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Sir Alexander Purves of Purveshall, and His Son, v The Lady Kincarden. [1696] 4 Brn 307 (6 February 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040307-0666.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Alexander Purves of Purveshall, and His Son, v. The Lady Kincarden
Date: 6 February 1696
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Arniston reported the reduction pursued by Sir Alexander Purves of Purveshall, and his Son, against the Lady Kincarden, of a decreet obtained against them for £18,000 Scots, as the intromission which Sir William, his father, had with sundry ward, marriages, and other casualties, whereof the Earl of Kincarden had a gift.
The Lords would not go upon that ground which was urged, That minors were restored contra rem judicatam, though there be a title in Justinian's Code, adversus rem judicatam, to that purpose; for they had found, in the Marquis of Montrose's case against Cochran of Kilmaronock, that minority did not repone against a sentence in foro, especially when the point was injure: But the Lords found several grounds here to open the Lady's decreet to this effect, that the minor might be heard upon the articles of his lesion; seeing his tutors and curators were not called, nor the passive titles proven; and several other grounds. Many lawyers lay down this as a conclusion, Minorera restituendum contra probationes omissas; but this carries its own difficulties with it, as it was argued betwixt Sir John Hay of Muiry and Gray of Begerno and Poury.
