Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Cumming of Coulter
v.
Gordon of Achindanie and Gordon of Talpersie

Date: 19 December 1671

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There is a decreet-arbitral pronounced betwixt Cumming of Coulter and Gordon of Talpersie, whereof Cumming of Coulter raises suspension and reduction, and insists on this reason, That the decreet-arbitral was most unjust, and he enormly lesed, against both law and equity; because the suspender, having married Talpersie's daughter, he promised him 2000 merks of tocher; and, upon his refusal to pay the same, Coulter took the gift of his escheat: and there being some debts due by Coulter to Talpersie, a submission was made to two friends, and, in case of variance, to an oversman; which oversman not only decerned Talpersie to discharge the escheat, and any further claim which extends to the said additional tocher, but also to discharge a bond of 3000 merks, wherein Talpersie was debtor to Coulter, and which was not submitted; and only decerns Coulter to discharge a bond of 1080 pound, a ticket of fourscore pound, and a ticket of 100 merks, and that upon payment of 300 merks; the value of which escheat was worth 12,000 merks, and the bond of 3000 merks, with annualrents, was come to 9000 merks. It was answered, That there was no injustice or enorm lesion in the decreet-arbitral; because, as for the escheat, it being taken by Coulter, the arbiters might justly decern him to discharge it in favours of his own good-father, being satisfied of his just interest; and they have decerned him more than his interest, both for that and for the pretence of additional tocher, for which he had nothing to instruct; nor did he put the matter to Talpersie's oath before the arbiters; and, though he had, the three tickets, with their annualrents, would have balanced both; and, as for the bond of 3000 merks, Talpersie produced a discharge from ——— Keith, who was Coulter's agent, upon payment of the sum, thirty-seven years ago, since which there was no pursuing of the debt; and though the assignation be lost, the oversman, upon trial of the case, and the common fame that the debt was paid, might justly decern the same to be discharged; for though, in strict law, writ or oath of party doth only take away bonds, yet, amongst arbiters, other evidences may be sufficient; and there were adminicles extant of the assignation, that might have given ground to prove the tenor thereof by witnesses; and though this bond be not, per expressum, submitted, yet all clags and controversies, concerning any bonds or debts, are submitted; which might well comprehend this, especially being so old and controverted a right. It was answered, That, if the submission had been wholly general, relating to claims, or, if it had borne a clause conform to claims to be given in, it might have comprehended this sum; but, being special as to the matters of less moment, without the said clause, it cannot be extended to this sum, especially seeing the oversman is a cautioner in this bond. The Lords found none of the reasons of reduction relevant, but adhered to the decreet-arbitral.

Vol. II, Page 27.