Macbryde and Logan v. The Executors of Governor Macrae
Date: 21 July 1748 Case No. No 58.
Question upon a clause in a submission, whether the oversman alone had the power of prorogation.
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Mr Hugh Baillie of Monktoun disponed his estate to four persons, for payment of his debts to themselves and his other creditors; and Hugh Roger, merchant in Glasgow, one of them, in virtue of powers from the rest, made a bargain with James Macrae, sometime Governor of Madrass, and a minute of sale was signed, which not being sufficiently determinate of the conditions of the bargain, it was agreed, that any dispute which might arise should be adjusted by two indifferent persons to be mutually chosen; and in case of their disagreeing, by an oversman to be chosen by them: And dispute shaving arisen, a submission was entered into, “obliging the parties to stand and abide at whatever the said arbitrators, and in case of their variance, the oversman, should determine, conform to their decreet-arbitral to be pronounced by them, and subscribed by them betwixt and the——day of——next, or any other day to which they should prorogue that present submission.”
The submission was continued, by several prorogations, till 1st October 1739; and the arbiters, 5th September, had pronounced a partial decreet, and referred the remaining questions to the Lord Cathcart as oversman, who prorogated it to 31st October, the date of the prorogation bearing 27th October, and 10th October pronounced his decreet, which was registrate, with the prorogations, 11th october 1739.
Hugh Macbryde of Baidland, and David Logan, writer in Kilwinning, two of the trustees, the other two being deceased, raised a reduction of this decreet-arbitral, upon this, amongst other reasons, that the oversman was not, by the submission, impowered to prorogate, and if he had been, the prorogation was in date after the former prorogations were expired, and indeed after pronouncing his decreet, which in date was after expiration of the preceding prorogations. To which it was answered, That it were absurd to suppose the oversman was not impowered to prorogate, who had power finally to determine; and the plural word, they, might, without impropriety, be understood of the arbiters before reference, and after that the oversman: The prorogation was certainly made 27th September, and October was a mistake in the writer, as was evident from the decreet and prorogations, being registrate 11th October, immediately after pronouncing.
The Lords, 19th July, “repelled the objection, that the oversman had not by himself power to prorogate the submission, and found the said prorogation was valid; and also repelled the objection to the prorogation, that, according to its date, it appeared to have been made after the expiration of the submission; and found there was sufficient evidence to prove that it was dated before the 1st of October 1739, to which day the submission was prorogated by the arbiters.” And this day refused a bill, and adhered.
Act. W. Grant.Alt. R. Craige.Reporter, Elchies.Clerk, Forbes.
Fol. Dic. v. 3. p. 36. D. Falconer. v. 1. p. 375.*** The same case is thus mentioned by Kilkerran:
1748. July 8.—A submission bore a power of prorogation in these words:
“And whatever the said arbiters, or, in case of their variance, the said oversman, shall determine in the said matter, conform to their decreet-arbitral, to be pronounced by them, and subscribed by them betwixt and the day of next, or any other day to which they shall prorogate this submission, which they are hereby impowered to do; both parties oblige them to stand and abide at, &c.”
The last prorogation made by the arbiters bore date the 20th October 1738, and prorogated the submission to the 1st October 1739. On the 5th September 1739, the arbiters having differed, subscribe a reference to the oversman, and the oversman, on a recital of the reference to him, and in regard the submission stands prorogated only to the 1st of October, which would be too short a time for determining the differences, therefore prorogates the submission to the 31st of October.
On this submission, decreet-arbitral followed on the 10th of October 1739; which, in a suspension, being objected to as null, in respect the oversman had not by the submission power by himself to prorogate, the Lords repelled the objection.
They considered the power of prorogation, by the above recited clause in the submission, to be given to the same parties to whom the power of determining was committed; that is, to the arbiters, and in case of variance, to the oversman.
