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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dr Alexander Johnstone v The Executors of James Crawford. [1775] Hailes 729 (4 February 1775) URL: http://www.bailii.org/scot/cases/ScotCS/1775/Hailes020729-0431.html Cite as: [1775] Hailes 729 |
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[1775] Hailes 729
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ARBITRATION - FOREIGN.
Subject_3 A foreign Decree-arbitral can be made effectual in Scotland, and is not reducible on account of iniquity or informality.
Dr Alexander Johnstone
v.
The Executors of James Crawford
1775 .February 4 .1776 .December 10 .Click here to view a pdf copy of this documet : PDF Copy
[Fac. Coll., VII. 327; App. I. Arbitration, No. 4.]
Coalston. It is plain, from the opinion produced, that in Holland decreets-arbitral may be reduced, upon iniquity, within a limited time. If we lay hold of the law of Holland in order to set aside deoreets-arbitral, we must take it in all its parts, and with its short prescription. But I see that from the general rule there is an exception of minority.
Kaimes. I doubt whether there is any thing here to stop execution. The money must be paid, upon caution.
President. If the decreet-arbitral can be opened, we are not bound to observe all the forms of the courts in Holland. Why should we give more force to this decree than to the decree of any foreign court?
Kennet. I formerly considered this not as a decree but as a contract. That difficulty is now removed. I do not see the necessity of giving way to the forms of Holland in finding caution.
Gardenston. That is, we will take no more of the law of Holland than we like. I think that the allowing of execution, upon caution found, is judicious.
Kaimes. A decree of a foreign court is with us no more than a judgment, which may be supported upon equity; but there is a difference between a decreet
and a contract, which is juris gentium. The law of Holland says that you are relieved in so far as to allow a challenge, upon finding caution. On the 8th February 1775, “The Lords found, That the decreet-arbitral is challengeable, but must, in the meantime, be carried into execution, Dr Johnstone finding caution.”
Act. J. Boswell. Alt. A. Murray. Reporter, Gardenston. 1776. December 18.—In this case the Lord Gardenston, Ordinary, “Having considered the whole proceedings in this cause, particularly the remit from the Lords, the additional case, and opinion thereon of Dutch counsel, assoilyied the defender.”
On the 10th December 1776, “The Lords assoilyied” in general, waiving the general point, whether this cause ought to be tried by the law of Holland. As to that, Monboddo and President expressed their doubts. I have made this memorandum for preventing any mistake.
Act. A. Murray. Alt. J. Boswell.
The electronic version of the text was provided by the Scottish Council of Law Reporting
