Where a reduction had been instituted on minority, and a defence consistent with the reason of reduction was proponed, the pursuer was notwithstanding bound to prove the reason of reduction.
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Hutchisons having obtained sentence against Mitchells, as heirs of their father, and their tutors and curators; they intented an action before their age of 21 years, of restitution in integrum, and reduction of the service and retour ex capite minoris ætatis et læsionis. Against the which, it was alleged, That all parties having interest were not called, viz. the pursuers in the decreet, Hutchisons, who were a necessary party, having obtained their decreet against Mitchells as heirs, and which decreet would fall per consequentiam, and they not being acted pro interesse, before the pursuers' age of 25 years, there is now no locus for restitution to their prejudice. To which it was answered, That Mitchells being only principaliter, to reduce a service and retour, they needed not to call any but the judge, clerk, and inquest, which they did debito tempore, and they were content, that Hutchisons should compear for their interest, to propone any thing against the restitution, as if they had been cited. Like-as, their decreet was not known to the Mitchells, being recovered against them when they were but 12 years of age, which never came to their knowledge, or if ever it did, they had forgotten it after so long a time.
The Lords repelled the allegeance.
In this process there having been an interlocutor of the English Judges, finding that a defence proponed by the Hutchisons, viz. that the pursuers had disponed, or excambed lands pertaining to their father to whom they were heirs, did exoner the pursuers ab onere probandi minorem ætatem et læsionem;
The Lords found this unjust, and that the pursuers should prove the reason of reduction, because the defences and reasons are consistent, and the defender might lawfully propone the defence, denying the reason.
Gilmour, No 3. p. 3.
*** Stair's report of this case is No 77. p. 2216, voce Citation.
