Isabel and Helen Hays v. Sir George Hay of Pitcullen, their Brother
Date: 9 December 1671 Case No. No 88.
A decree-arbitral, bearing to grant a renunciation with absolute warrandice, was found so far reducible, as to bear warrandice only from fact and deed, upon the deposition of the arbiters to this effect, after they were function.
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By a decreet arbitral betwixt Sir George and his two sisters, they are decerned to renounce whatever could befal to them by the decease of their father and mother, and particularly half a year's annual duty of their mother's liferent, which might have fallen to them as executors, which denunciation they are decerned to warrant against all deadly, whereof they having interned reduction upon this reason, that the absolute warrandice was filled up by the writer without the knowledge or consent of the arbiters, and therefore ought to be only from their own fact and deed, as being only proper for renunciations of rights bearing no disposition; it was answered, That the decreet being subscribed and performed on Sir George's part, the arbiter's oaths or declaration could not now be taken in his prejudice, they being functi ofjiciis; and could only be taken away by Sir George's own oath. The Lords having taken the declaration of the oversman and some of the arbiters, who declared, that it was agreed that the warrandice should only be from fact and deed, they decerned the sisters to be no further liable, in respect that ex natura rei they could not be further obliged in law, which seems hard.
Fol. Dic. v. 2. p. 122. Gosford, MS. No 419. p. 211.
