Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. VII.

Lesion in extrajudicial proceedings.

Hume
v.
Riddel

Date: 3 March 1035
Case No. No 111.

A minor is presumed to be lesed, which need not be proved in limine of reduction; nor is it necessary that, before litiscontestation, the minor produce a right to the property, which is to be subject of the action.

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One Hume of Ogstoun having comprised the lands of Ogstoun to himself and his wife in liferent, and to John Hume, their son, in fee, and thereupon infeftment being expeded; thereafter, these lands are sold by the son, with consent of his father and curators to him, he being then minor, to Walter Riddel; whereupon the son pursues reduction against the said Riddel, and restitution against the said infeftment, as done in his minority, to his great and enorme prejudice and lesion. The defender alleged, That no process ought to be granted at the pursuer's instance, except he shew and produced his title, which might give him interest to pursue this cause; for except he produce his infeftment, whereby he had right, and was infeft in the lands libelled, he can have no interest to pursue; and the pursuer answering, that he was not holden to produce any more right now in ingressu litis, seeing he shall produce his right cum processu; for the reason was founded thereupon, and it was medium concludendi, which he was not holden to produce before litiscontestation; likeas he could not produce the same, seeing the whole writs of the lands, and his writs were in the excipient's own hands, being delivered to him by the curators, the time of the alienation made to the defender, and which he refers to his oath; likeas he has process against him for exhibition of the said writs depending before the Lords; for this action tends only to restore him against that deed done by himself, and if he have no right, the defender cannot be prejudged by this pursuit; the Lords, notwithstanding of this reply, (which was not respected) found no process, while the pursuer shewed and produced some right in his person made to him of the lands libelled; and therefore ordained the same to be produced before he insisted more in this reduction, or else primo loco that he should discuss his action of exhibition, which was thereafter justly altered.

March 21.—In the action betwixt Hume of Ogstoun and Riddel, mentioned March 19. 1635, the Lords changed that decision, and found, that the pursuer could not in law be holden to produce any right to the lands in ingressu litis; and therefore found process, notwithstanding that he produced not any such right; for if a minor had disponed another party's lands, whereto he had no right himself, process could never have been refused to him for not shewing that he had some right to that land; no more ought it to be in this case, where the disposition made by himself to this defender was only desired to be reduced, and any right in consequence, depending upon that disposition; and that disposition being produced, there was enough produced to sustain the action at the minor's instance; for the proposition is good, and is founded in law, minor læsus est restituendus, and the assumption being relevant subsumed thereupon, that the pursuer is minor and hurt, needs not to be instructed nor verified before litiscontestation, that the same be admitted to probation, and then he may prove it. Partibus ut illic comparentibus.

Act. Craig. Alt. —. Clerk, Gibson. Durie, p. 762.-763.