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Scottish Court of Session Decisions >>
Robert Keill v John Seaton. [1665] Mor 2732 (28 June 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor0702732-064.html Cite as:
[1665] Mor 2732
Minority and lesion is not competent by way of suspension or exception, but by way of action of reduction.
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George Seaton as principal, and the said John Seaton his cautioner, having granted bond to Robert Keill, and being charged thereupon, both did suspend, and having alleged payment, they succumbed, and were decerned. John suspends again, and raises reduction upon minority and lesion. The charger answered, 1st, That this reason was competent and omitted in the former decreet. 2dly, That proponing payment, did homologate the debt, as if an heir proponed payment, he would not be admitted to renounce thereafter, or to deny the passive title. The suspender answered, That the former process being in a suspension, nothing was competent but what was instantly verified, and so minority and lesion was not competent. The charger answered, That the decreet of registration was turned into a libel, as being registrate at the assignee's instance, not having intimate during the cedent's life, and at that time the suspender had raised his reduction, and so it was competent. The suspender answered, That he was not obliged to insist in his reduction, and that the reasons thereof were not proper, even in an ordinary action, but only by a reduction. It was further alleged, that competent and omitted, took no place in suspensions.
The Lords had no regard to the last allegeance, but repelled the allegeance upon homologation, and upon competent and omitted, in respect that minority and lesion is neither competent by way of suspension nor exception, but by way of action of reduction, wherein the suspender was not obliged to insist.
