Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

James Carstairs
v.
Christian, Jennet, and Grizell Carstairs, his Sisters

Date: 22 July 1673

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

In a reduction of a decreet-arbitral, at the instance of the said James, whereby he was decerned to pay the sum of twelve thousand merks to his sisters, upon a reason of fraud and circumvention, in so far as he was induced to submit to the arbitrators, by concealing and keeping up of a disposition made to his father, of some lands and acres, which, by the said decreet, was conveyed to him, and for which he was decerned to pay the said sum; whereas if he had known of that right, it was so clear and absolute, that he needed not to have submitted to have paid any thing for his right to that land:—

It was answered, That it was offered to be proved by the arbitrators and communers, that his father's disposition was made known to him the time of the submission, and was read in all their presence.

It was replied, That his private knowledge was not probable by witnesses, but by his own oath, and that the arbitrators, being concerned to maintain their own decreet, could not be witnesses.

The Lords did sustain the answer to be proven by witnesses and by the arbitrators and communers, seeing the reason of fraud libelled, was craved to be proven by witnesses, to take away a decreet; and, therefore, a fortiori, the allegeance of private knowledge was probable that same way, and before the same witnesses.

Page 364.