Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

William Home
v.
Dorothea Home

Date: 7 February 1632

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By contract of marriage between Samuel Home and Isabel Cranston,—William Home of Whitrig father to the said Samuel, and George and Robert Homes his two brothers, were bound to pay 2000 merks to the said Samuel and his wife, to be employed upon annual-rent to the behoof of them and their heirs. William Home, heir to this Samuel, got this contract registrat against Dorothea Home, heir to the said George his father's brother; and, having charged her, she suspended on this reason, That, by a decreet-arbitral pronounced betwixt the pursuer's father Samuel and umquhil Helen Home his mother, the foresaid contract of marriage was decerned to be delivered to the said Helen to be cancelled. Alleged, The decrect-arbitral was null, in respect that, there being only submitted all differences betwixt the said Samuel and Helen, there could be no more decerned than concerned themselves submitters: But so it is, that there was no difference betwixt them anent the payment of the said sum contained in the contract, Helen not being a party-contractor therein; But the truth was, that the said George, Samuel's elder brother, who was obliged, with his father and brother Robert, for payment of that 2000 merks, being chosen oversman in that submission betwixt Samuel and Helen; he himself after he had decerned anent the differences betwixt the parties submitters, did cast in, That, at the end of the decreet, that Samuel should deliver that contract to be cancelled. Replied, It, being a decreet standing, could not be taken away summarily, but behoved to abide reduction. The Lords found the decreet null by way of exception.

Next Alleged, The charger could not challenge it upon that nullity, because he had homologated it, in so far as he did enter to the possession of the mill of Old Aiton, as was decerned in that decreet, and also had paid to his mother nine bolls of malt yearly after that, as long as she lived; in respect whereof he had ratified the decreet, and could never impugn it after that. Answered, That homologation could not be extended further than to that which concerned the two submitters, neither could it import a liberation to the oversman of his obligement in that contract, which fell not within the compass of the submission. The Lords found this homologation not such a deed as might prejudge the charger to quarrel the decreet upon the ground foresaid.

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