Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Brown of Cairntown, and Colvill of Brunton v. Gardner of Northtarrie
Date: 10 January 1739 Case No. No 42.
Found that a party may accede by facts and deeds to a submission betwixt others, respecting landrights, without signing the submission.
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Northtarrie having inclosed a piece of muir, which his two neighbours, Cairntown and Brunton, alleged they had been immemorially in use to pasture, he, in order to settle their differences, wrote a letter to both of them, signifying, that the properest way to adjust their marches, was to refer the affair to an arbiter, whom he named. To this Cairntown returned an answer, declaring, he was pleased with the proposal, and that he had likewise spoken to Colvill about it, who agreed to the same; in consequence whereof, the arbiter came to the ground, and asked the parties, if they had agreed to the submission? To which all the three answered, That they had bound themselves by mutual letters to stand to his determination, touching the marches and boundaries referred to him; whereupon the arbiter took the depositions of the witnesses adduced for each of them, and thereafter pronounced his decreet-arbitral, finding Cairntown and Brunton had a right to pasture on the muir, and ordaining Northtarrie to open a passage in his dyke, in order that they should have access thereto. After which, a decreet having been likewise obtained before the Sheriff against Northtarrie, to implement the decreet-arbitral, he suspended, insisting, amongst other grounds, on this objection, that the decreet-arbitral was void, as Colvill, one of the parties, had not signed the letter agreeing to submit; so that it could be considered, with regard to him, in no other view than a verbal submission.
The Lords sustained the objection against the decreet-arbitral in question, that it proceeded upon a verbal submission, as to the right of lands, in so far as concerned Thomas Colvill, one of the parties, and therefore is null.
But, upon a reclaiming petition, and answers, the Lords found the decreet-arbitral was binding upon Thomas Colvill, in respect of his compearing and adducing witnesses before the arbiter.
C. Home, No 112. p. 181.
*** This case is reported by Kilkerran, voce Locus PÆnitentiÆ.
