Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. I.
In what cases the privilege competent.
Alison Kello v. Pringle
Date: 31 January 1665 Case No. No 11.
The defence, minor non tenetur, was not sustained, where neither the predecessor was infeft, nor the defender, his heir.
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Alison Kello pursues a reduction against the Lairds of Wedderburn and Pringle, and craves certification. It was alleged for Pringle, no certification, because he was minor, et non tenetur placitare de hæreditate paterna. The pursuer answered, Primo, non relevat against the production; but the minor must produce, and may allege that in the debate against the reason; 2dly, Non constat that it is hæreditas paterna, and therefore he must produce at least his father's infeftment; 3dly, All he alleges is, that his father had an heritable disposition, without infeftment, which cannot make hæreditatem paternam, else an heritable bond were not reducible against a minor, or an apprising and tack; 4thly, Albeit the allegeance were proponed, in the discussing of the reason, yet the reason beings super dolo et metu, upon which the defender's original right was granted, and not upon the point of preference of right, the brocard holds not in that case, as it would not hold in improbation, in casu falsi.
The Lords found, That the defender ought to produce his father's infeftment, and that a naked disposition would not be sufficient; which being produced, they would sustain the defence, quoad reliqua, against the production; but that they would examine witnesses upon any point of fact in the reason to remain in retentis, that the witnesses might not die in the mean time, without discussing the reason, but prejudice of their defences.
Fol. Dic. v. 1. p. 588. Stair, v. 1. p. 260.*** Newbyth reports this case:
In a pursuit raised at the instance of Alison Kello and her spouse against Isobel Home, relict of umquhile Mr Alexander Kinnier, their son, and heir to the said Mr Alexander, for reduction of a contract and disposition of certain lands passed betwixt the said umquhile Mr Alexander Kinnier, the Laird of Wedderburn, and others, wherein the pursuer called for several charters, comprisings, and other writs and securities; and there being a defence proponed for the minor, that non tenetur placitare; the Lords found, That albeit the minor non tenetur placitare, yet tenetur to produce his father's infeftments, whereby it may appear that the same was hæreditas paterna; and found likewise, that they might take the deposition of witnesses to remain in retentis, if need were, till the minor were major, the witnesses being old or in possibility to die.
