Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. I.
In what cases the privilege competent.
Stuart v. E Home and Others.
Date: 12 July 1626 Case No. No 8.
A minor having granted a subaltern right to a major, the privilege was refused to the major, because the minor could sustain no prejudice by reduction of the major's right.
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In an action of reduction at the instance of John Stuart, as being infeft by the King in the barony of Coldinghame, and also at the instance of Douglas of Evlie and Cranston of Moriston, who were also infeft in the said lands and barony by the said John Stuart to be holden of the said John, against the Earl of Home and certain others, pretending right to the lands of the barony granted to them by the King; John Stuart's self, who was vassal to the King, being debarred from pursuing by horning; it was alleged, That the rest of the pursuers, who were only infeft by a base holding to be holden of the said John Stuart, and not by a public holding of the King, could not be heard to pursue this action of reduction against the defenders, who were infeft by a public infeftment holden of the King; which public right could not be called in question to be reduced by virtue of a base right which was not made public nor holden of the King, and so they could not have interest by virtue thereof to reduce their public right, which was corroborate and depended upon acts of Parliament. This allegeance was repelled; and the Lords found, that the said base infeftment gave sufficient interest to the pursuers to pursue this reduction of the said defender's public right, albeit John Stuart was debarred by horning, seeing their right was a right of the property, and that the same proceeded from John Stuart who was infeft publicly to be holden of the King. In this same cause, the sasine produced for the pursuers, who had their right from John Stuart, as said is, being quarrelled by the excipients, because it was given at the place of Coldingham, and not upon the grounds of the lands and kirks therein contained, which lies discontigue from the place where the same was taken; and, that no inferior person nor no subject could make an union but the King allenarly; his allegeance was also repelled; and the sasine was sustained, seeing the whole lands were disponed which were contained in John Stuart's own infeftment; and in his infeftment the King had given an union, appointing sasine to be taken at the place where this sasine controverted was taken; so that, albeit a subject could not make an union, yet he might dispone the lands united in that same manner as he had the same granted to himself; and this was found, albeit the defenders alleged that the disposition could not avail so far as concerned the union, except that disposition had been confirmed, by the King; which was repelled, as said is.
July 14.—In the foresaid action of John Stuart against the E. of Home, whereof mention is made 12th of July 1626; in the which action, the Earl of Home being absent, one compeared who had a subaltern right, viz. a tack of some teinds set to him by the Earl of Home, and which would fall if the Earl of Home's right fell, as was intended by this reduction, and alleged, That the Earl of Home, the party principally called, was minor, and so quod non tenetur placitare super hæreditate, &c.; and which benefit ought to extend to the excipient whose tack is of a part of the teinds contained in his heritable erection desired to be reduced; the Lords repelled this exception, being proponed for this defender and not for the Earl of Home, who compeared not to allege the same, seeing neither he to whom it was competent compeared to propone it; neither did the proponer thereof show what prejudice the Earl of Home could have by the proceeding of this reduction; for the pursuer replied, That the Earl of Home was denuded of his heritable right in favours of another person who was convened in this same reduction, neither was the Earl of Home obliged in warrandice of any of the rights disponed by him, and so be could have no prejudice, being allenarly obliged to warrant from his own fact and deed; and so the process was sustained, notwithstanding of his minority.
Act. Craig.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 588. Durie, p. 213. & 216.
