Dilatory defence. - If it must be instantly verified?
Kello v. Kinneir
Date: 24 February 1676 Case No. No 158.
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Alison Kello having pursued Alexander Kinneir for reduction of several rights of his fathers, he alleged, Minor non tenetur placitare super hæreditate paterna. It was answered, That this defence was but dilatory, and ought to be instantly verified.
The Lords repelled the allegeance, and found that a term ought to be granted to prove the defence.
Fol. Dic. v. 2. p. 189. Stair, v. 1. p. 422.*** Dirleton reports this case
In a pursuit against a minor, it was alleged, Quod non tenetur placitare, because minor; whereupon there did arise two questions, viz. 1mo, Whether the said exception, being a dilator, ought be verified instanter? As to which, it was found by the Lords, That minority being in fact, could not be verified instanter. 2do, It being replied, That the defender was major, which was offered to be proved; and a conjunct probation being desired by the defender; it was nevertheless found by the Lords, That the allegeance of minority being elided by the said reply of majority, which only was admitted, the pursuer ought to be allowed to prove his reply, without conjunct probation to the contrary. In præsentia.
Act. Sir David Falconer.Alt.—.Clerk, Hamilton.
Dirleton, No 349. p. 166.
