Subject_1 ARBITRATION. Subject_2 Time of Endurance.
James Hay of Tourlands, v. Earl of Eglington*
Date: 25 February 1630 Case No. No 27.
An arbiter may determine at any time, even beyond year and day, after the date of a submission, bearing no time within. which he should determine, provided the parties, submitters be alive at the time of the decreet.
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A Decreet of spuilzie of teinds, obtained by the Earl against James Hay, being suspended by him, upon a reason founded upon a bond of submission, made by the Earl to the Laird of Caprington; whereby he submitted to the Laird Caprington, what the said James should do to him, for the said decreet; by which bond he obliged him to abide at Whatsoever Caprington should decern, and declare thereanent, the submission and bond being only subscribed by the Earl, and not by the other party nor Caprington, and having no time therein-contained betwixt and which the judge was holden to decern; and he having decerned by the space of four years after the date of the said bond, at least the decreet produced by the suspender in writ, being written of that date, but proponing, that the judge decerned the next morning, after the date of the submission; and that he had intimate the sentence to the party submitter at that time, which he had then put in writ, of that date whereof it was produced; whereupon the Earl proponing nullity, and having intented reduction upon that same reason of nullity, viz. That it was dated after year and day; and that the relation therein bearing it to be done debito tempore, ought not to be respected, being a declaration
* By mistake in the Fol. Dic. the parties are named, Maxwell against Roger.
made at that time, when the judge was functus officio suo, as said is, and when he had no power.—This allegeance and reason was rejected, and notwithstanding thereof the decreet sustained; for this being a bond, obliging the party to abide at the judgment, and declaration of the person chosen and nominate in his bond, and he being limited to no day betwixt and which to determine; it was found, That such bonds and submissions expire not after expiring of year and day, after the date thereof, but that the same last and endure, and the judge may make his declaration at any time, so long as the party survives, at least at any time before he be charged by the parties to decreet, and within a competent space, as the judge shall think reasonable to assign after the charge.
Act. Nicolson & Scot.Alt. Stuart & Belshes.Clerk, Scot.
Fol. Dic. v. 1. p. 50. Durie, p. 495.
