Scottish Court of Session Decisions

Subject_1 MINOR.

CREDITORS of KENMINNITY
v.
The HEIR

Date: 11 May 1749
Case No. No. 12.

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DECREETS of constitution and adjudication being obtained against a minor apparent-heir for not renouncing, adjudging inter alia an estate wherein his father never was entered, but was apparent-heir, and possessed more than three years; and the minor pursuing reduction and producing a renunciation, Lord Justice Clerk (Tinwald) sustained the adjudication as to those lands, whereof the father had been in possession three years, because of the act 1695, whereby the minor could not pass by him and serve to a remoter predecessor without incurring the passive title, but not as to lands not possessed by him but by a liferentrix; but on a reclaiming bill we altered and restored him against the constitutions, and sustained them only as decreets eognitionis causa, 24th November 1748. But this was reversed in Parliament, and the Ordinary's interlocutor affirmed; and Lord Advocate told me, it was upon the general point that when the last apparent–heir, the debtor, was three years in possession, the next apparent–heir is liable in the same manner as if the debtor had been infeft if he possesses, whether he passes him by and serves to a remoter predecessor or not; and that the Lords meant to extend the act 1695 farther than we thought we could do, and farther than we did in the cases of Lord Banff, &c. Vide PASSIVE TITLE.

Whether by the act 1617 minority must be deducted out of the positive prescription as well as the negative ? long argued but not decided, the Court being much divided, in the case of Elliot against Elliot, 10th November 1749, voce PRESCRIPTION.