Scottish Court of Session Decisions

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

The Lord Renton
v.
The Earl of Home

Date: 14 July 1670

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In a declarator, at Renton's instance, against the Earl, to hear and see it found, that his right to a contract, in anno 1631, betwixt James, Earl of Home, and John and Francis Stewart, whereby the Earl was to possess the estate of Coldinham in satisfaction of £19,220, which was due for arrears of £4000 sterling, contained in a prior contract, which was extinct; in so far as the Earl had entered to the said estate, upon a decreet, in anno 1643, and had ever bruiked the rent since; which would extend to more than the foresaid sum:

It was alleged for the Earl, That, the time of his entry, lie had right from the heirs of line of the Earl of Home to another contract, and a decreet in anno 1630, ordaining the said James, Earl of Home, to be put in possession of the said lands, for the annualrent of £1000 sterling, fructibus in horreum non computandis; and that in law he might ascribe his possession to that decreet,—it being the more ancient right; and it being in his option to ascribe his possession to any of the two rights he pleased.

The Lords did, notwithstanding, find, That he could only ascribe his possession to the decreet in anno 1643; and that in respect that the first decreet, in anno 1631, was never settled in his person by transferring, either at his own instance, or at the heirs of line, who were his authors: But, withal, the Lords declared, that the pursuer having forced the Earl to ascribe his possession to that decreet, he should never be heard thereafter to quarrel the same by way of reduction or declarator.

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