Subject_1 ARBITRATION. Subject_2 Time of Endurance.
Hepburn v. Hepburn
Date: 14 March 1639 Case No. No 28.
A decree-arbitral was sustained, though given after the year, because the submission contained also a bond impowering the arbiter to decide, relative to a third party not subscribing, but now claiming the benefit of it. The bond contained no day not blank, and was found to be more than a simple submission.
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The brethren and sisters of umquhile Colonel Sir John Hepburn, having submitted all questions and rights, which they might pretend to the goods, gear, and means of the said umquhile Sir John, to the Laird of Wauchtoun, and some other friends, wherein the submitters were bound, and did refer to the saids friends, to determine what proportion of the saids goods should be given to George Hepburn, the son of the eldest brother of the said Sir John, which George was then in France, the time of the making of the said submission and bond, and did not subscribe the same, nor none taking the burden for him; upon the which submission the saids friends had given their decreet-arbitral. The living brethren and sisters of the said Sir John being confirmed executors to him, pursue one Beaton, factor in Paris, for payment of 20,000 pounds, addebted by him to the said umquhile Sir John, who suspending upon double poinding, as being distrest by the executors foresaids on the one part, and by the said George, the eldest brother's son, on the other part. In this process the said George alleged, That these executors could never be heard to claim any more of this sum controverted, but that proportion thereof, which was contained in the said decreet, following upon the said submission pronounced by the saids judges: Likeas he produced both the submission and decreet, pronounced by the friends conform thereto, which declares what proportion of this Sum acclaimed is due to ilk one of the parties, beyond the which none of them ought to be heard to acclaim any more. And the executors answering, That the said decreet-arbitral was null, because it was not pronounced within the year after the date of the submission; but there were more than two months more than a year intervening betwixt the date of the submission and the date of the decreet, and so the same could not be found valid in law; especially where the same proceeds upon an alleged submission made, giving power to the judges to decern what proportion should be given to George of the goods controverted, which was a clause never communed on betwixt the parties, and to whom they have decerned the right of the most part of all the sums truly due to the executors only, against all reason, although the said George was not then within the country, nor hath subscribed the same himself, nor no other for him, taking the burden for him, and who was then and is yet minor; and who, if he were hurt by that decreet, could not be bound thereby.—The Lords having heard both parties, they found, that none of these parties can claim any more right to any of the sums controverted, except the proportion decerned to ilk one of them by the said decreet; which decreet-arbitral the Lords sustained as lawful and valid, albeit it be not given within the year after the submission; in respect, albeit the year was long expired before the judges decerned, yet they found the decreet good and sufficient, being done, and following not upon a naked submission, but the submission containing also a bond, whereby the parties gave power to the judges to determine what proportion of the umquhile Colonel his goods should be decerned by them in favours of the said George, and obliged them to abide thereat, which bond was more than a submission, and there was not any day nor time contained in the said submission and bond, nor any blank left therein, nor clause conceived thereanent, betwixt and the which the judges should decern; and therefore it was found, that upon a submission containing such a bond, and bearing no day, there was no necessity to the judges to decern within the year; neither was it respected that George was out of the country and did not subscribe it, and that he was yet minor, in respect it was a clause conceived in his favours which he did accept of, and so might thereby better his case; and therefore the Lords repelled the allegeance proponed for the executors, &c.
Act. Dunlop for Beaton.Advocatus & Stuart for George.Alt. Nicolson.Clerk, Gibson.
Fol. Dic. v. 1. p. 50. Durie, p. 883.
