John, Duke of Atholl, Respondent
Subject_Reduction — Decree Arbitral — Relevancy. —
A reduction was brought of a contract, a decree arbitral, judgment of the Court of Session, which pronounced in terras of the decree arbitral, and a judgment of the House of Lords. Held that no relevant grounds in law had been stated for reducing these.
The appellant’s father, it was stated, had, previous to his death, and subsequent to the judgment in the House of Lords in the previous appeal in reference to the same subject of dispute ( vide ante, vol. iv. p. 54), recovered some additional evidence, which, as was alleged, brought more distinctly to light the circumstances under which the deed or contract of 1716 was granted; and he was, therefore, advised to bring a new action of reduction of that deed or contract, and of the decreet arbitral following upon it in 1761, as well as of the judgments of the Court of Session and House of Lords pronounced thereon.
This action of reduction stated as reasons for so reducing these, inter alia, that “the said contract is not only unjust and unfair in itself, but was brought about by force and compulsion,
so as to be challengeable, ex capite vis et metus. The said decree arbitral is not only unjust, but radically defective, in respect the arbiter acted ultra vires, but the decreet is in itself contradictory, unintelligible, and inextricable.”
The defences returned were in these words, “Seen and returned with this defence, that no relevant reasons of reduction are libelled, and deny the libel.”
March 11, 1808.
Jan. 7, 1809.
Feb. 2, 1809.
Feb. 18, 1809.
June 20, 1809, and July 6, 1809.
This action, after the death of his father, was revived by the appellant, and after various procedure had, the Lord Ordinary pronounced this interlocutor:
“Having advised these conjoined processes, and considered what passed at a very full hearing of counsel thereupon, and having heard nothing stated, which appears to him to possess any aspect of relevancy for reducing the decreet arbitral, 1761, which, under the judgments of this Court, and of the House of Lords, forms the rule of possession of the parties, with respect to the matters in dispute, of new sustains the defences pleaded for the defender in the original process of reduction, and now again proponed in the conjoined processes; repels the reasons of reduction, whether of the said decreet or of the contract, 1716, or other rights recognized by it as valid, refuses this representation, and assoilzies the defender; and with respect to the declaratory conclusion in the new summons, being of opinion that they are either ill-founded in law, or adverse to the judgments above mentioned, proceeding on the present validity of the said decree arbitral, assoilzies the defender therefrom, but without prejudice of his enjoyment and possession of the subjects in question, continuing to be regulated by the said judgments, and subject to the same, and under this quality decerns; finds the defender entitled to expenses, and remits the account thereof when put in to the auditor, and dispenses with any representation, but supersedes extract during the vacation.”
On reclaiming petitions being given in to the Court, the judges, adhered.
On appeal to the House of Lords, these interlocutors were affirmed with £100 of costs.
Counsel: For the Appellant, Sir Saml. Romilly, John Haggart, Duncan M’Farlane.
For the Respondent, Wm. Adam, Ar. Fletcher.