Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. VIII.

Lesion in taking Legal Steps.

James Murray, Taylor in the Canongate,
v.
The Children of the deceased Patrick Chalmers, Beltmaker in Edinburgh

Date: 11 December 1705
Case No. No 132.

Minors reponed against a presumptive passive title, inferred from their procurators proponing for them peremptory defences, and failing in the probation.

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In the action at the instance of James Murray, taylor in the Canongate, against the Children of the deceased Patrick Chalmers, beltmaker in Edinburgh, the defenders being found liable for a debt of their father's, as subjected to the passive titles by their procurators proponing peremptory defences, and failing in the probation.—The Lords reponed them against the passive titles, in regard they were minors; because minors are not only restored de juri communi against contracts and obligations entered into by them when lesion appears, but even against judicial acts; Stair B. 1. T. 6 & 44. December 1. 1638, Steuart contra Steuart, No 138. p. 9008.; February 14. 1677, Duke and Dutchess of Buccleuch against The Earl of Tweeddale, No 8. p. 2369.

Fol. Dic. v. 1. p. 582. Forbes, p. 52. *** Fountainhall reports this case:

James Murray, taylor in the Canongate, against the Children of Patrick Chalmers, beltmaker in Edinburgh, and his relict. Patrick being debtor to the said James in L. 100 Sterling by bond, he pursues his relict and children on the passive titles, for payment; there is compearance made for them by an advocate, who propones, 1mo, Payment of a part of the sum; 2do, Compensation by an account which James owed Patrick, which is referred to Murray's oath, who compears and depones negative; and when he is taking out his decreet for the remanent sum, there is a bill given in, craving to be reponed against the passive titles, which they now deny, and were not proven. Answered, You proponed peremptors, and produced a discharge of a part of the debt, which shews your intromission with your father's papers, which is a clear passive title, and likewise referred an allegeance to my oath, whereon I have deponed, so you cannot recur now to deny the passive titles. Replied for the Bairns, They were minors; and, as they would be reponed against a clear bond, so multo magis against a judicial act to their lesion, that being only their advocate's deed, and his error and mistake cannot bind them; as was found 1st December 1638, Stewart, No 138. p. 9008.; and 14th February 1677, D. of Buccleuch, No 8. p. 2369.; and as to the relict, the compearance was promiscuous, and more for the bairns than her; and there is no act as yet extracted in the cause, so there is still room for her denying the passive titles. Duplied, Her second husband was present at Murray's examination, and put interrogatories to him, and so was not ignorant.—The Lords reponed the children being minors, but not the widow, nor her second husband.

Fountainhall, v. 2. p. 299.