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.
Hamilton v. Cambuskeith
1583.
July. Case No. No 38.
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John Hamilton having gotten a contract transferred before the Commissary of Glasgow, against the Laird of Cambuskeith, who was minor and pupil, wherein he was obliged to infeft the pursuer in certain lands, he charges the minor and his tutor for fulfilling of this contract. They suspended upon this reason, that he was minor, et non tenebatur placitare super hæreditate, for if he were decerned to infeft the charger conform to the contract privaretur sua hæreditate, wherein he was infeft. Answered, The question was not in placito contra minorem, but in executione rei judicatæ. The Lords found the decreet should be put to execution against the minor, and found the letters orderly proceeded.
Fol. Dic. v. 1. p. 589. Spottiswood, (Minors and Pupils.) p. 211.*** Colvil reports this case:
John Hamilton, son to Agnes Stuart, and to the umquhile tutor of Cambuskeith, pursued the Laird of Cambuskeith, minor and pupil, and the Laird of Hesilwood, his tutor pro suo interesse, for the fulfilling of a contract which was transferred to the said pupil, and that by decree of the Commissaries of Glasgow. The tutor, in name of the pupil, obtained suspension, alleging, that he was minor annis et non tenebatur placitare, &c. The cause wherefor he was charged was to infeft the said John into some lands which the pupil's grandfather, and to whom he was heir by lineal progress, was obliged and bound to do the same; and the said pupil was already infeft in the said lands as heir to his grandfather; and so he alleged, if he was decerned to infeft the said pursuer privaretur bæreditate in minori ætate, the which was repugnant directly to the law foresaid. To this was answered, That the present question and pursuit was not in placito contra minorem, but it was in executione rei judicatæ contra minorem, and for the fulfilling of a decree, the which was already transferred in minorem. There were practiks hinc inde produced. The Lords found by interlocutor, that the decree should take execution contra minorem, and so repelled the reason of the summons.
