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Scottish Court of Session Decisions >>
John Melvill of Carnebie, v Agnes Strang. [1539] Mor 623 (12 March 1539)
URL: http://www.bailii.org/scot/cases/ScotCS/1539/Mor0200623-001.html Cite as:
[1539] Mor 623
Subject_1 ARBITRATION. Subject_2 Power of Arbiters.
John Melvill of Carnebie, v. Agnes Strang
Date: 12 March 1539 Case No. No 1.
An arbiter has no power to enforce his decree.
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There is ane difference betwix the decrete of arbiteris and the sentence or dome of a judge; for ane ordinar judge may put his decrete to executioun, and punish the partie disobedient thairto; but ane arbiter may not punish the partie that is contumax and disobedient to his deliverance, but gif he have special power gevin to him be the parties thairanent; in the compromit. And, therefore, ane sentence and decrete-arbitral beand gevin aganis ony partie, he aucht and sould fulfill and obey the samin, and has na place to persew for reduction thairof, gif he, beand of perfeit age, was sworn, and oblist in the compromit to stand at the decrete-arbitral to be gevin betwix him and his partie, be the arbiteris chosin betwix thame: And sicklike the parties are oblist to obey the decrete, and not reclame thairfra, gif in the compromit it was expresslie contenit, that quhat decrete sould be gevin betwix him and his partie, thay renunce all manner of appellatioun or reclamatioun thairfra, etiamsi sequatur læsio enormis, vel in maxima quantitate. Because the effect of arbitrie is, that the sentence thairof sall stand, and be obeyit, quhidder the samin is justlie gevin or not, swa that it be not gevin expresslie aganis the law, or be fraud or deceipt done and committit be ony of the arbiteris; for ilk arbiter sould be void of all fraud and guyle.
