No Restitution till the other Party be restored. - Whether a Minor, who follows a Profession, can be restored ?
Wemyss v. Creditors
Date: 27 February 1637 Case No. No 156.
An allegeance, that a minor affirmed himself to be major at the time of granting a bond, is a relevant defence against him pursuing a reduction of that bond, ex capite minoritatis et lęsionis.
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Umquhile Mr John Wemyss minister, and his son John Wemyss as cautioner for him, being obliged to diverse persons in certain sums of money, the son convened all these creditors, to hear and see him restored super capite minoritatis et læsionis; and some of the creditors defending, alleged, That the pursuer could not quarrel the bonds given to them, because at the time of the subscribing of the bonds the said pursuer confest and affirmed himself to be major; and as the law provides that minors should be reponed, so the law provides that minors should not deceive majors, quia jura minoribus deceptis non decipientibus subveniunt.——The Lords found this exception relevent for these bonds, seeing the pursuer replied upon no fraud nor circumvention upon the defender's part, whereby they induced him to make that confession; but found the allegeance ought only to be proved by oath of the pursuer, or by writ, and not by witnesses. And it being alleged by some other defenders for their bonds, That at the subscribing thereof, the pursuer swore that he was then major; this was also found relevant to sustain these bonds to be sicklike proved scripto vel juramento, and no otherways. And other defenders alleging, That the pursuer promised never to revoke these bonds granted to them; this allegeance was repelled; for as he had wronged himself in the act of subscribing these bonds, against which the law restored him; so of like reason he ought to be restored against that naked promise, neither being judicially made, nor sworn in judgment, nor out of judgment. Item, Some others of the defenders alleging, That their bonds were granted upon monies furnished to the pursuer quæ erant in rem ejus versæ, in so far as they offered to prove, that they were given to his merchant from whom he bought stuffs, which were employed to be bridal cloaths to him, and which were worn by him at his marriage, and kept thereafter in his possession; this allegeance was also found relevant to elide the restitution craved against these bonds. And lastly, some others of the creditors alleging these bonds were made for cloaths, meat and drink, necessarily furnished by these creditors to this pursuer's brethren and sisters, and which they did at his special command and direction, and without which direction, they would never have made this furnishing; this allegeance was repelled, because the direction being given, (if any had been which was not granted) was given while his father lived, and the said furnishing also made during his lifetime, and the pursuer not being holden in law to furnish them, he cannot be convenable therefor; and notwithstanding of any alleged directing, the Lords found he ought to be restored. See Proof.
Act. Stuart.Alt. Gilmore & Craig.Clerk, Gibson.
Fol. Dic. v. 1. p. 585. Durie, p. 831.
