Scottish Court of Session Decisions

Subject_1 ARBITRATION.

Gardner
v.
M'Ilhose

1738, July 13. - 1741, July 10.
Case No. No. 5.

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There being an objection to the prorogation by arbiters of a submission that it wanted the writer's name; the Ordinary had sustained the nullity, but allowed a proof before answer of homologations. When the case was advised, some of the Lords doubted whether it was a nullity, but there being a proof of the petitioners compearing and giving in claims and others after the prorogation, they found the homologation relevant and proved. 2dly, The submission being to the arbiters, and in case of variance to any one of them and the oversman, and the decreet being by one of the arbiters and oversman upon the narrative of such variance; the Lords found that evidence enough of the variance, unless a proof had been offered that they did not meet, or had not finally varied; and therefore repelled the objection, that there was no reference by the other arbiter. 3tio, The submission containing a penalty of L.100 Scots, the decreet decerned a sum to be paid under L.7 of penalty, and by a separate clause decerned the decreet to be performed under the said penalty in the submission of L.100 Scots. The Lords found, that both penalties could not exceed L.100, but did not find that a nullity in the decreet. This second point was determined the same way, 24th February 1739, Walter Grossett against Colonel Erskine and Creditors of Balquhan.