Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Gray of Crichy
v.
The Earl of Lauderdale

Date: 22 February 1688

Click here to view a pdf copy of this documet : PDF Copy

In a reduction, at the instance of Gray of Crichy, against the Earl of Lauderdale, of a disposition granted to him, then Lord Hatton, by the Lord Gray, the pursuer's author, upon these reasons and qualifications of concussion and circumvention: 1. The defender having called for the Lord Gray's right in a reduction and improbation, they were kept up nine months by his lawyers after production, and refused to be given back. 2. The defender gave a factory to uplift the rents of the Lord Gray's lands, and, de facto, did uplift some of them before he could induce him to dispone. 3. The defender was in great power and authority, so as the Lord Gray durst not complain of his actings. 4. The Lord Gray was lesed ultra dimidium, in having received from the defender only 21,800 merks for 50,000 merks' worth of land. Alleged for the defender, That the qualifications founded on do neither infer circumvention nor concussion; because, 1. Writs produced in improbations use to ly in process longer than nine months. 2. The bargain was verbally agreed to before the factor's intromission. 3. Sola potentia in great men cannot infer concussion, which is a crime; and the Lord Gray was major, sciens et prudens, and had free access to judicatories for redress, if wronged. 4. There was no lesion, in respect of a provision in the bond granted to my Lord Dundee's two sisters, authors to the Lord Gray, that the share of any of them dying unmarried should accresce to their brother; and, de facto, one of the sisters died unmarried, and the other's share was not worth 21,000 merks: besides, the bargain was a transaction of the pursuer's right, which was then under process at the defender's instance, as donatar of ultimus hæres to the Lord Dundee. The Lords, upon advising a probation of the above mentioned qualifications of concussion and material lesion, reduced the Lord Gray's disposition to the defender; but assoilyied him from counting for bygone mails and duties, and ordained the pursuer to restore the price to the defender. This decision proceeded not upon the heads of concussion or material lesion separately, but super tota materia, junctis jungendis. Vide No. 556, [The Earl of Lauderdale, &c. against the Earl of Aberdeen, 13th January 1692;] and No, 557, [1ord Gray against the Earl of Lauderdale, February 1685.]

Page 160, No. 578.