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A decree-arbitral pronounced by an oversman, found null, in respect it did not bear that the arbiters had varied, without which the oversman could not interpose.
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Gordon of Ardmelly pursues a reduction of a decreet-arbitral, pronounced upon a submission betwixt him and Abernethy of Mayen, concerning contraverted marches; on this reason, That the submission was pronounced by the oversman alone, without the concourse of any of the arbiters.
It was answered: The submission, according to common stile, did bear, that, in case of variance, the arbiters should chuse an oversman, whose decision alone is sufficient: And in this case there was a prorogation of the submission, to this effect, that the parties and arbiter having met and examined witnesses, found it necessary to make choice of an oversman, whom they did thereby name; therefore the saids parties and arbiters did also thereby prorogate the submission to a further diet, betwixt and which time, the saids parties, arbiters and oversman were to meet at the same place, and fully to decide and determine all contraversies submitted.
By that prorogation, it was evident, that the arbiters had varied, whereby there was place for the decision of the oversman, whose sole determination was sufficient, in case of variance, and was also a full probation that the arbiters had not agreed.
It was replied: 1mo, The prorogation does not prove such a difference amongst the arbiters as could entitle the oversman to decide; because it bears, that the parties, arbiters and oversman, were to meet again, whereby the oversman could not interpose, unless there had been a variance posterior to the prorogation. 2do, Neither is the assertion of the oversman a sufficient document that the arbiters had varied; but that ought to have been instructed by the concurrence of the arbiters for one of the parties, in pronouncing and signing the decreet-arbitral. 3tio, In this case the decreet-arbitral does not so much as bear, that the arbiters had met and varied.
It was duplied: Decreets-arbitral being firmly established by law as unquarrelable, except upon bribery or falsehood; they are not easily to be overturned upon formalities, which cannot be expected where arbiters are not lawyers, as it generally happens; and there is no need of the concurring of the arbiter for one party, seeing the trust is lodged in the oversman; and it is easily presumed, that the arbiters for the party who acquiesces in the decreet would concur, if that were necessary; and the omission of mentioning in the decreet, that the arbiters had varied, is no material circumstance; but in fortification thereof, it is offered to be proven, by the arbiters oaths, that they did differ.
It was triplied: A decreet-arbitral being formal in itself, is a firm security, and therefore the more necessary that it be duly pronounced and extended; and it is too great a trust to lodge in the oversman, that his assertion alone should prove; and it is yet more, to presume a variance, when the decreet does not so much as affirm it; and if the decreet be not good and valid of itself ab initio, it cannot ex post facto be supplied.
‘The Lords found the decreet-arbitral, not bearing the arbiters to have varied, null; and that the nullity could not be supplied by an after probation.’
