Citation in Simple Reductions of Voluntary Rights.
Lord Blantyre v. Walkinshaw
Date: 2 July 1667 Case No. No 76.
In reduction of a bond granted in minority, if the assignation be intimated, the assignee must be cited inter annos utiles, and not the cedent.
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The Lord Blantyre pursues a reduction of a bond, as being granted in his minority. It was alleged for Walkinshaw, assignee to the bond, absolvitor, because there was no process intented against him intra annos utiles, till the pursuer was past twenty-five years. It was answered, That the defender's cedent was cited, to whom the bond was granted, and this defender's right will fall in consequences, and there was no necessity to cite him in the same way; that the service of an heir may be reduced without calling of his creditors, or those that are infeft by him.
The defender answered, That his assignation was intimated before the citation against his cedent, which cannot be miskenned by the pursuer, to whom the intimation was made, after which the cedent had no right, and any citation against him was of no moment; neither is the Case alike to the reduction of a retour, wherein the reducer doth neither know, not is obliged to know, the creditors rights.
The Lords found that the assignee, after the intimation, behoved to be cited intra annos utiles, but they sustained improbation against the citation, made against the assignee by way of defence. In this case it was not urged, whether the intimation was personal to the pursuer, or only at His dwelling house; or whether it was recent before the citation; for, if it were not personal, or recent, it were hard to oblige the pursuer to remember so transient an act, as an intimation.
It was further alleged by the defender, That there was no lesion, because he offered him to prove, that the sum was delivered to the minor's curators, at least to the minor and his curators jointly, who being persons abundantly solvendo, and very provident, the minor could have no lesion, seeing they were comptable. It was answered, non relevat, unless it were alleged positive, that the sum were utiliter impensum, for the minor's profit; for, the minor has his option, either to pursue the curators, as intromitting, or to reduce his obligation, and the curators not being in this process, no probation of the delivery of money to them will bind them, but were there necessity, that they were both cited, and it instructed by writ.
The Lords repelled this defence, but severals inclined not to sustain process, till the curators were first discussed; and whether the minor was lesed or not.
