Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Lady Athol
v.
The Earl of Athol

Date: 20 February 1633

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A submission being made by the Lady Athol to the Earl of Kinghorn, the Lairds of Auldbar, Inchmartine, and ——, immediately after her husband's decease, of all which she could crave of the Earl of Athol by any right competent to her; and they decerning her to have yearly 500 merks for all:—this decreet being desired to be reduced upon the reason of most enorme lesion, qualified in that she was provided to a conjunct fee of fifty chalders of victual, beside that she was one of the heirs of the Earldom of Athol; for all which rights the said judges had ordained only the said 500 merks yearly, which was vehemens læsio, and so insufficient for the entertainment of the meanest person whatsoever, far less for one of her birth and estate;—that the Lords, who were supreme judges, ought to repone her against that unjust decreet, which was so partially pronounced by the arbiters, wherein they had not behaved themselves as boni viri, according to trust committed to them; and, therefore, ought to be mended by the Lords, who were sovereign judges, and to whom recourses were permitted in law, as to the best men, to rectify such wrongs;—the parties being heard to reason in this cause at great length, and having considered the defender's exception, specially that in law it was alleged that both in ff. and c. it is expressly decided, Quod sit standum sententiæ arbitri, sive æquæ sive iniquæ, et sibi imputet qui compromisit, nam et minus probabilem sententiam ferre debet æquo animo; and the pursuer's answers in law made thereto, as may be more particularly considered in my other book of notes, fol. 27;—and also, the Lords having heard the defender, upon declaring the burdens wherewith the conjunct fee lands were alleged to be affected, before her conjunct fee granted thereof to her, and whereby he alleged the most that was free to her did not exceed 19 or 20 chalders of victual; so that he alleged that the lesion was not so great to reduce the decreet given by so honourable arbiters, granting that that lesion was a cause of reduction, which he altogether denied;—the Lords found this lesion to be most enorme, and that it was a cause to rectify the said decreet-arbitral, notwithstanding of the allegeance. And, therefore, they found that the lady ought to have yearly given to her, in place of the 500 merks decerned, 1200 merks yearly in all time coming, during her lifetime; for which sum they ordained the lady to have right sicklike as if that sum had been decerned by the sentence; and also, they ordained to be paid to her, for the space of a year which was expired since her husband's decease, 1000 pounds, by and attour 500 merks which she had gotten paid to her before. And this the Lords ordained to stand, as if it had been expressly decerned by the arbiters in their sentence.

Act. Stuart and Baird. Alt. Nicolson and Nairn. Hay, Clerk.

Page 676.