[A1706/10/35]¹

[Minutes in the process of Sir Patrick Home of Renton against Alexander Home, earl of Home]

Minutes, Sir Patrick Home [of Renton] against [Alexander Home], earl of Home

Pursuers, Senators Grant and Graham

On the other side, Senator Dalrymple and Nasmith

Home repeats his libel, being a summons before the parliament on a protest for remedy of law for reducing a decreet obtained before the lords of session on 25 June 1700 at the instance of the earl of Home against him, and alleged that [Francis Stewart], earl of Bothwell, having right to the abbacy of Coldingham, conveyed the same to his son, John Stewart, Sir Patrick's grandfather, and being afterwards forfeited in the year 1592, the earl of Home obtained a gift of his forfeiture, but that the right to John Stewart, being before committing the crime for which his father was forfeited, he, the said John, in 1621 was restored by way of justice and obtained a new erection of the lordship of Coldingham. That afterwards John Stewart and his friends, by a contract between them and the earl of Home in the year 1621, and renewed in the 1623, was by the interposition of King James obliged to pay to the said earl £4,000 sterling and to give an infeftment of annualrent of £300 sterling yearly to him and the male heirs of his body as a composition for the said forfeiture. That the earl having accepted of his own teinds of Old Cambus for £100 sterling of the annuity and the other £200 being unpaid from 1621 to 1629, he obtained a decreet of poinding the ground for these eight years, which occasioned a second contract in the year 1631, by which John Stewart and his friends were obliged to pay to the earl the extent of the said eight years' annuity, being £19,200, in June 1632, or otherwise to enter him to the possession of the said estate of Coldingham, with this provision: that the rents of the estate to be received should not be accounted in payment of the sum, but only for the annualrents of the same and for the said £200 of current annuity, and the earl was to renounce his possession and all right he had by virtue of that contract so soon as he was paid of that sum, without prejudice of his infeftment and right of annuity aforesaid. That this earl of Home's grandfather, as having right from the heirs of line of the earl of Home, the contractor having in 1643, after ceasing of the annuity by the contractor's death without male heirs, obtained a decreet of possession of the estate on the said contract last above-mentioned, he and his heirs have ever since possessed the whole for that small sum of £19,200, and that therefore Sir Patrick, as having right by progress from the said John Stewart, his grandfather, and Francis Stewart, his grand-uncle, to whom John had conveyed the estate, pursued before the lords against the earl of Home an account and reckoning concluding a declarator that the £19,200 was satisfied and paid by intromission with the rents, in which process the lords, by interlocutor dated 26 January 1699, found that the earl's possession by virtue of the contract of 1631 could not make him accountable after ceasing of the annuity, and found that the earl was not obliged to ascribe his possession to the decreet 1643 only, but that he might impute it to any right in his person, and found that the contract in the year 1623 is not usurary. And now Sir Patrick, conceiving himself damaged, repeats and insists in his reasons of reduction following: firstly, that the clause in the contract 1631 providing that the rents to be received by the earl should not be accounted in payment of the said £19,200, but only for the payment of the annualrents of that sum and of the current annuity, by which the possession is declared to be for two causes, and one of them, namely the annuity, having ceased by the death of the earl without male heirs of his body, the corresponding possession must also cease, and the surplus rent be imputed in payment of the principal sum of £19,200, or otherwise the earl's continuing to possess the whole estate after one of the causes of his possession had ceased was grossly usurious, contrary to the laws by which all bargains for greater interest and profit for the loan of money than the ordinary rate are declared usury. Secondly, the earl having accepted of the teinds of Old Cambus for £100 of the said annuity, when the annuity became extinct, that £100, by the contract of 1631, returned to John Stewart, and yet the earl still continued to possess these teinds; and before obtaining his decreet of possession in the 1643 did in the year 1642 grant a discharge thereof for 9 years preceding, by which a great part of the £19,200 was paid before the earl came to possession; and though it had been all resting, yet the decreet of possession in 1643 discerning the earl to possess the total rents for that sum when the other cause of his possession had ceased was expressly contrary to the contract of 1631 appointing his possession for both causes, and therefore intrinsically null. And further, Francis Stewart, Sir Patrick's grand-uncle, who then had right to the estate by a disposition from his brother, was not called in the process whereon that decreet proceeds, and therefore it was a matter among others as to him and Sir Patrick, who now comes in his right. Thirdly, the decreet freeing the earl from being accountable for his bygone intromissions was most precipitantly extracted, in so far as the last interlocutor upon which it proceeds, being passed in the afternoon, about 6 o'clock at night, the decreet, though above 300 sheets of paper, was extracted that same day, by which Sir Patrick was precluded from any further application to the lords for a redress, and therefore craved the said decreet pronounced by the lords of session may be reduced and that he may be restored fully against the same. Dalrymple answered that the decreet of the lords of session complained upon is most legally and well founded, and Sir Patrick has no title to pursue this action, for Sir Robert Home of Renton, who is the eldest brother's son, is heir of line to John and Francis Stewart, and any right Sir Patrick has is the pretended disposition granted by his brother, Sir Alexander Home, to him, yet sub judice by a dependence before the lords of session. And it is a gross mistake that the earl of Bothwell was deprived of the abbacy of Coldingham in favour of his son, John Stewart, before the commission of the crimes for which he was forfeited, and that the said John Stewart was restored from justice and so had any right at all, which did not depend on the earl of Homes. For the truth is the earl of Home, having obtained a gift of the earl of Bothwell's forfeiture, and John Stewart being thereafter restored from grace had no other way to come to the estate of Coldingham than by a transaction with the earl of Home, the donator, and therefore the first contract was not made by way of composition but upon fair agreement six months prior to the acts of parliament of 1621 in favour of John Stewart, and which acts could never have been obtained in violation of the earl's right without his concourse. And when the first contract in 1621 had failed by John Stewart's non-performance, the earl of Home renews the contract in the same terms in 1623, by which contracts the £4,000 sterling is payable in different instalments, and likewise the £300 of annuity was to be paid to him as said is, and it is provided that in case of failure of any of the instalments or annuity, the earl was to have regress to the possession until he was paid of the whole sums, fruits taken in the meantime not accounted in the debt, which being the special condition and quality under which the earl of Home was deprived of his property, he thereupon obtained in the year 1630 a decreet of regress to his possession for non-payment of the last £1,000 of the £4,000, so that it's plainly answered to the first reason of reduction that the earl of Home had another title of possession than the contract of 1631 and decreet of 1643 following thereon, and though by that contract he is bound to renounce his possession, yet it's in these words. It is possession by virtue of the contract, namely: for the £19,200 and the current annuity, which did not prejudice his other rights by the former contracts of 1621 and 1623 and decreet of regress in 1630, and he might possess by virtue of all or either of these rights as he thought fit. And it's clear that when the earl first conveyed his property, he might add what qualities he pleased, which are no harder than clauses irritant and resolutive in feus; and therefore in this case cannot infer usury, which can only be where there is a loan of money. And this serves also to take off Sir Patrick's second reason of reduction founded on the pretended intromission with the teinds of Old Cambus, because all that possession was after the decreet of regress of 1630, and so he was not accountable, and it could never extinguish. And next the pretended discharge produced is granted by Sir Robert Douglas of Blackerston with consent of the earl of Home to the countess of Home, by which it's evident, since the earl is only consenter, that the duty was paid to Blackerston for the earl of Bothwell's children. And to the third reason of reduction, it's answered that as the decreet quarrelled was justly pronounced, so it was fairly and warrantably extracted, and it appears from the date of it, which is 25 June and the date of the extracting, which is 23 July, that Sir Patrick wrought by petitions to the last moment and repeated with the same importunity and assurance the same things that had been several times rejected; and when the decreet was twice or thrice ready to be extracted, Sir Patrick, by new applications, procured stops, and at last a hearing, after he had protested, for scrolls and scrolls had been offered him, and it was no wonder that the decreet, which was so often ready to go out, was, after a process of 40 years, at last extracted. Indeed further, Sir Patrick having recently complained after strict examination, the lords were satisfied that there was nothing irregular or preposterous in extracting the said decreet; and least Sir Patrick pretend to withdraw his process, the earl repeats his process against Sir Patrick for insisting before the parliament, or that his appeal may be declared fallen, and that the parliament may adhere to the decreet of the session and absolve from the appeal and reduction thereon. Graham replied that the objection against Sir Patrick's title is a gross calumny, seeing the estate of Coldingham belonged to his grandfather, John Stewart, and Sir Patrick has right to the same by disposition from his cousin, Francis Stewart, John's grandchild, who, having no children, conveyed his whole estate to Sir Patrick. But more particularly replied that the earl of Home could not ascribe his possession to the decreet of regress for the £1,000 sterling in the year 1630, because the contract of 1631 and decreet thereon in 1643, being the only title by virtue whereof he entered to possess, he could not ascribe his possession to any other; and he was in bad faith to possess by virtue of the decreet of 1643, because there was reduction thereof raised within 6 months after its date. Next the decreet of 1630 was prescribed not to be used and it and the contract whereupon it proceeds was usurious to allow the possession of an estate of 12,000 merks yearly for £1,000 sterling, for the whole sum in the contrary was but £4,000 sterling, whereof £3,000 was paid. And by the contract of 1631, the earl was expressly obliged, upon pay of the £19,200 and annualrents thereof, to renounce his possession. And in the last place, the said £1,000 contained in the decreet of 1630 was certainly paid, as appears by these evidences: first, a tack set by the king to Sir William Dick of the lands of Orkney, the tack duty whereof for 5 years is assigned to John Stewart and his friends, and the debts due to the earl of Home on the estate of Coldingham is appointed to be paid in the first place out of them. Secondly, the contract of 1631 being posterior to the decreet of 1630, if that £1,000 sterling had been then due, it would certainly have been so expressed in that contract. Thirdly, by the contract of 1631, the earl was to renounce on payment of the £19,200 Scots, reserving only his infeftment of annuity, whereas if the £1,000 sterling had been then due, it would have also been reserved. Fourthly, there is a contract between John Stewart and his friends in 1633 and another in 1635 proceeding on an account and reckoning and bearing that the aforesaid sum of £4,000 sterling was paid to the earl of Home. Fifthly, if the £1,000 sterling had been resting in 1643, the earl would certainly have libelled upon it as well as the contract of 1631 whereupon he then obtained the decreet of possession. And sixthly, there's a disposition of the teinds of Stichill granted by John Stewart with consent of the earl of Home, bearing the price to have been paid at John Stewart's desire to the earl of Home, and albeit the earl does not subscribe the disposition, yet this earl's father, after succeeding to the estate, amply ratifies the same in the year 1639, which as effectually obliges him for the price as he had subscribed the said disposition, which bears the money to have been paid to him. Duplies Nasmith that it's a mistake in fact that the earl of Home entered in possession by virtue of the decreet of regress in 1643, for he did not attain to possession until 1648, and then having equal right to two titles of regress, namely: the decreet of 1630 and decreet of 1643, and not having declared his mind by which of them he attained the possession, it was lawful for him to ascribe the possession to both or either of them as he pleased; and it's absurd to pretend that the titles of a person possessing shall prescribe not to be used, and it was certainly lawful for the earl without the danger of usury to deprive himself of his own property under what conditions he thought fit, as was done by the contracts of 1621 and 1623. And as to the earl's obligation to renounce upon payment of £19,200, the former answer is opposed that he is only to renounce his possession by virtue of that contract, which in no way could prejudice his other rights. And as to the presumptive payments of that £1,000 sterling contained in the decreet of 1630, it's duplied that the tack and assignation of the tack duty of Orkney, and the contracts between John Stewart and his friends upon which Sir Patrick would found this presumptive payment are writs a matter among others in which the earl had no concern. And it's of no moment that the contract of 1631 makes no mention of the £1,000 sterling, nor is it thereby reserved, and that the decreet of 1643 is not founded thereon, because it was not enacted then, the earl having a decreet of regress and bond or other security for that sum, and so there was no necessity to insist for any further security by the contract of 1631, whereas the bygone annuities being a dead stock and the earl having the opportunity to accumulate it by an apprising, John Stewart's friends had reason to enter into the contract of 1631. Besides the argument turns as easily the other way, for, if the £19,200 Scots was all that remained of the great account due to the earl the time of the contract of 1631, it was but common prudence so to have expressed it, which, being omitted, strongly presumes that contract only concerns that separate sum, and was not for the balance of the whole affair. And as to the disposition of the teinds of Stichill, they were sold by John Stewart and his friends and Stichill's right completed by charter and sasine; but because it had been first intended that the earl of Home should have been consenter, as the disposition narrates, and was to have received the money, therefore many years after that Stichill had enjoyed his teinds and John Stewart had got the price, and after the earl of Home, who is narrated as consenter to the disposition, was dead, his successor was prevailed with, gratuitously and upon a narrative of inferring only love and favour, to grant a ratification of John Stewart's disposition to Stichill, and consequently he and not the earl alienated the teinds and received the money.

²Edinburgh, 13 March 1707

Her majesty's high commissioner and the estates, having advised the debate within with the decreet and other writs produced, they adhere to the decreet pronounced in the cause within by the lords of session in favour of the earl of Home, and absolve from the process of reduction at Sir Patrick Home's instance on his protest for remedy of law.

[James Ogilvy, earl of] Seafield, chancellor, in the presence of the lords of parliament