Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Mary Stewart, Relict of the late Earl of Athole,
v.
The present Earl of Athole

Date: 20 February 1633

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Dame Mary Stewart, relict of umquhile James, Earl of Athole, being infeft, conform to her contract of marriage, in the lands and barony of Reidcastle, which, by contract, her husband bound him and his heirs to warrant to be worth at least fifty chalders victual,—pursues the tenants and the Earl of Tullibardin, for his interest, for the maills and duties of the crop 1632. Compears the Earl of Athole for his interest, and alleges, That the pursuer cannot claim the maills and duties: because by decreet-arbitral pronounced by the Earl of Kinghorn, the Viscount of Stormonth and the Laird of Inchmartine, to whom the said pursuer had submitted herself in a compromitt betwixt her and the said Earl of Athole, her sister son, who was bound to warrant the lands of Reidcastle to the Earl of Tullibardin, of her conjunct fee, what she should have for her right to the said lands of Reidcastle; the said arbiters had, by their decreet, ordained her to renounce her conjunct fee and right to the earldom of Athole for 500 merks by year during her lifetime. It was alleged by the pursuer, That this decreet ought to be reduced, because it was given against all equity and reason; and, in respect of her enorm lesion, ought to be reduced ad arbitrium boni viri, and to be rectified by the Lords of Session, who were supreme judges in such causes. It was triplied by the defender, That, in decreets-arbitral, standum est sententiæ, sive æqua, sive iniqua sit. The Lords first ordained the parties to dispute upon the lesion. The defenders then alleged, That the lands were burdened with infeftments prior to the pursuer's infeftment which would exhaust the haill rent, except nineteen chalders of victual. The Lords thought it reasonable to rectify the decreet-arbitral, and ordained the party submitter to pay her £1000 at Whitsunday next; and yearly, since the decease of her husband, 1200 merks, at two terms, Whitsunday and Martinmas, and in time coming, during her lifetime, at the said terms.

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