Competent, and omitted, is not a proponable objection against a minor. The Court in this case avoided deciding the question, whether a minor can be restored against proponed and repelled.
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Cockburn of Piltoun as assignee by William Tours, who was infeft in an annualrent in the estate of Inverleith for his portion, being 8000 merks, obtained a decreet of poinding of the ground against Halyburton who had bought the land; which now being suspended, and reduction raised, it was alleged, That Halyburton was minor, and that a relevant defence was either omitted, or not clearly and fully debated, which if it had been done, or were now to do, the Lords would surely sustain the some; but being overly proponed, the same was repelled upon a report. It was answered, That albeit minors may be restored against decreets in foro, where, they have omitted any point in fact, yet they have no privilege to quarrel the Lords' interlocutor upon injustice and inconsideration, and therefore cannot pretend that their allegeance might have been more fully debated, in which they are in the same case with majors, 2do, The minor did homologate the decreet, by payment of annualrent conform, after his majority. It was replied, That albeit the Lords’ decreets and sentences cannot be questioned upon iniquity, by parties compearing, yet libels of special natures, though advised by the Lords, as to the relevancy, in absence of the defenders, if in a reduction or suspension they appear and dispute the relevancy of the same points without any other defence in facto, but only arguments against the relevancy, as the Lords will recall their former sentence, as passing cursorily, without advertance, so they may do the same in relation to a minor, though compearing; and as to the homologation, payment of the annualrent being actus necessarius, to save the tenants from being poinded, cannot import approbation of the sentence; 3tio, The minor here propones further, viz. That the clause whereon his defence was founded being dubious, he offers to prove by the writer and witnesses inserted, that it was so expressly communed and agreed, as would be evidently relevant for him.
The Lords inclined not to determine the question, whether or not a minor could be restored, where there was no new matter of fact, but repelled the allegeance founded upon homologation; and ordained, before answer, the writer and witnesses inserted to be examined, what was the communing and meaning of parties, anent the dubious clause in the contract, whereon the minor's defence was founded; and which allegeance of declaring the meaning of the clause, was not proponed by the minor in the former decreet against him.
Fol. Dic. v. 1. 582. Stair, v. 2. p. 67.*** Gosford reports this case:
February 10.—In a reduction of a decreet of poinding the ground obtained at Pilton's instance, as being infeft in an annualrent effeiring to 8000 merks out of the lands of Inverleith, upon this reason, that the decreet was given against Halyburton, who was minor, and not able to inform, who might have added to the defence omitted, that the bond granted by Halyburton's father, whereupon infeftment followed, was affected with this condition, that the principal sum should not be payable, until a real right upon the said lands, in the person of one Simpson, who was creditor to Inverleith, should be first paid and satisfied; whereas it might have been, and is now farther alleged, and that it is now offered to be proved by the communers and writers of the new bond, that it was vere actum inter partes, that no annualrent should be paid, in case Simpson prevailed; likeas he hath now prevailed, by obtaining decreet upon his real right; so that if the bond should be interpreted otherwise, the lands would be doubly burdened, which would be against the intention of the parties. It was answered for the defender, That the said heritable bond granted by Halyburton, to which the defender was assigned in place of a former infeftment of an annualrent, out of the said lands, granted by the Laird of Inverleith to his brother, who was content to accept of this new security, which bears nothing but a continuation to pay the principal until Simpson's real right should be purged by the common debtor, but bears an express obligement to pay annualrent in the mean time; in respect whereof the Lords gave their decreet of poinding of the ground; which being just upon the matter, that decreet can never be reduced upon minority and lesion, there being no difference betwixt minors and majors, where, decreets are given upon a point of law controverted; and for any new allegeance, it cannot be now received, seeing the deposition of writers and communers cannot take away a clear bond wherein there is no ambiguity or unclearness.
The Lords, notwithstanding, ordained the writers and witnesses to be examined, ex officio, which was very hard, seeing the father who bought the estate of Inverleith was burdened with the former bond of provision made by the old Laird to his brother, and which was preferable to Simpson's right, so that both these rights being known to the buyers, it could not be presumed in common sense that it should have been intended that if Simpson obtained a decreet, that Inverleith's brother, or Pilton his assignee, should take their whole right.
Gosford, MS. No 470. p. 242.
*** A similar decision was pronounced 15th June 1680, Gordon against the Earl of Queensberry, No 3. p. 8235. voce Letters of Supplement.
