No Restitution till the other Party be restored. - Whether a Minor, who follows a Profession, can be restored?
James Craick v. John Maxwell
1682.
March. Case No. No 161.
Although the Lords would not reduce upon minority a decree, upon which a comprising had followed, and been disponed to a singular successor; yet they appointed the defender to refund to the minor so much as he would have saved, had he been restored in integrum against the decree.
Click here to view a pdf copy of this documet : PDF Copy
In a pursuit against a minor for his father's possession for several years, a probation by witnesses being led, the Lords having decerned for the several years pursued for, viz. the years 1663, 1664, 1665; and the decreet being assigned to the Lord Queensberry, there was a reduction raised upon minority and lesion, especially considering that the defunct died in 1662; the Lords of consent restricted the decreet to the year 1662, but would not reduce as to some other points, the cedent being sufficiently solvent, and the said cedent being now insisted against for repetition, in so far as he was lesed by the first decreet.
Alleged, That the decreet proceeding upon the advising of the depositions of witnesses, and upon compearance, it is not allowable to reconsider them.
Answered, Why may not the Lords re-consider witnesses as well as oaths and writs?
The Lords inclined to recommend it to one of their number to inspect the depositions, to see if there was a clear and obvious mistake of these and the interlocutor, and if it was so, they inclined to give some remedy, as they did in Bargeny's case contra Pinkell, (See Appendix.) and Elibabeth Pitillo contra Stark of Killermonth, (See Appendix.) where, in both cases, the decreet was turned into a libel, though both parties were major, and a new probation led.
November 1682.—Thereafter the pursuer having insisted for damages he sustained by that decreet which the Lords would not reduce upon minority, in respect a comprising had followed thereon, which was disponed to a singular successor for onerous causes before intenting of the reduction; and the defender was solvent;
The Lords decerned the defender to refund to the minor so much as be would have saved, had he been restored in integrum against the said decreet.
