Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Margaret Smith, and Jamiesons, her Children, v. Forbes of Balflug
Date: 27 July 1697
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Margaret Smith, relict of Jamieson, and her Children, pursuing Forbes of Balflug for a spuilyie,—the Defence was, It is prescribed, quoad modumprobandi, by the Act of Parliament 1579, not being intented within three years after the committing. The Answer was,—The children are minors, against whom that prescription does not run. Replied,—The title, as executrix, is in the mother's person, who is major, and cannot stop the prescription. Duplied,—It is only nudum officium, and she is fidecommissaria, and trustee for the nearest of kin, the legatars and creditors; and so the bairns, jure sanguinis, having the natural right,—the personal privilege, That prescription runs not against them while minors, may very well be proponed by the mother ob connexitatem causœ, they being consortes ejusdem litis: and the mother is not domina bonorum mobilium; for, if she were denounced rebel, they would not fall under her escheat; as was found, 21 st December 1671, Gordon against Irving. Triplied,—The sole administration and jus exigendi is vested in her person; likeas, she has right to a third of the moveables jure proprio: and, if this were sustained, its consequences might go too far; seeing creditors have an interest in the executry of their debtors; and, posito that one of them were minor, would that afford a defence of minority to the executor?
The Lords, without deciding this nice point, and finding the mother had not yet given up inventory, but only taken out a decreet-dative with a license, allowed the confirmation to be carried on in the minor children's name.
