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Scottish Court of Session Decisions >>
Sir Patrick Home v The Earl of Home. [1700] 4 Brn 495 (25 July 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Brn040495-0945.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Sir Patrick Home v. The Earl of Home
Date: 25 July 1700
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In the pursuit, Sir Patrick Home, advocate, against the Earl of Home, for proving that the Earl was paid of all sums due to him on the Abbacy of Coldingham, by intromission with the lands and teinds of the said lordship; and, after a long count and reckoning, the Earl at last alleging he was not accountable, because his right bore an express clause, fructibus in sortem non computandis; and Sir Patrick contending, that that was an usurious paction, contrary to law; the Lords sustained the contract, and found the Earl's right unaccountable till redemption. Then Sir Patrick offered to prove his sums paid aliunde, as by the price of the teinds of Stitchel, Auldcambus, &c. The Lords found the documents adduced not sufficient to prove these. Thereafter the Earl having extracted his decreet-absolvitor, and Sir Patrick complaining of the precipitation used therein, after he had craved a scroll; and this being tried, the Lords found the decreet was delivered to the Earl before any scroll was sought; and so, refusing to recal the decreet, Sir Patrick gave in his protestation for remeid of law to the Parliament.
