Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. IX.
With what Modifications Bona Fide Consumption Saves from Repetition.
Falconer of Kincorth v. Kinnier
Date: 9 December 1684 Case No. No 46.
The Lords found a comprising extinct within the legal, but retained a minor in the possession; quia minor non tenetur, &c. Being pursued after majority for bygones, he was held to be a bona fide possessor.
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——Falconer of Kincorth's case contra Kinnier is advised. It was alleged against a comprising led in 1622, that it was satisfied and paid by intromission within the legal; and probation being led thereon, by virtue of a commission to Mr James Inglis in 1673, and the same advised, the Lords found the comprising proven to be extinct by satisfaction; but, in regard it was alleged then that Kinnier was minor, they stopped to put him out of possession, because of the maxim quod minor non tenetur placitare super hæreditate paterna; but ordained him to find caution for the superplus more than paid him, if there should be any. He being now major, raises a reduction of that report, on this reason, that the depositions do not bear that the witnesses were examined by these formal words, ‘As they shall answer to God.’ And though they be subscribed by the judge, yet they are not signed by the witnesses; nor does the report bear that they could not write. Answered, These, are not nullities, and the probation is already advised; and the witnesses are all since dead, and so it cannot be loosed now——The Lords adhered to the said report, and would not loose the depositions now after so long a time, and that the mean of probation was perished. See Witness.
The next question was, if he was bonæ fidei possessor quoad the bygone rents? The Lords inclined to find him so, because of the brocard non placitare tenetur; yet he was alleged to be in mala fide, because of the caution he was put under.
Fol. Dic. v. 1. p. 110. Fountainhall, v. 1. p. 318.
