Scottish Court of Session Decisions

Subject_1 RES INTER ALIOS.
Subject_2 SECT. I.

Proof.

Mrs Sochan
v.
Walter Boswell of Balbarton

Date: 30 November 1709
Case No. No 20.

An oath emitted before arbiters deferente adversario sustained to prove contra deferentem, as well as against the deponent, although, no deciee-aibi-tral followed on the submission; but neither concessions of parties, interlocutors, nor minutes before the arbiters were found probative or binding.

Click here to view a pdf copy of this documet : PDF Copy

John Sochan and Balbarton having submitted all differences betwixt them in a count and reckoning to two arbiters, and Mr Sochan having died before any decreet was pronounced, but after giving in of claims hine inde, by way of charge and discharge, formal minutes of debate upon the articles, interlocutors as to relevancy, and the defunct had deponed negative as to some articles referred to his oath by Balbartoun; Mrs. Sochan, as representing her husband, brought the matter by a process before the Session; in which it was objected for Mrs Sochan against those articles in Balbartoun's charge upon which her husband had deponed before the arbiters, That they ought to be repelled, because, juratum est.

Answered for Balbarton, All concessions of Parties, minutes, and interlocutors before arbiters are void and null, unless a decreet-arbitral proceed thereon; since the design of a submission is, That final decision be put to all debates and controversies betwixt the parties, in prospect whereof they are frequently induced to make large concessions. These necessarily fall in consequence of the submission's expiring without taking effect by a decisive sentence, and parties are in statu quo prius; in the same way as deeds or gifts intuitu matrimonii, return bine inde, if the marriage go back. Submissions may expire after the arbiters have determined the claim of one of the parties, or one side of a count and reckoning; and it were absurd to sustain such a constitution thereof, while the other party is left to pursue his right by a tedious process.

Replied for Mrs Sochan; Proceedings before arbiters are sustained before other judicatures after failing of the submission L. 5. § 1. & 2. C. De Recept, Arbitris; and Gothofred upon that text. Because judiciary proceedings before one whose jurisdiction is prorogated by consent of parties, is of the same authority quoad the consenter, as that which is done by the ordinary magistrate. And an oath of party taken before arbiters was found probative, January 2. 1708, Kinloch contra Lindsay, No 20. p. 14033; 3tio, A false oath emitted before arbiters, would infer the crime of perjury; 4to, Balbarton hath homologated Mr Sochan's oath, by founding an allegeance thereon, and therefore cannot quarrel it, Arg. L. 4. § 6. D. De Recep. Arbitr.

Duplied for Balbarton; An oath materially considered, implying, a written acknowledgment or declaration of matters of fact, is indeed always probative against the deponent, which is all that was found in the case betwixt Kinloch and Lindsay: But the present question is, If Mr Sochan's oath should be sustained to prove for him which it cannot be, more than a party having adduced before arbiters witnesses for proving an article of his claim, who prove nothing, would, upon expiring of the submission, be hindered in a process before the Judge ordinary, to prove the same by new witnesses or otherwise; in respect the litis contestation upon Balbarton's referring such articles to his oath (which could only support it as probative in his favour), is fallen to the ground by the submission's not taking effect. This is consonant to the Civil Law, L. 5. Pr. C. De Recept. Arbitr, where it is said, That if a decreet-arbitral be duly reclaimed against within ten days, (multo magis, if no decreet be pronounced) neither party has any prejudice thereby, but are in the same case as if they had not submitted. And the § 2. bears only, Si quid attestatum sit, i. e. The concurring testimonies of witnesses adduced before arbiters are probatiye before the Judge-ordinary; but not that si quid Juratum sit should be equally probative, and exceptio firmat regulam in non exceptis; 2do, An oath taken ex officio, or any extrajudicial oath, as well as an oath taken before arbiters, would infer perjury; but that is still an effect against the deponent, and so non probat elenchum, viz. That any such oath doth operate in his favours; 3tio, Balbarton's charge being articulatus libellus, wherein quot articuli, tot libelli, he may be found Mr Sochan's oath as to any article acknowledged by him, and regulate the same as to other articles.

The Lords found, that neither interlocutors, concessions, nor minutes before the arbiters, were probative or binding; but that Mr Sochan's oath doth prove contra deferentem, as well as against the deponent, because of the sacredness of an oath.

Fol. Dic. v. 2. p. 349. Forbes, p. 357. *** Fountainhall reports this case:

By contract betwixt Walter Boswell of Balbarton and Magnus Prince, on the one part; and Sochan, a leadshot-caster, on the other; Boswell is bound to furnish him so many tons and fodders of lead yearly, and he is obliged to deliver it back manufactured to them; and they having failed in giving him the full quantity, he pursues them, and recovered a decreet for the L. 1000 of penalty; and then they entered into a count and reckoning as to what was received. To facilitate the work, they entered into a written submission to two arbiters, who made a great progress therein by sundry minutes, interlocutors, concessions, and oaths taken on sundry articles; but the day of submission expiring before any decreet-arbitral followed, without any new prorogation, the same came to be deserted, and they returned back again to count and reckon before the Lords. Socshan, during the dependence, dies, having assigned the process to his wife; and Boswell charging her with sundry articles, it was answered for her, That some of them were clearly determined by interlocutors in the arbitration, and others of them being referred by Boswell to Sochan's oath, he had deponed thereto, and so she was tuta exceptions rei juratæ. The Lords found minutes, interlocutors, and concessions, made in a submission, which did not end in a decreet-arbitral, were binding on neither party; but as to the oath emitted, they thought, if it had been taken ex officio judicis arbitrators only, it could not be obtruded as probative in a judicial process; but it being taken parte deferente, and at the party's own desire, they heard the lawyers debate this point in their own presence, how far such an oath could be sustained as probative here. It was contended for Boswell, that it was null, 1mo, Because the scope and design of all submissions was, by one decisive stroke to put an end to all the controversies betwixt them; but if no deoreet follow, their intention is to be in statu quo prius; for parties will go a great length in yielding things in an arbitration, which, in strict few, they Would debate; and arbiters take a greater latitude secnndum bonum et æquum to terminate pleas, than they legally do more judiciario in process; and therefore, if no decreet-arbitral follow, whatever steps or advances were made towards the agreeing of the parties, all evanish into smoke and air with the submission; 2do, If it were otherwise, many absurdities would follow: What if one of the parties' claims were determined, but nothing done in the objections or discharge, shall that stand as binding, and the other party be sent to a tedious and expensive process: This were to discourage persons from entering into submissions, though a most excellent and useful medium for sopiting of pleas; and litiscontestation in such cases bears a resolutive condition, that, unless the arbiters agree and pronounce a decreet-arbitral, the whole falls to the ground, even as gifts spe futurarum nuptiarum return, hine inde, if marriage follow not; and the Emperor Justinian in L. 5. C. De Recept. Arbit. determines, That in arbitrations, by mutual concessions, nihil sit inde prejudicii, unless there be a liquid professum et attestatum. (Professum is acknowledgments of matters of fact in writ under the party's hand. Attestatum is the depositions of witnesses taken before arbiters, for both these are probative before the Judge-ordinary.) But there is no mention, that party's oaths taken in arbitrations can be used elsewhere. Answered, That oaths are as authentic proofs when given parte deferente, as either subscribed acknowledgments, or testimonies of witnesses; if this oath had been in favours of him who deferred it, no question it would have militated against him; why should there be such an inequality as to reject it when it proves for him; since, by your delation and election of his oathy you intended the benefit of it, you must not divide it, but take it precisely as it stands; and the Lords found so, on 2d January 1708, Wright contra Lindsay, No 19. p. 14033.; and if any writ contrary to this oath could be produced, would not that subject him to the pains of perjury? And it is a received maxim, that acta et deducta in uno judicio probant in alio, and the testimonies taken before the Sheriff, or other inferior courts, will prove before the Lords. See 16th Jan. 1628, Finlayson contra Lookup, No 7. p. 14024. The Lords having balanced all the inconveniencies, they sustained Sochan's oath in this case as probative, though it was assoilzieing Him from an article charged on him, and so in his own favours; though some doubted if this will determine the general case of oaths emitted parte deferente in arbitrations, where no decreet-arbitral has followed.

Fountainhall, v. 2. p. 532.