Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Henry Young
v.
Pearson

Date: 2 July 1678

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Henry Young pursues reduction of a decreet-arbitral betwixt him and Pearsons, bearing a general submission, according to claims, and particularly anent the payment of the lands of Muirhaugh. The reason of reduction is upon iniquity, because the disposition of the lands of Muirhaugh bore expressly the payment of the price, and yet the arbiters decerned the pursuer to pay a sum affecting a part of the lands; which decreet bears this clause,—“That, by instruments and witnesses adduced, it was proven that the pursuer promised to satisfy that burden, and that he acknowledged the same before the arbiters.” And though there was an instrument taken upon the promise, yet, by the laws of this kingdom, promises are not probable by witnesses or instruments, or by the assertion of the arbiters to justify themselves; and, therefore, the arbiters did wrongously take from the pursuer that which the law of the kingdom had given him.

It was answered, That, by the nature of a submission to arbiters, they may proceed secundum bonum et æquum, and are not understood to do iniquity by municipal laws, in relation to the formalities or penalties thereby introduced; and, therefore, they might justly sustain a promise, which is binding by the law of God, and action only refused against the negligence of parties who take no writ, that witnesses shall not be admitted; and, therefore, the arbiters might sustain the promise, as they might take off a penalty, or certification, or the expiring of a legal, or a clause irritant; though Judges, who must proceed according to the law of the land, could not do it.

The Lords sustained the decreet-arbitral; the defender, in fortification there of, proving, by the arbiters' oaths, that they did examine the witnesses in the instrument bearing the promise, upon oath, and that they did prove the promise, or that the party did acknowledge the same before the arbiters.

Vol. II, Page 626.