Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Earl of Southesk
v.
The Earl and Countess of Traquaire

Date: 25 July 1677

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In a reduction of a decreet-arbitral, pronounced by the Archbishop of Glasgow and the Earl of Queensberry, upon a reference made to them by the deceased Earl of Southesk, with power to grant an abatement of what sums they should think fit, after count and reckoning, whereby they decerned the abatement to be £20,000;—the decreet was craved to be reduced upon these reasons; —1st. That the decreet was pronounced after the Earl of Traquaire's decease. 2d. That, by the submission or reference, the abatement was only to be granted after count and reckoning, that it might be known what was the true quota of the just debt. 3d. That the reference did expressly bear to be given in contemplation of a decreet of declarator, as consented to by the Earl of Traquaire, declaring Southesk's right, made by the Earl of Traquaire's father, to be irredeemable, notwithstanding that his son, the Earl, who was then living, had a prior right to Southesk, and had never consented to his father's right.

It was answered to the first, That they opponed the submission, which was conceived only in the words of a reference by Southesk; so that there was no necessity to obtain Traquaire to subscribe the same: and, albeit Traquaire died before the decreet, yet that did not take away the arbitrators' power, during the Earl of Southesk's lifetime, to pronounce that sentence.

It was answered to the second, That the reference was opponed; which bears nothing of the arbitrators being made judges of the count and reckoning; but only, that, there being a count and reckoning before the Lords of Session, they should have power to determine the abatement after the count should be stated: as to which Traquaire and his curators are yet willing.

It was answered to the third, That the submission expressly bears, that Traquaire had consented to the Earl of Southesk's declarator of his irredeemable right; which was done by his procurator's compearance for him, and consenting to the decreet; which accordingly was put in the minute-book, and might have been extracted by Southesk: Likeas, they are content yet to cause this Traquaire grant whatsoever is in his power.

It was replied for Southesk, to all these reasons; That he opponed the submission, which bears expressly a reference as to the questions and depending actions betwixt him and Traquaire, with that express quality and condition, that they should have power to determine the defalcation, after just count and reckoning; which being first in order, and reason requiring no less than that the true quota of the debts should be stated, before the arbitrators should exercise their power; the count never being stated, and in the meantime Traquaire dying, they had no power thereafter to pronounce their decreet, and grant a defalcation of £20,000; which was a great and exorbitant sum, before they did know what was the true sum that was justly resting owing: and, farther, it was urged, that, by the death of the Earl of Traquaire before ever he did subscribe a consent to Southesk's right, he was clearly prejudged of that security, which, by the reference, is the sole cause of his submission; and creditors of Traquaire, comprising, may yet question his right; and this Earl, not being heir to his father, is not in capacity to make that right irredeemable.

The Lords, having considered the whole debate, with the submission itself, as likewise the oaths of the Archbishop of Glasgow and the Earl of Queensberry, who were the arbitrators, conjunct with the Marquis of Montrose, but so that any two of them should have power to determine, the Archbishop being always one; they did find,—That the decreet-arbitral, giving the abatement, was good and sufficient, notwithstanding that Traquaire died before pronouncing; but did qualify the decreet, so that there should be a count and reckoning, and the £20,000 should be the most, supposing the debt to be near 200,000 merks; but, if the true quota of the debt became less, the abatement to be proportioned: As likewise, they found, That, before the benefit thereof be obtained, this Traquaire should give a valid consent to Southesk's irredeemable right, as coming in place of his father. Which seems hard.

Page 677.