Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Anne Paton
v.
Alexander Leith of Balschiry

Date: 9 July 1708

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Anne Paton, relict of Andrew Logie of Lonehead, and Alexander Leith of Balschiry, having pursued mutual riots before the late Privy Council; and it being remitted to a committee to hear the parties; and finding that the best way to settle all their differences, was, that Mr Leith should buy her liferent; and both parties having submitted to the Lords of the said committee, they, after hearing, decerned her to convey her jointure to him, with absolute warrandice, on his paying her 2700 merks, as its value at seven years' purchase. Thereafter, on a representation that it was hard to oblige her in absolute warrandice, there is a second decreet-arbitral drawn up, obliging her only to give warrandice from fact and deed; and she having charged on this second decreet-arbitral, he suspends on this ground, That the committee, as arbitrators, were fundi and exauctorate by the first decreet emitted by them; and had no power to alter the same by pronouncing a second; and he was willing to obtemper the first. Besides, the second was, ipso jure, null, not being signed by the major part; in so far as the committee consisted of eight persons, and it is only subscribed by four of them; for, though the committee first named was only seven, yet, at the next diet of Privy Council, my Lord Forbes was superadded and adjoined; and this made them eight. Likeas, it was ultra vires compromissi, there being nothing tabled before the Council but the riots, and not the purchasing her jointure; which he has neither inclination to, nor benefit by it, but is merely in damno vitando.

Answered,—That first draught, which Balschiry calls a decreet, was nothing but a rude scroll or minute to be shown to the parties, that, after adjustment, it might be extended in mando; and therefore it is not subscribed by the whole committee as arbitrators, but only by the Earl of Buchan, as their preses at the time, which shows it was never designed for a final decreet. And, though no more but the riots were at first before the Council, yet, to make a full understanding betwixt the parties, all their differences were submitted; which may very well comprehend the jointure: and, though my Lord Forbes was added to the committee, yet the first nomination was only of seven, and the submission was made to them before his assumption; and so four, subscribing the decreet, make the major part of the whole. And, for the right, she and her husband have possessed these lands these twenty years, and none has ever appeared to quarrel their right; so the warrandice is in no hazard.

The Lords found, that my Lord Buchan's subscribing the decreet, as preses, was not sufficient, unless all the rest of the arbiters had subscribed it as well as he; and so annulled the first decreet as illegal. And, as to the nullity objected against the second, found it wholly depended on this single point of fact,—If my Lord Forbes was named and adjoined before the parties submitted: for then it is certainly null, as not signed by the plurality of the arbitrators; but, if he was added after the submission was entered into, the decreet was good, as signed by the major part; and ordained that matter of fact to be tried.

Vol. II. Page 450.