Subject_1 ARBITRATION. Subject_2 Power of Arbiters.
Andrew Knox, Tenant in Harley, v. George Hume of Kames
Date: 12 March 1707 Case No. No 7.
Arbiters cannot decern that their decrees shall take effect by summar diligence, unless the parties submitters interpose their consent thereto.
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George Hume of Kames being charged at the instance of Andrew Knox tenant in Harley, to pay a certain sum contained in a decreet-arbitral, as the price of some corns submitted by them to two arbiters, he suspended upon these grounds: 1mo, That the decreet was ipso jure null, because the blank on the back of the submission in which it was filled up, was not subscribed by the parties submitters; which, according to constant custom, is essential to a decreet-arbitral, as an evidence that they submit implicitly to the arbiters' determination, whatever it be. 2do, Though the decreet should not be found null for want of the party's subscription to the blank it was filled up in; it could not be a warrant for a summar charge of horning; because, albeit the submission bears a clause for registrating thereof, it bears no consent to the registration of the decreet-arbitral, to follow thereupon; but only the arbiters do most irregularly, in their decreet, consent to the registration thereof in any competent judge's books: And their consent to registration can be no ground to raise horning against the parties who subscribed not the blank in which the decreet was filled up.
Answered for Andrew Knox: Albeit ordinarily submissions bear the blank on the back on which the decreet-arbitral is to be filled up, to be subscribed by the submitters, and they actually do subscribe the same: Yet that is not essential to the validity of a decreet-arbitral, more than the clause renouncing the exception of not numerate money, and the clause but prejudice of suiting execution hereupon, &c. are necessary clauses in bonds. The decreet is indeed most frequently written upon the back of the submission, that it may be insert in the same register with the submission: But nihil impedit, why a decreet-arbitral may not be on a paper apart. Since a verbal decreet-arbitral, proceeding upon a verbal submission, hath been sustained; February 7. 1671, Hume contra Scot*. And as a testament may be validly made up of three words, Lucius Hæres esto; any words though never so few, importing the acquiescence of parties in what shall be determined by arbiters, are infallibly binding, as if they should submit thus, Lucius Arbiter esto.
The Lords found the decreet-arbitral was no warrant for summar diligence: reserving the consideration of the other point anent the annulling of the decreet, because the blank on the back thereof was not subscribed by the parties. But they were generally of opinion that the want of the party's subscription to the blank, was not a nullity in the decreet filled up therein.
Fol. Dic. v. 1. p. 49. Forbes, p. 142.
* Stair, v. 1. p. 716. voce Proof, verbal contracts.
