Anna Paton Relict of Andrew Logie of Loanhead, v. Leith of Belchirie
Date: 7 July 1708 Case No. No. 221.
A decree arbitral found invalid for being signed by the chosen preses of the arbiters, and not by a plurality.
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Anna Paton and Alexander Leith having raised mutual processes against one another before the Privy Council, and a committee being appointed to examine witnesses; both parties submitted their differences to the committee, by obliging themselves to obtemper and fulfil whatever sentence should be pronounced in the said matter. The committee gave out a decreet signed by the Earl of Buchan as preses, and thereafter pronounced another decreet in different terms, which was signed by the majority. Anna Paton charged Belchirie upon the last decreet, who suspended upon this ground; that the same was null, the arbiters being exauctorated by the former decreet of a different strain.
Alleged for the charger: The arbiters were not functi by the first sentence, which could not have the effect of a decreet, being signed only by the preses of the committee.
Answered for the suspender: Writ is not essential in a decreet arbitral, either by the civil law or by our custom, more than in other contracts bonæ fidei; but only an expedient to evidence what is to be performed by the parties hinc inde. For an arbiter is bound only Sententiam dicere; et si in sententia dicenda erraverit, eam corrigere non potest, quia arbiter esse desiit; and it was found, February 7, 1671, Home against Scot, No. 11. p. 8402. that a decreet arbitral was valid without writ.
The Lords found, That the decreet signed by the preses, and not by the plurality, was unwarrantable.
