Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Ballantyne v. Sir Robert Dalziel of Glennae
Date: 4 December 1695
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December 4.—Arbruchel reported John Ballantyne, late in the King's Guard, against Sir Robert Dalziel of Glennae, anent the granting certification contra non producta in an improbation. Glennae's tutors pretended they ought to be reponed against the act obliging him to take terms, because he was minor, and had omitted material defences.
The Lords found, Though it had been an act of litiscontestation, as it was only an act for production of the writs called for in the reduction and improbation, a minor is not to be precluded of his lawful defences.
Whereupon he Alleged, 1mo. That the pursuer, not being infeft, he could force the defender to produce no real rights to him. Answered,—I produce my author's seasine, which is sufficient to sustain the title. The Lords remembered what they had done in Keith and Carbiston's case, and therefore refused process; especially seeing his author was dead, and so he could not insist in his name.
The second defence was, on the common brocard of law, minor non tenetur placitare super hœreditate paterna; and he offered to prove his author died not only infeft in thir lands, but likewise in possession. Answered,—This was good against taking a term in a reduction, but not in an improbation, where falsehood was concluded against the writs. Replied,—Whatever effect this may have against writs specially called for and libelled against, yet, quoad the general clause of all other writs called for, without specifying what they are, if certification could pass against minors for these, it would make them propale their whole charter-chests, the concealing whereof was the design of the law, and the brocard would stand them in no stead. See 31st January 1665, Kello against Pringle. The Lords, thinking it of importance, ordained it to be heard in presence, How far a general clause in an improbation could oblige a minor to produce, under the hazard of a certification contra non producta, to pass against him, if he did not.
Vol. I. Page 682.
December 19.—In the action at the instance of John Ballantyne, against Sir Robert Dalziel of Glennae, mentioned 4th current, a new allegeance was proponed for the pursuer, viz. That the minor could not have the benefit of the brocard unless he were served heir and infeft; and for this he urged the original statute out of Regiam Majestat. lib. 3, cap. 32; and a recent decision, marked by President Falconer, 20th November 1683, Fleming against Carstairs, where the Lords found an apparent heir not served had no right to propone this; and that Hope, in his Large Practicks, tit. de Minoribus, observed, that process of reduction and improbation was sustained at the Earl of Morton and Lotd Dalkeith's instance against Queen Mary, though then a minor. On the other side, the Lords called to mind that this privilege had been usually indulged to apparent heirs; and therefore deferred until they were more fully informed in the case.
