Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 DECREET - ARBITRAL.
Subject_3 No good objection found to lie on the ground of defect of proper evidence of the arbiters' having differed in opinion, so as to make way for the decision of the oversman, against decreet-arbitral pronounced by him, seeing that the decreet bore a recital of his own appointment by the two arbiters, conform to a minute subscribed by them, naming him to be their oversman, in regard they could not precisely agree touching the decision to be pronounced with respect to the matter thereby submitted; his taking upon him the determination in that capacity, and his having, in conjunction with one of the arbiters, made choice of a clerk conform to another minute, subscribed by the said arbiter and him, and produced.

Andrew Gardiner
v.
Robert Ewing

Date: 19 January 1773

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[Dictionary, 559.]

Gardenston. I am not satisfied with the decision in Dalrymple. It is sufficient evidence of the arbiters having differed, that the oversman undertook the office. I would never overturn decreets-arbitral upon niceties of form. But I doubt as to the reference, as it is not a probative deed: such reference is, in effect, a new submission, and ought to have all the solemnities of a submission.

President. Lord Gardenston requires too much form in decreets-arbitral, while at the same time he would support the informal. The reference is an actus legitimus, and would have been good, even in the shape of a minute.

Kaimes. As to the case in Dalrymple, I presume the decreet-arbitral there was very iniquitous, and that the Court laid hold of every objection.

On the 19th January 1773, the Lords found the letters orderly proceeded; adhering to Lord Stonefield's interlocutor.

Act. Ilay Campbell. Act. W. Campbell.