Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Lord Dalmenie
v.
Cressau

Date: 11 June 1751

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The Earl of Roseberry having contracted considerable debts, and being proprietor of an entailed estate, his creditors got his estate sequestrated by the Lords of Session, who at the same time allowed him an aliment out of it of L.100 sterling a-year. Thereafter, Roseberry, having got a considerable accession to his fortune by the death of the late Lord Primrose, lived extravagantly, and in the space of some months, over and above his aliment, spent betwixt L.700 and L.800 sterling, for which he granted three bonds to Cressau, the defender : two of these bonds were supported by accounts produced by the pursuer and recovered out of the hands of Lord Roseberry, by which it appeared that these bonds were made up partly of money advanced and partly of furnishings to my Lord's profusion, several of which furnishings were charged much above the real value, It appeared further, by parole evidence, that Cressau had no intention to deal with my Lord, but that he was forced in some manner thereto, partly by the violence of Lord Roseberry and partly by the solicitation of his wife ; also that he kept accounts of these furnishings, though no regular books, which accounts my Lord examined carefully, and made alterations in them before he signed the bonds, and had them delivered up to him. The witnesses also proved the furnishings, as far as the nature of the thing would admit; as also they proved that Roseberry was very cunning, and much more apt to deceive than to be deceived. Of these three bonds,—two of them supported by the accounts foresaid, the third resting wholly upon the parole evidence first mentioned,—Lord Dalmenie, having bound himself to pay all Roseberry's debts, so far as they were just and lawful, brought a reduction upon the head of fraud and imposition, and incapacity of Lord Roseberry to contract, on account of furiosity.

The Lords did not reduce the bonds in totum, but sustained the accounts so far as they were just and reasonable ; but so far as they were not just and reasonable, not only curtailed them, but also in the same proportion diminished the sums of money that made up the remainder of the two bonds to which the accounts referred, and in the same proportion, as by this means the two bonds should be diminished of which the accounts were produced, reduced the third bond, of which no account was produced, and remitted to an Ordinary to do accordingly.