You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Marquis of Montrose and John Buchannan of Arnprior v Livingston of Kirkland. [1697] Mor 9046 (28 December 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor2209046-183.html Cite as:
[1697] Mor 9046
Marquis of Montrose and John Buchannan of Arnprior v. Livingston of Kirkland
Date: 28 December 1697 Case No. No 183.
A minor of 17 bought timber in conjunction with his father. In a reduction upon minority and lesion, the defender was assoizied, the reduction not having been executed intra annos utiles, and there having been homologation.
Click here to view a pdf copy of this documet : PDF Copy
It was anent a bond of L. 10,000 given by Kirkland and his father, as the price of a wood bought by them; of which bond young Kirkland raised a reduction upon minority and lesion, that he was then but 17, and his father's subscribing with him was no authorising him as a legal curator, but was in rem suam, and so ipso jure null, as was found M'Kenzie against Fairholm, No 23. p. 5639. & No 72. p. 8959. Answered, He can never reduce this deed on minority, because he was sufficiently authorised by his father, as administrator of law; neither is this like Sir George M'Kenzie's case, which was becoming cautioner for his father in a sum of money; but this is a bargain of trade, and in law minor mercaturam agens non restituitur. 2do, He has not revoked, at least has not raised his reduction intra annos utiles. 3tio, He has homologated the bond since his majority, by assigning the bargain of timber to one Smith. Replied, That this case needed no revocation, at least there was no necessity that reduction should be raised and execute thereon intra quadriennium utile; and as for the homologations, they never import where the deed can be ascribed to any other cause; and it was so found, Farquhar of Tonley contra Gordon, No 65. p. 5685.; where one's pursuing for relief of a debt did not debar him from quarrelling the bond; and sicklike, Moodie contra Macintosh, No 72. p. 5693.; the heritor's allowing the annualrents of a sum borrowed by him in his minority to his tenant, was found no such homologation of the bond, but that he might insit to have it reduced upon minority. The Lords sustained the answers, and assoilzied from the reduction upon minority, both in respect of the want of an executed reduction intra annos utiles, and on the homologations; and some of the Lords were clear on the first head, that he was sufficiently authorised.
Fol. Dic. v. 1. p. 586. Fountainhall, v. 1. p. 805.
