Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir William Laurie of Maxweltoun v. John Gibson of Glencrosh
Date: 5 July 1710
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Laurie of Maxweltoun against Gibson. Sir William Laurie of Maxweltoun pursues John Gibson of Glencrosh on an old decreet-arbitral pronounced in 1673, decerning his father to pay 1300 merks to Maxweltoun's father.
Alleged,—This being a decreet thirty-seven years ago, and never heard of till now, and being a sum modified to be paid by Gibson, vassal to Maxweltoun, for an entry to his lands, and for discharging bygone non-entries; and it being asserted that Maxweltoun gave him a charter, and performed his part of the decreet-arbitral, law presumes the other mutual prestation has been simul et semel performed; seeing a superior will not readily enter his vassal till he pay the composition. But, whatever be in this, the decreet-arbitral is null, being founded on a prorogation; the sole warrant of which is only subscribed by the arbiters, and wants both writer's name and witnesses.
Answered to the first,—Anent the prestations enjoined by the decreet, that can import nothing, unless he have a discharge. And, as to the nullity, they had, by the submission, power to prorogate; and the Acts of Parliament requiring writer's name and witnesses relate only to probative writs betwixt parties, but not to writs of persons acting by virtue of an office and trust, such as arbiters; and was so found in a notary's seasine, 26th June 1634, Lord Johnstone against the Earl of Queensberry; and 9th December 1635, Earl of Rothes against Leslie; where the Lords sustained a decreet-arbitral, though it wanted witnesses: and the like, 10th December 1632, Hunter against Haliburton.
Replied,—Their faculty of prorogation was but a delegated power, and so they could do no more by virtue of it than the parties themselves could have done; and, as they could not prorogate by a writ wanting writer's name and witnesses, so neither could the arbiters. And as the submission would be null without witnesses, so will the prorogation be in the same way, it being upon the matter a new submission, and the immediate warrant of the decreet-arbitral following thereon. And, as to the decisions cited out of my Lord Durie, they cannot influence this case; for the solemnities of writs were not come to a consistency at that time, but were fluctuating, and can be no rule now.
Several of the Lords thought the prorogation null; but, being of importance, they took hold of the first allegeance, and allowed probation, before answer, what implement or performance had been made of the prestations hinc inde, contained in the decreet-arbitral; and recommended to the Ordinary to hear the parties thereupon. For the Lords thought, if the superior had fulfilled his part in granting a charter, it was a strong presumption that the vassal had also paid the entry; especially seeing his house, since that time, had been burnt, where the discharge might have been lying.
There was another point started, That the prorogation was signed on the 20th of October, to last betwixt and the 15th of November thereafter; and the decreet-arbitral is pronounced on the said 15th day, which is without the limits of the submission, and so null: for though, in other cases, a day prefixed in favours of one of the parties, includes the day, so that, till it elapse, there is room for performance; but it is not so in submissions, which run de momento in momentum. But, this not being fully debated, it was not decided at this time. It was suggested, That the parties compeared before the arbiters on the said 15th day, and gave in their claims; which was a plain acknowledgment and homologation of the prorogation. But this being only faintly alleged, it was not regarded; unless it had been proponed peremplorie, and offered to be proven.
