Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

The Earl of Marchmont
v.
Mr James Home of Aytoun.

Date: 5 February 1714

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In the action of mails and duties, at the instance of the Earl of Marchmont against Home of Aytoun, mentioned supra, 8th December, 1713 ; the defender alleged now, that no process could be sustained upon the pursuer's adjudication; in regard the debt which was the ground thereof, was contracted before the defender's father (whom he the defender doth noway represent,) was Laird of Aytoun. 2. The adjudication was led after he had lost the estate of Aytoun, by assuming the title of Earl of Home, upon which irritancy the defender stands retoured and infeft as heir to Mrs. Jean Home; so that the adjudication can no more affect the lands of Aytoun than if the Earl of Home had disponed them, or lands belonging to a third party had been adjudged from him.

Answered for the pursuer,—1. If an heir of entail, not tied up from contracting debt, de facto enter and be infeft, the estate is affectable for his debts contracted before as well as since his entry; though something might be said against burdening the estate for debts contracted by the heir, after he was denuded, and his right declared to be irritated and void. 2. Though the adjudication was led after the defender's father had assumed the title of Earl of Home, yet it was before the defender's retour as heir to Mrs. Jean Home, upon the irritancy incurred by his father; at which time there was no other proper contradictor against whom the creditor could adjudge but the Earl, who then stood infeft and in possession.

The Lords repelled the defence, and sustained the adjudication.

MS. page 23.