Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. I.
In what cases the privilege competent.
Guthrie v. The Laird of Guthrie
Date: 27 November 1678 Case No. No 16.
The maxim minor non tenetur placitare, was found not competent where the minor's right was only an apprising, at his father's instance, on which his father was never infeft.
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James Guthrie having pursued reduction and improbation of the right of some lands, against the Laird of Guthrie, he did allege against the production, that minor non tenetur placitare, which was repelled, and reserved to the discussing of the reasons of reduction; and being now repeated, the pursuer alleged that the defender could not plead this privilege, because all he founded upon was an apprising, which is, always accounted as if it were a personal right, which may be taken away by exception upon payment, satisfaction by intromission, or compensation, much more in this case where there is not so, much as an infeftment alleged in the defender's father's person, and therefore he not dying in tenemento, his heirs cannot be disprivileged, for heretage in that maxim is understood only of that which is properly so called, being jure soli but is not extended to heretable rights by destination, as heretable bonds or dispositions without infeftment.
The Lords repelled the defence, in respect the defunct died not in tenemento, for there was only alleged an apprising without infeftment; but had not the occasion to determine, whether an apprising with infeftment could plead that privilege.
Fol. Dic. v. 1. p. 588. Stair, v. 2. p. 647.*** Fountainhall reports the same case:
1678. November 8.—This day the actions between Guthries and the Laird of Guthrie came to be advised. The Lords having first advised the action of mails and duties, and the probation of Guthrie's defence upon the possessory judgment of seven years, by virtue of a real right of a comprising standing unreduced, and the sasine and depositions of the witnesses adduced for proving thereof, “they found the allegeance sufficiently proven thereby, and therefore assoilzied the defender from the hail points of the said libel.” Then the Lords having called the reduction, the pursuer insisted on this reason, that the comprising was null, because no right was instructed in the person of him against whom the comprising was led. And as this reason was relevant, so it was also true; for by mistake they had apprised lands, whereof he had only right to dispone by virtue of a factory from one that was then out of the country. But the reason was elided by this reply, that the defender Guthrie being then minor, non tenebatur placitare super hæreditate paterna; which was sustained to stop process, but will not defend against production in an improbation.
