Scottish Court of Session Decisions

Subject_1 ARBITRATION.

Gardener
v.
M'Ilhose

Date: 10 July 1741
Case No. No. 5.

Prorogation, - Variance of the arbiters. - Penalty.

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Decreet-Arbitral objected to because a prorogation by arbiters had not the writer's name and designation. Some of the Lords doubted if that was any nullity; but there being a proof that after the prorogation parties compeared and gave in claims and answers, that homologation was found relevant and proven. Second objection, The submission being to two arbiters, and in case of variance to any one of them with the oversman, the decreet was given by one of the arbiters and oversman, upon a narrative of variance betwixt the arbiters, but no reference by the two arbiters signed. The Lords repelled the objection, and thought the evidence of variance sufficient, unless a contrary proof were offered, that either the arbiters did not meet, or had not finally varied. Third objection, The submission contained only L.100 Scots of penalty, whereas the decreet decerned a sum to be paid under a penalty of L.7 sterling, and separately decerned them to obtemper the decreet under the penalty of L.100 Scots. The Lords found that both penalties could not exceed L.100 Scots, but found it no nullity.

*** In the case of Walter Grosett, against Colonel Erskine and Creditors of Balquhan, the point anent the penalties was determined in the same way. (See Dict. N0. 9, p. 626.—No. 10, p. 627.)