THOMAS JOHNSTON v GEORGE ROME (Court of Session)

The lands of Frankfield, consisting of about 16 acres, in the immediate vicinity of Dumfries, had been the property of Lieutenant Francis Graham, who died intestate many years ago, leaving two sisters-german, Esther and Martha. The former married one Rome, and the only issue of the marriage was the father of George Rome, the defender.

About the year 1819, the defender, who was an operative weaver, was made aware of his claim to a pro indiviso half of Frank-field, as in right of his grandmother, Esther Graham. He, in consequence, authorised steps to be taken for the purpose of vindicating his rights. In particular, a service was expede in his favour, but it never was retoured to Chancery, or recorded.

Thereafter, the pursuer brought an action for implement of the missives of agreement with the defender; which was met by a reduction at the defender's instance of the letter subscribed by him.

The Lord Ordinary ordered cases for the Court, and subjoined the following note: ‘The Lord Ordinary has no doubt the rule against pactum de quota litis exists in our law; but he thinks the extent of it less clear, and a matter of very considerable importance. He would rather incline to sending the question of fraud to a jury. The evidence produced is very much after the date of the pactum.’

II. But the agreement is likewise ineffectual, in respect the pursuer, acting at all events as the defender's confidential adviser, impetrated the letter from the defender by fraudulent misrepresentation and concealment, both with regard to the difficulty and uncertainty of the question, and the magnitude of the risks which were encountered by the pursuer; Ballantyne v. Nelson, Nov. 1682, M. 4891; Maxwell v. Culter, 24 July 1735, Fol. Dict. M. 4874; Long v. Taylor, in House of Lords, 28 May 1824, Shaw's App. Cases.