Scottish Court of Session Decisions

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

Thomas Garven
v.
Doctor Trotter

Date: 13 January 1681

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Thomas Garven pursues a reduction of a decreet-arbitral pronounced by Patrick Tailzifer between Doctor Trotter and him, in which Patrick did allow two receipts by Garven, as several payments, where the sums were near one, and the day of the receipt the same; but, to make them appear two, the date of the one was vitiated.

It was answered, That the decreet-arbitral is opponed: and arbiters do not insert particular debates and interlocutors in their decreets, nor keep they any thing upon record; but they do proceed upon the acknowledgment of either parties, and upon such probation as are sufficient to convince good men, although not having all the solemnities requisite in law; and therefore the arbiter ought to be examined, if these discharges were produced to him, and allowed by him as distinct, and whether the parties did acknowledge the same, and made objection against them.

It was replied, That this could not be proven but by the oath of party or writ.

It was duplied, That, if this hold, all decreets-arbitral import nothing, seeing they never express the points in debate, nor the probation; but seeing both parties did trust the arbiter, though they may question his opinion or judgment, yet they cannot refuse his oath what was done in matter of fact, or what was produced or acknowledged before him, especially ex intervallo; unless, immediately upon intimation, or pronouncing his decreet, they had protested against any particular which he had sustained, either in relevancy or probation.

The Lords, before answer, ordained the arbiter's oath to be taken.

Vol. II, Page 833.