Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Earl of Southesk
v.
Philiphaugh

Date: 11 January 1670

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Philiphaugh's father having a wadset of the lands of Dryhope, whereof the Earl of Traquair had the reversion, and did redeem the said lands, by payment of 8000 merks to Philiphaugh's factor and curator; which was acknowledged by a fitted account with Philiphaugh's tutors and his goodsire, who did grant a renunciation thereof; as likewise by a discharge, to the factor, of all his intromissions, and particularly of the sum of that wadset, which thereafter he did ratify when he was major. Notwithstanding whereof, that wadset being comprised from Philiphaugh, and the compriser pursuing for the mails and duties; the Earl of Southesk, as having right to these lands from Traquair, did intent action against Philiphaugh for warranting the wadset lands against the comprising, by refunding and paying back the monies paid to his factor for redemption thereof.

It was alleged for the defender, That the fitted accounts and discharge granted by him in his minority, and the renunciation granted by his goodsire, who was not his tutor, could not prejudice him; and as to the ratification when he was major, it was done before he understood his affairs: neither did ever the factor instruct, nor can it yet be instructed, that the sum of the wadset was profitably employed for his use, for payment of his debts.

The Lords having examined the factor, Mr John Lawson, upon his oath, and his count books, whereby it was cleared, that the money was employed for payment of Philiphaugh's creditors; and that his goodsire, and the Lord Dury, and other friends, who were most intelligent men, had subscribed the account; they found, after so long time, the Earl of Southesk, or the Earl of Traquair, his author, were not obliged to produce these instructions, but that it was sufficient that Philiphaugh, in his majority, had ratified the factor's discharge of his intromissions with that sum; but reserved action against the factor himself, and his heirs, as accords.

Page 90.