No Restitution till the other Party be restored. - Whether a Minor, who follows a Profession, can be restored?
Thomas Dundas, Merchant, and one of the Bailies of Edinburgh, v. John Allan, Writer there
Date: 17 January 1711 Case No. No 166.
A bill accepted by a minor without consent of his father, his administrator-in-law, for merchant goods sold to another, found reducible upon minority and lesion, altho' the sum was small, and the acceptor was a writer doing business for others, and paid part of it during his minority.
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Bailie Dundas having obtained a decreet before the Bailies of Edinburgh, against John Allan, for L. 34:12s., as the remains of L. 47:5:6 Scots, contained in a bill accepted by him, payable to the Bailie, John Allan suspended and raised reduction upon minority and lesion, in so far as the bill was accepted by him when minor, without consent of his father, his administrator of law, as a cautionary security for the price of goods furnished not to himself, but to the Lady Cousland.
Answered for the charger, The reason of suspension and reduction ought to be repelled; Because, 1mo, The subject of this debate is so very small, that no such lesion could thence arise, as deserves the extraordinary remedy of restitution ex capite minorennitatis, which must be enorm, February 14. 1677, the Duchess of Buccleugh contra Earl of Tweeddale, No 8. p. 2369. For prætor non curat de minimis, and such an extraordinary cure is not to be applied to every trifling case. 2do, The suspender was a writer versant in business, and so presumed more capable to deceive, than to be deceived. 3tio, The suspender entered in payment after he was forisfamiliated by being married, and living separately from his father; which by the civil law, was such an homologation as obliged one to pay debt contracted by him while in familia paterna, notwithstanding of Senatus-consultum Macedonianum L. 7. § 13. et ult. D. Ad Senatus-consultum Maced.
Duplied for the suspender, 1 mo, The smallness of the debt cannot influence the decision, seeing quality, and not the quantity, of the debt is to be considered; and what may seem a small matter to one, may be considerable to another. 2do, Whatever might be pretended, had the suspenders engagement been in the business of his employment as a writer, yet his undertaking a cautionry for the price of merchandise sold to another, was palpable lesion. And so anxious have the Lords been to secure minors from prejudice by rash cautionry, that a bond signed by a minor as cautioner, and his father as principal, was and afterwards proved en eminent lawyer, December 7.1666, Mackenzie contra Fairholm, No. 72. p. 8959; July 25. 1667, p. 8960. Nor, 3tio, Can the suspender's paying part of the sum charged for be any homologation to fix him, since the partial payment was made during his minority; and he is entitled to repetition condictione indebiti. Law doth not distinguish between minors married and unmarried, seeing marriage doth not always bring prudence along. And if the suspender be forisfamiliated, he is so without a portion, having got nothing to this day from his father, as a separate mean of sub-sistence by himself.
The Lords sustained the reason of reduction upon minority and lesion.
