Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. IX.

Lesion in Legal Proceedings.

Countess of Kincardine
v.
William Purves

Date: 7 January 1698
Case No. No 145.

A minor craved restitution against a decree in foro, alleging iniquity in the interlocutors. Not reponed against defences, proponed and repelled, but the decree opened as to objections omitted either in fact or law.

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The Countess obtained a decreet against him in foro, on the passive titles, as representing Sir William, his granfather, for intromission with sundry wards and marriages, whereof the Earl of Kincardine, her husband, had a gift. Purveshall insisted on this reason of reduction, that I was minor indefensus, my curators not being legally cited, and though Advocates compeared and debated, for me, and interlocutors in jure passed thereon, yet I was lesed, and the decreet on that nullity must be open in toto, being before the late regulations, declaring nullities of decreets shall operate no farther than to redress the prejudice; and this must be a total nullity; for, though a minor compear by his procurators, yet if his curators be neither called, nor compearing, he is truly on the matter absent, they being absolutely necessary not only for advice and direction, but also ad integrandam minoris personam; and Dirleton, voce Minor. p. 126 shews, in such cases, minor non habet personam standi in judicio, et sententia contra eos indefensos lata, est ipso jure nulla. Answered, 1mo, He was not indefensus, for he compeared by Advocates, and debated, and received interlocutors in jure on the several points; likeas his father and uncles were cited, who were his curators; only the execution is in some particulars informal; and whatever effect this may have to repone a minor against omissions, yet it can never annul the interlocutors in jure. Replied, Though his friends were called, yet it was not curatorio nomine, but for debts owing by themselves proprio nomine, so the minor must be restored not only to defences competent and omitted by him, whether they consist in facts or in jure, but likewise must be heard as to all the allegeances proponed and repelled, as if they had not been repelled. The Lords though this would be a dangerous extension of the privilege of minority, if he were allowed to quarrel the interlocutors on iniquity; and that they had lately refused this in the case of Cochran and the Marquis of Montrose, since the Revolution (See Appendix); therefore the Lords, by plurality, found the informal citation of the tutors and curators was not a total nullity, opening and loosing the hail interlocutors in the decreet, which proceeded on debate, but only reponed the minor to defences omitted either in facto or in jure.

Fol. Dic. v. 1. p. 584. Fountainhall, v. 1. p. 810.