Scottish Court of Session Decisions

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

Mr William Robertson
v.
Campbell of Kilpount

Date: 24 June 1670

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The said Mr Archibald Campbell being pursued at Robertson's instance, as cautioner, in a contract of wadset, for the Master of Gray, for 50,000 merks, in case of requisition; in which wadset there was a clause,—that if he should continue in possession of the lands, that the principal and cautioner should be free of annualrent: the said Mr William having desisted to possess, and suffered the Laird of Philorth to enter into the possession, who had required a right of reversion, did pursue for the principal sum due by the requisition, and for five years' annualrent, that he had been out of the possession:

It was alleged, That the pursuer having continued in possession after the requisition, and thereafter having desisted, without any decreet gotten against him at Philorth's instance, he could not pursue for payment.

It was replied, That, by the foresaid clause of wadset, it was in the pursuer's option to possess or not possess, as he pleased; so that he might desist, and seek the annualrent of his money.

The Lords did sustain the pursuit for the principal sum and annualrent in time coming; the pursuer denuding himself of the right of wadset, in favour of the defender, who was only cautioner. But as to the years that he had suffered Philorth to possess, the defender was assoilyied; seeing he had never used an order of redemption, but had possessed, by the pursuer's tolerance or right.

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