Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir John Shaw of Greenock v. Sir John Houston of that ilk
Date: 28 June 1698
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Rankeilor reported the bill of suspension given in by Sir John Shaw of Greenock against Sir John Houston of that ilk, of a decreet-arbitral pronounced by my Lord Whitelaw, upon a submission entered into betwixt them, anent their rights on the estate of Maxwell of New Wark exposed to sale, and which of them should have it at the roup, and some other claims; wherein the arbiter assoilyied Greenock from the articles craved by Houston, and discharged Greenock to bid at the roup of the lands of New Wark; and, lest he should do it by an interposed person, decerned him to grant a reversion for himself and his heirs, that these lands should be always redeemable, from him and his heirs, by Houston, for sixteen years' purchase. The reasons of suspension were, 1mo. That to restrain him to bid at a common roup was contra bonos mores, against public utility, et contra libertatem subhastationis fiscalis; and was condemned in the case of Sir Thomas Kennedy and the Lord Bargeny, about the roup of Girvanmains, lately sold. 2do. The decreet is ultra vires compromissi; the discharging of Greenock's heirs to purchase New Wark being neither submitted nor submittable in itself, laying them under a perpetual servitude and interdict, exempting these lands from commerce quoad them.
Answered,—Esto there were both hardship and iniquity in the case, yet now, by an article of the regulations 1695, decreets-arbitral are declared unquarrellable upon any head whatsoever, except that of corruption and bribery, which is not pretended here. 2do. The decreet may be maintained against the injustice founded on; for what hinders a man from binding himself up from bidding at such a roup? If that obligement be lawful, why may it not be the subject of a submission; and that case of Bargenie's and Kennedy's came to no decision, but was transacted. And as to the perpetual reversion, it was only to make the prohibition effectual, that he might not evacuate it by the interposition of a third party; et quod directo fieri non debet, nec per obliquos cunniculos licere debet; and in a late case of a decreet-arbitral, pronounced by one Forrester, between Henderson of Meggetland and John Luke, merchant in Glasgow, though it was carried on by tricks and fraud, yet the Lords would not reduce it, unless they proved bribery or corruption.
The Lords sustained the decreet-arbitral, and repelled the reasons of suspension.
