Scottish Court of Session Decisions

Subject_1 MINOR NON TENETUR, &c.
Subject_2 SECT. I.

In what cases the privilege competent.

William Yeoman, Advocate,
v.
the Relict and Children of Mr Patrick Oliphant

Date: 8 July 1676
Case No. No 15.

An heir who has right to the estate, by disposition from his defunct predecessor, not entitled to the privilege. See Angus against Ker, No 3. p. 9056.

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In a reduction at the said William's instance, against the said relict and children, of their right and disposition, it was alleged for the Children, That they were minors ‘et non tenentur placitare super hæreditate paterna;’ and for the Relict, it was alleged, That her right being a liferent in the body of that same disposition of fee made to the children; and, in case of eviction, she having right to pursue them, if they were not obliged to answer to the pursuit, she ought to have that same privilege. It was replied, That they ought to answer notwithstanding, else a decreet ought to be pronounced, because the pursuit was intented against Mr Patrick, the father, and was depending against him when he died; 2do, The rights craved to be reduced were not “hæreditas paterna”, the children having no right as heirs, but by a particular disposition, as likewise the mother, who was liferenter. The Lords did repel the defence, in respect of the reply, and found that where the action was intented and depending against a predecessor, it may be continued against the apparent heir, or heirs served, albeit they be minors; as likewise, that apparent heirs having a right by disposition, and not as heirs served and retoured, cannot crave the privllege of ‘non tenetur placitare, the subject not being ‘hæreditas paterna’, and far less the liferenter, whose right is quite different, and of another nature.

Fol. Dic. v. 1. p. 588. Gosford, MS. No 876. p. 131.