Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. III.
No privilege where the process is founded upon the predecessor's deed. - Nor where action was commenced against the defunct. - Nor where the Minor is the first provoker.
The Bishop of Dunkeld v. The Laird of Aberlady and his Tutors
1682.
December. Case No. No 49.
When the minor is the first provoker, he has no privilege.
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The Laird of Aberlady having got a right to the patronage of a church, which was anciently a patrimonial church of the bishoprick of Dunkeld, and resigned in the King's hand in the year 1595, in favour of Aberlady's authors, and contained in his several rights and infeftments from the King; the now Bishop of the diocese raised reduction of the said right of patronage, as being a dilapidation of the patrimony of his church.
Alleged for the defender, That he is minor; and therefore non tenetur placitare.
Answered; Minors are only privileged for answering in reductions of rights of lands and property, King William's statute, cap. 39. Regiam Majest. lib. 3. cap. 32. No 17. And the subject of the present reduction, is but a patronage, which is but an inconsiderable right, and not profitable. 2. The defender first provoked to judgment, by raising process for declaring that the pursuer ought to collate the person whom the defender had presented to be minister.
"The Lords found, that the defender tenetur placitare in this case, in respect he was the first provoker; and that although the title of his declarator was only founded on his last infeftment from the King, he ought to defend the first right proceeding from the Bishop, seeing all posterior rights were but consequential thereof.
