Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
William Short Wright in Edinburgh, v. William Hopkin Beltmaker there
Date: 13 February 1711 Case No. No. 313.
Formalities of a decree-arbitral.
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In the suspension of a charge upon a decree-arbitral at the instance of William Short against William Hopkin, the Lords found it no nullity in a decree-arbitral, That it wanted the writer's name and designation; albeit it was alleged for the suspender, That only acts of office, as writs under the hand of common clerks or notaries relating to their respective offices, require not the inserting the writer's name; and a decree-arbitral is not a public deed of that nature, but only a private writ, containing the opinion and judgment of some knowing honest man in a private capacity concerning the differences of parties referred to him; nor doth execution pass upon decrees-arbitral, by public authority, but by consent of the submitter's signing a clause of registration to be subjoined to the arbiter's sentence; in respect it was answered for the charger, That though a decree-arbitral is not a judicial act in a strict sense, yet arbiters being vested by law with sufficient authority to determine in matters submitted to them, their decrees have all the effects of any judicial decree, and may in some sense be reckoned judicial acts. Again, arbiters being authorised to proceed with more latitude than ordinary judges, viz. Secundum æquum et bonum; and their decreets declared, by the act of regulation 1695, unquarrellable upon any cause or reason whatsoever, save that of corruption, bribery or falsehood; such decrees ought to meet with all imaginable, allowances of favour.
