Subject_1 ARBITRATION. Subject_2 Power of Arbiters.
Walter Grosat, Charger, v. Henry Cunningham, &c Suspenders.
Date: 24 January 1739 Case No. No 9.
Arbiters cannot decern for a penalty, other or greater, than is contained in the submission. The penalty will be restricted quoad excessum.
Click here to view a pdf copy of this documet : PDF Copy
These parties entered into a submission, wherein they bound themselves to obtemper the decreet, under the penalty of 20l. Sterling; and, by the decreet-arbitral following thereon, the suspenders were decerned to pay 200l. Sterling, by equal portions, at Lammas and Martinmas then next, with 201 Sterling of penalty for each term's failzie; and likewise it decerned for a penalty of 20l. Sterling, to be paid by the party failing to observe, to the party performing, or willing to perform.
It was objected, in a suspension of the decreet-arbitral, That the arbiters had acted ultra vires, in decerning for 20l. Sterling of penalty for each term's failzie.
Answered: Wherever a liquid sum is found due, or decerned for by arbiters, they can either make it payable by the decreet-arbitral at a certain term, or they can decern the party debtor to grant bond for it, payable at a certain term; and, in this last case, they would decern the bond to be extended in common form, that is, with interest from the date, or term of payment, and a fifth part of the principal, as penalty: And the case is the same where they decern a sum to be paid by their decreet-arbitral; the decreet-arbitral is, in that case, the bond, and the fifth part for penalty is, of course, a part of the bond. There is no absurdity at all in supposing two different penalties to be due, one by the bond, and one by the obligation to submit; and both are incurred in case of disobedience, the penalty in this submission by disobedience, and the other by failure of payment.
The Lords restricted the penalty in the decreet-arbitral, to the penalty in the submission*.
C. Home, No 117. p. 188.
* This case in Fol. Dic. v. 1. p. 49. is named, Boquhan against Grossart, and dated 24th February 1739.
