Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

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Date: 7 February 1632

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A decreet-arbitral is pronounced by the judges and oversman, wherein the parties, submitters, are ordained to do certain deeds to others; and, farther, one of the parties submitters is ordained by the said decreet to discharge a contract, wherein the oversman was obliged, for certain sums of money, to the said party submitter. The sum being charged for by the party, the oversman suspends upon the said decreet-arbitral, That by virtue thereof he was discharged. Against the which it was replied, That this decreet-arbitral cannot be respected; because there was no submission betwixt the charger and the suspender, and he, being oversman, chosen in the submission betwixt the charger and another party, could no ways take a decreet to himself, decerning that which was not submitted to him. To the which it was duplied, That the charger had homologated the decreet, in so far as, conform to the said decreet, he had performed to the other party, submitter, what he was ordained to do by the said decreet; and so having homologated the same in a part, he could not resile from the same in another part. The Lords found the decreet-arbitral should stand, if the party, proponer of the homologation, could, by writ or oath of party, prove that the deeds done by them to the other party, submitter, were done for the performance of the said decreet-arbitral: Otherways repelled the exception.

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