No Restitution till the other Party be restored. - Whether a Minor, who follows a Profession, can be restored ?
Gairdner v. Chalmers
Date: 10 July 1636 Case No. No 155.
A minor, who was a notary, was not permitted to reduce on minority a bond written by himself, which it was alleged he had homologated, by payment of annualrent after majority, and this last fact was allowed to be proved prout de jure.
Click here to view a pdf copy of this documet : PDF Copy
John Gairdner intented a reduction of a contract, whereby he was obliged to infeft Alexander Chalmers in an annualrent of L. 40 by year, redeemable upon payment of 600 merks, upon this reason, That he was minor the time of the subscribing it.—Alleged, He could not be heard to reduce upon minority, because that is granted only to minors that are circumvened through facility, and know not what they do; whereas the pursuer was a notary, and drew the contract with his own hand, and besides not far from majority; likeas, since his majority he had homologated the same, by payment of the said annualrent.—Replied, His quality of notary will not make him lose the benefit competent to minors. As to his homologation, it is only probable scripto vel juramento partis.—The Lords, considering the quality of the pursuer, that he was a public notary the time of the subscribing the contract libelled, and was the drawer of it himself, sustained the last part of the allegeance, bearing the pursuer to have homologated the contract, by payment of annualrent since his majority, to be proved prout de jure, notwithstanding it was to fortify a contract reducible by law, whereby a minor had disponed his heritage.
Spottiswood, (Minors and Pupils.) p. 214.*** Durie reports this case:
1636. July 19.—Umquhile William Gairdner being addebted to Chalmers in the sum of 600 merks by his bond, whereupon John Gairdner being decerned as lawfully charged to pay, &c. and being charged, and for obedience thereof having given a new bond to the creditor, upon which he being charged, he suspends, and intented reduction upon this reason, viz. his minority when he subscribed the last bond; whereto it being answered by the charger, That he could neither suspend nor reduce upon that reason of minority, seeing the time when he subscribed the bond he was a notary, which being a public charge, presumes majority; and in fortification thereof, he offered to prove that since he was major, he paid annualrent for this same sum to the charger.—These exceptions conjunctim were found relevant, and the payment was found probable by witnesses, albeit the suspender and reducer alleged, That it was only probable by writ or oath of party, tending to make a null bond good, which was a like as if he were to prove the debt by witnesses; which the Lords repelled, and found the same probable by witnesses, as said is, it being conjoined, that the bond was made by a notary.
