Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Minors incurring Passive Titles
Date: 3 November 1677
Click here to view a pdf copy of this documet : PDF Copy
A minor is convened upon the passive titles, to pay a debt owing by his father, and in the relevancy and probation it is condescended on, that his tutor intromited with the maills and duties of the minor's father's lands, and applied them to the minor's behoof; which must infer gestionem pro hærede upon the minor.
Alleged,—Non relevat; for tutors and other administrators meliorem possunt facere pupilli conditionem sed non deteriorem, and it were hard that their deeds should bind an odious passive title upon an apparent heir, not being his own deed, though it be converted to his utility; since id intelligere non presumitur, unless he were infeft in those lands; and the most he can be made liable in, is allenarly in quantum minor locupletior factus est, or to restore what he so intromited with.
Answered,—That a pupil or minor acting with his tutor or curator's advice, that so redintegrates his person, and supplies the defect and imbecility the law presumes in him, that minorem representat majorem; else creditors might be disappointed of their payment where the apparent heir was minor. Neither would this anyway evacuate the privilege of minority; for though the tutor's intromission was actus injure validus to import a passive title, yet if the minor found himself lesed, he might revoke and be restored against it in integrum.
Craigie went a greater length than was needful, for he thought even a protutor's intromission would bind a passive title on the pupil; but this is scarce consonant to the analogy of law.
