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Scot of Hartshaw pursued a declarator of property within the bounds libelled, and that he had been in possession by pasturing, and doing other deeds of property, and debaring the defender Hartwoodburn and his predecessor. In this process there was an act of litiscontestation; whereof a reduction was intented, upon that ground, that the defender was absent, and was minor and indefensus, wanting tutors and curators for the time, his tutor, being dead; and that he had a defence minor non tenetur placitare.
The Lords found, if the summons had concluded the possessory of molestation, and if that had been libelled, that the pursuer, the time of the intenting the pursuit, was in possession, they would have repelled the defence (that non tenetur) against the molestation; but because a declarator of right was only libelled, they reponed the minor, and found that non tenetur placitare.
For Hartwoodburn, Longformacus.For Hartshaw, Sir George M'Kenzie.
Fol. Dic. v. 1. p. 583. Dirleton, No 64. p. 27.
