Dubious Clauses. - Revocation of a Tailzie. - Liberty to contract Debt. - Conjunctly and Severally. - Just and Lawful Debts. - Liferent and Fee. - Back-Bond. - Importing Property or only Servitude.
Lord Ross v. Maxwell
Date: 22 July 1673 Case No. No 37.
A clause, submitting to a party, what should be given for an entry to lands, and bearing, ‘what he pleases to determine,’ was found to entitle the arbiter, to decide entirely at pleasure, without regard to any rule or practice.
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The Laird of Newark having made his application to the Commissioners of the thesaury, for changing of the barony of Newark from ward to tax-ward, where in the Lord Ross at his desire concurred; at which time Newark, by bond, obliged himself to receive the Lord Ross in the five-pound land of Stainlie, which he hath in property, for a proportional part of the expences, together with what further it should please the Lord Ross to determine and appoint for his entry, to whose determination he referred and submitted himself. The Lord Ross having charged Newark to enter him on this bond, Newark suspends, on this reason, that he ought to have a year's rent of the land for the Lord Ross's entry; for albeit, he did submit the entry to the Lord Ross himself, yet the Lord Ross is only thereby arbiter, and ought to determine according to law and equity; by which it is clear a year's rent is due for the entry of a singular successor. It was answered, That this clause was not conferred as in arbitrium boni viri, but simply to his arbitriment, bearing, what he pleases to determine; and it cannot be thought that this reference was to no effect, for a year's duty was the most could be demanded by the strictest law, without any reference.
The Lords found, that the clause did import an absolute arbitriment at the charger's pleasure, but that he behoved to determine somewhat for the entry, and appointed one of their number to speak with him as to the quota.
