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.
Drumquhasil v. Cunningham
Date: 7 January 1693 Case No. No 39.
Found in conformity with the Queen's Advocate against Wemyss, No 32. p. 9089.
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The Laird of Drumquhasil pursued his brother, the Priest of Dumbarton, and Cunningham, heir of umquhile John Cunningham of Clanady, to produce atack of the teinds of the kirk of ——, set by the Abbot of Kilwinning to the said umquhile John Cunningham, and the assignation alleged made to the said Priest, of the date of ——, together with whatsoever other tack or tacks set to them or any of them, of the said teinds by the said Abbot, to hear and see the same improven with certification, &c. It was alleged, That no certification could be granted upon the general clause anent whatsomever other tacks; because nothing could be improven for non-production, but that which is called for. Notwithstanding of the which allegeance, the Lords found that the pursuer calling for a particular tack, of a special date and tenor in all substantial points, the desire of his summons was always relevant anent the general clause of all other tacks, because it contained the special designation of the person setter, of the receiver and of the teinds. Farther, it was alleged, That there could be no action given against this defender, Cunningham of Clinglie, because he was minor et non tenebatur placitare. Which allegeance was repelled, because minors have no privilege in improbations, especially cum agitur de facto vel dolo paterno.
