[1705] Mor 421
Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.
Date: Patrick M'Dowall, Merchant in Edinburgh,
v.
Mr John Marshall
14 July 1705
Case No.No 59.
The Lords found a minor liable for an account of mournings, taken off by him for his brothers and sisters.
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In a pursuit before the bailies of Edinburgh, at the instance of Patrick M'Dowall, against Mr John Marshall, for payment of an account of mournings, furnished, by his order, to himself and his brother and sisters, at their father's death, extending to L.96 Scots; the bailies having found it relevant to make the defender liable, that the account was furnished by his order; or that his father delivered to him a sum of money for defraying the expence of the mournings; albeit the defender was minor when the goods were furnished, and lesed by engaging for them, and had raised reduction intra annos utiles: The defender brought the cause before the Lords, by advocation, upon this ground, That the bailies had committed iniquity; in so far as a minor's interposing himself for others to take off mournings for them is lesion; and it doth not alter the case, that he received money for that end from his father; seeing money given to a minor is understood to be given perdituro, unless it appear to have been in rem versam, profitably employed, or that be hath it still in his hand.
Answered: There was no iniquity committed; because, 1mo, Mr Marshall being at the full stature of a man, and graduate, it was not possible to know, by his aspect, that he was minor: And his inducing a merchant, by concealing his age, to trust him goods, could not profit him. Besides, he was in confinio majorennitatis, wanting only some months of being major at the time, 2do, He having taken off the mournings, the merchant was not bound to know whether he was to employ them for the younger children in familia with him, or for himself; no more than if he had taken off a suit of clothes to himself, and another to his servant; which could never have been interpreted lesion, though there were no obligation upon him to cloath his servant in blacks. And, 3tio, Albeit the pretence that money given to a minor is given perdituro, may hold in the general; yet there seems to be a specialty in this case, where the money was given by a dying father to his eldest son, to furnish mournings to himself and the younger
children, partly taken off before the burial, and partly within a day or two after, while the money could not possibly be misapplied. Replied: The allegeance, that the minor, by his aspect, looked to be major, deserves no answer. Nor was it ever sustained that a minor was in dolo for concealing his age, and not telling that he was minor; the legal exception being si majorem se dixerit, and not si minorem non dixerit. And it cannot be termed dole in a minor, not to tell that he was under age, when such a question was never put to him. 2do, It is contended, that one who deals with a minor, and furnishes him goods, is in law obliged to know for what and for whose use they are, otherwise he trusts upon his peril.
The Lords repelled the reason of advocation, in respect of the answers; and found the minor liable, though the furnishing was not made to himself, but to his brothers and sisters; and therefore remitted the cause. (See Minor.)
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