Earl of Huntly, being minor annis, unto whom the said parties compromitted by a blank. It was alleged by the said Earl, that no letters ought to be given, because the said submission and compromit, whereupon the said decree past, was null of itself, by reason the submission was made to the Earl of Huntly minor annis; nam de jure minor annis, arbiter esse non potest, cum L. 41. D. De recept. arbit. aut ullo modo judex, L. 57. D. De re judicata, ac etiam de jure nostro municipali, prout in L. 2, regia majestate L. servis autem. To this and to the laws was answered, That the parties had homologated the submission, and compromitted by submitting of a blank; and as to the laws they were understood except the parties had not consented in predictum comitem, by the subscribing of a blank, and also the laws appear to be understood, de arbitrio et non de arbitratore et amicabile compositore; and there is great difference inter arbitrium et arbitratorem, sivi amicabilem compositorem, ut notatur per Joannem Petr. de ferra, in forma libelli, de quo arg. ad pænam ex compromisso, nam arbiter procedit in specta forma judicii et tanquam judex ordinarius, arbitrator autem prætermisso juris ordine, et prout equum sibi visum fuerit; and into all their submissions which are made by blanks, he unto whom it is compromitted, and into whose hands they are put by reason of the great liberty that is given unto the filling of the same, he cannot be accounted arbiter, and restricted as judex ordinarius, but rather arbitrator et amicabilis compositor, having liberty as he pleases to fill the blank. To this was answered, of the practick of Scotland, Judges, arbiters, and amicable compositors are all but one, and under one form and manner of proceeding, but as to the word ‘arbitrator,’ non est de jure, but a commentatoribus excogitatum, and as to the consent of parties, and their homologation unto the minor, they might not do that in prejudice of the law, quia jus commune privatorum pactionibus tolli non potest. After long reasoning and advising, it was pronounced by the President, by reason of the equality of voting among the rest of the Lords, the matter stood, that the foresaid submission was lawful, notwithstanding of the foresaid alleged laws.
