Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Williamson of Patterhill
v.
Dinwiddie of Germiston

Date: 18 June 1777

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Should it so happen that a decreet-arbitral is so indistinctly worded as not to be intelligible, it can receive no execution, and must go for nothing;—an arbiter cannot be allowed to explain his meaning. It is the same in judicial proceedings, if a decreet is pronounced and extracted, the Judge is functus, and all explanation is at an end; at the same time, if the terms of a decreet-arbitral are clear, it would seem to be good, although some further steps may be necessary to give it parata executio. Thus should an arbiter find, that one of the parties must repair or rebuild such parts of a dike, or ditch, which he had thrown down; nothing hinders further proof to he led before a Court to ascertain this in order for execution, without infringing on the decree. This occurred in a case between Williamson of Petershill and Robert Dinwiddie of Germiston, (8th February 1775,) two heritors in the neighbourhood of Glasgow. They had quarrelled about cleaning a gott between their lands; Dinwiddie alleging that Williamson had not only cleaned it, but deepened it, and thereby damaged his property, by bringing down the sides of it in several places. The arbiters ordained Williamson to repair those places which he had damaged, without pointing them out more minutely. And, in a suspension, the Justice-Clerk, Ordinary, appointed them to be measured and ascertained, by the oaths of the arbiters, and the parties; and held, that, notwithstanding of this, the decreet-arbitral was good; and, in a suspension of it, he found the letters orderly proceeded.

The Lords were of the same opinion; and, therefore, as Mr Dinwiddie had referred the particulars of the breaches to Mr Williamson's oath, (4th February 1777,) they pronounced an interlocutor, “Finding that Williamson was bound to implement the decreet-arbitral, and to make the repairs thereby decerned, to the extent mentioned in his deposition, on the charger's reference; to that extent therefore found the letters orderly proceeded.”

Williamson reclaimed, and prayed the Court to reduce the decreet-arbitral as indefinite and unintelligible,—or at least to turn it into a libel. This last demand was treated as a novelty; and, upon advising petition and answers, the Lords, (18th June 1777,) adhered, and refused the petition. They found expenses due.

From certain decisions in the Dictionary, voce Indivisible, Vol. I. p. 462, it seems to have been the opinion of the Court, not to indulge with the privilege of summary diligence any part of a decreet-arbitral, where some part of it was ultra vires; but that it was necessary to submit the whole to the consideration of a Court of Justice, in the ordinary form, before any execution could go out upon it.

But in arguing on the cause, Cramond against Jack, (underwritten,) the Lords held, that, where a decreet-arbitral is pronounced ultra vires, yet if these parts ultra vires can be separated from the rest, though the decreet will be null as to these, it will stand in full force as to the rest.