Subject_1 ARBITRATION. Subject_2 Time of Endurance.
The Relict of Bailie Archibald Cockburn v. Daniel Edward, Mason
Date: 31 January 1724 Case No. No 31.
Where a submission gives power to arbiters to determine betwixt and a certain day, it includes that day complete.
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In a suspension of a decreet-arbitral, as being pronounced after the powers of the arbiters were expired, the question turned upon this point, Whether these words of the submission, The Judges Arbiters are to determine betwixt and the Twenty-second Day of December, did, in the construction of law, include the 22d Day?
The charger, in support of the decreet, brought the authority of the civil law, l. 133. ff. de V. S. l. 13. 56. § 5. l. 72. § 1. ff. de verb. ob. and took notice of the opinion of the Lords of Session, observed by Dirleton, 26th January 1675, and alleged, that the common practice was to pronounce decreets-arbitral upon the last day, as in this case; all which would come to be void, if this reason of suspension was sustained.
It was pleaded for the suspender, That, in boundings of land, the terminus ad quem is never included, unless it be expressly so provided: Which should likewise hold in periods of time, especially when the term is described by these words, betwixt and a day certain; for it is the natural meaning of this expression, that the intermediate time is only comprehended.
And it was answered to the authorities brought from the civil law and my Lord Dirleton, That they either related to the meaning of the word intra, which did not agree exactly to the words in question, or else they concerned the cases of debt, or avoiding of penalties; in both which there was a favourable dispensation with the general rule.
The Lords having considered, that, in many such cases, decreets-arbitral have been pronounced on the last day; therefore find these words, betwixt and the twenty-second, include the day.
For Mrs Cockburn, Hay.Alt. Ja. Graham, sen.Clerk Mackenzie.
Fol. Dic. v. 3. p. 37. Edgar, p. 17.
