Competent and omitted is not a proponable objection against a minor.
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I reported Elizabeth Lagie, relict of Andrew Ker, in Lithgow, against William Ker, her husband's brother's son, on a decreet in foro, whereby the Lords found him debtor in L. 658 to her husband, and ordained her to have the liferent of it. His reason of suspension was, that it was obtained against him when minor, and though the Lords had justly found that he had the foresaid sum in his hands, according to what was then pleaded, yet he was lesed by omitting this reply, that, prior to that, his father and uncle had competed together for Bonhard's money, as appears by the discharge now produced, granted by Andrew, the pursuer's husband to Bonhard, and so he had neither funds nor effects then in his hand; which, if then proponed, would have assoilzied him, and is receivable now, he being minor. Answered, 1mo, It is res judicata, which must bind minors as well as others, especially where it has been fully and maturely heard; 2do, By a back-bond, granted by William Ker, the suspender's father, subsequent to the precepts he accepted, and also to the receipts he had given to Bonhard, and to Andrew's discharge, he obliges himself to count for the debts assigned to him, in so far as he shall intromit or recover them, with exception only of L. 20 Scots yearly, as an aliment to a natural child of the said Andrew's; which the Lords found only payable till the age of 16; for, after that, they may go to service; and seeing these precepts were not reserved, exceptio firmat regulam in casibus non exceptis: and if he had not had effects to pay them, he would have much rather mentioned them than the lesser sum of L. 20 Scots. Replied, That decreets in foro ought to be inviolable and sacred even against minors, where defences distinctly proponed are repelled; but competent and omitted can never be obtruded against minors, especially where the allegeance consists in facto, and is now instantly verified, as was lately found betwixt the Countess of Kincardine and Purves of that 11k, No 145. p. 9016; and had been oft decided before; 1st December 1638, Stuart against Stuart, No 138. p. 9008; Hope, tit. Universal and Lucrative Successors; and 14th Feb. 1677, Duke and Dutchess of Buccleugh against the Earl of Tweeddale, No 8. p. 2369. And the Lords, in the case of Cochran of Kilmaronock against the Marquis of Montrose (See Appendix), did lately refuse to repone the Marquis, though minor. There it was no new defence, but only farther illustrated from new topics in jure, and was contained in the decreet, and there repelled. The Lords reponed Ker against this decreet; and found competent and omitted could not be obtruded against a minor, especially where the defence consisted in facto, as here: And, as to the allegeance itself, whether William had then effects of his brother Andrew's in his hands, or if it was elided by William's back-bond produced, the Lords were equally divided, so that it came to the President's vote; but there being several non liquets, they got till next day to clear themselves, who accordingly sustained the suspender's emergent reply; and so he gained the point.
Fol. Dic. v. 1. p. 582. Fountainhall, v. 1. p. 74.
