A minor was not reponed against a material defence, omitted by his procurator.
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Richard Oakley, merchant in London, having furnished some merchant-ware to Robert Telfer, he took his bond for L. 50 Sterling, as the price; and distressing him for it, James Telfer of Haircleugh, his brother, in December 1679, writes a letter to the said Mr Oakley, entreating him to forbear distressing his brother Robert till Whitsunday, and he formally engages to pay him at that term. On this letter he forbore him; and both Robert and James Telfers dying within a year or two after this, without paying the debt, Richard Oakley raises a pursuit against James Telfer of Haircleugh, as heir to his father, and as lawfully charged, and founds on his father's letter; and in 1682 obtains a decreet against him in foro contradictorio, wherein there is compearance and sundry defences proponed; and thereon leads an adjudication. Of this decreet, and the diligence following thereon, Haircleugh raises a reduction, and insists on these reasons, that he was the time of obtaining the said decreet, in 1682, a minor, and truly upon the matter indefensus; for though several defences were proponed, yet the material objection was omitted, that the letter founded on was not probative, being neither holograph, nor mentioning writer's name nor witnesses, and so null of the law; and though competent and omitted be not regularly admitted, as receivable against decreets in foro, yet it can never be obtruded against him, an infant at the time, and who now propones the same. And, by the common law, tit. C. Adversus rem judicat. minors are sometimes restored against judicial sentences. Answered, Though the privileges of minority be very great, yet they are not such as to restore minors to obvious allegeances, which, if they had been true, could not have been omitted; but they had not the confidence to deny the verity of the letter at that time; and now it ought not to be received, when so long a course of time as 22 years has made such an alteration in prejudice of the party with whom they have to do, as what was easy to adminiculate and astruct them of being his hand-writing, is next to impossible now, all the parties being dead; and if you have, by your delay, deprived me of that probation, you ought to reap no benefit thereby, seeing if you had quarrelled it then, I would have infallibly proved it; and minors may be reponed in points of fact, but not in jure, as was found since the Revolution, betwixt Cochran of Kilmaronock and the Marquis of Montrose (See Appendix), and the Lady Kincardine against Purveshall, No. 145. p. 9016; 2do, There is no necessity for these solemnities in this case; for, though Haircleugh was no merchant, yet his brother Robert, and Oakley, with whom he contracted, were, and the subject-matter was trading and merchant-ware; so that such missives need neither be holograph nor have witnesses. Replied, As soon as he came to understand his business, he insisted vigorously in his reduction; and this is neither res mercatoria nor inter mercatores. It is true, bills of exchange are regulated jure gentium, and are dispensed with as to these solemnities; but this letter is not of that kind, but a mere fidejussory obligation; and cautioners in law are very favourable. Duplied, That the principal party's employment, and the subject-matter determined, if it was res mercatoria; and even a minor merchandising, giving bond for ware, will not be reponed: And here he is not so much cautioner as expromissor, and taking the debt upon him in constituta pecunia. The Lords repelled the reasons of reduction, and adhered to the decreet in foro, and refused to repone the minor in this case.
Fol. Dic. v. 1. p. 583. Fountainhall, v. 2. p. 260.
