Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Earl of Dumfermling
v.
Lady Dumfermling

Date: 12 July 1626

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In an action of extension of a minute betwixt the Earl of Dumfermling and his mother, pursued at the instance of the Earl, and the Earl of Wintoun his tutor, against the lady,—the Lords found, that neither this minute could be extended nor should produce any other action thereupon, because the same was only set down by way of advice and counsel, and contained only the opinion of certain friends, whose opinions were sought by the said parties in certain particular questions anent matters controverted betwixt the said parties; which resolution and advice, so set down in the foresaid minute, was found not to be obligatory to bind the parties to their advice, and to the abiding and standing at the same; and so that it could not produce action against the party who should oppone against the same: And this was found, albeit the inscription bore these words, viz. Questions to be resolved by the three friends therein named, viz. the Chancellor, the Earls of Melrose and Lauderdale, with the which both the said parties were content; likeas the said minute, containing the said questions, was at the end thereof subscribed by both the said parties:—in respect of the which inscription, bearing, as said is, That the parties were content, and, in respect of their subscription of the minute, the pursuer replied, that the defender could not be heard to allege that the minute was not obligatory, and that it was but a naked advice, which could not bind by the law. Which reply was not respected, and the minute found not to be obligatory, because it was set down by way of advice, as said is.

Act. Hope and Nicolson. Alt. Stuart and Aiton. Gibson, Clerk.

Page 214.