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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pitcairn of Dreghorn v Cochran of Ferguslie. [1716] 5 Brn 133 (26 July 1716) URL: http://www.bailii.org/scot/cases/ScotCS/1716/Brn050133-0138.html |
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.
Date: Pitcairn of Dreghorn
v.
Cochran of Ferguslie
26 July 1716 Click here to view a pdf copy of this documet : PDF Copy
Mr. David Pitcairn of Dreghorn, being appointed to take up a list of the pollable persons in the parish of Collington, he himself was contained in the list, and classed at nine pounds Scots ; and the said list having been given in to Ferguslie, the general tacksman of the poll, Dreghorn accordingly made offer of the said sum, which Ferguslie refused, alleging he was not given up in the list. After some reasoning, Dreghorn asserting, and Ferguslie denying, that he was in the list: at last Dreghorn wagered the whole poll in Collington parish that he was contained in it, and Ferguslie did wager the quadruple of the said poll that Dreghorn was not in the list. There having occurred several points to be discussed in the
cause, this single one, viz. whether here there was at all any wager properly so called, was only discussed by the Lords: And Dreghorn contended there was, Because this was not a simple offer, but a formal agreement and transaction concerning the truth of a matter of fact, and the promise upon either hand was the consequence of that bargain ; so that here there intervened all that was necessary to complete a formal wager, which is reprobated by no law.
Answered for Ferguslie,—That though Dreghorn did indeed offer a wager to the value of the whole poll of that parish, yet [he] was no otherwise answered than by another offer to wager the quadruple; so that there was nothing but an offer to wager hinc inde, but no actual wager closed with, nor accepted: since Ferguslie did not accept of the terms offered by Dreghorn, neither did Dreghorn accept of his terms, which were quite different. And a sponsio or wager, where writ is not adhibited, seems to require a stipulation and restipulation, for making it evident that parties are agreed upon the terms, without which the intention of binding themselves can never be inferred ; so that this wager being incomplete, resolves upon both sides in a naked offer, without any determinate resolution anent the terms.
The Lords found that here there was no wager, and therefore superseded to determine whether a wager is binding or not. [See below.]
Act. Ramsay. Alt. Muir. Gibson, Clerk. Vol. II. No. 26. page 34.
The electronic version of the text was provided by the Scottish Council of Law Reporting
