[1778] Hailes 780
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SALE - ARBITRATION.
Subject_3 A reference of the Price, in a Contract of Sale, to Arbiters, found to be binding on the Heirs of the Referrer.
Earl of Selkirk
v.
Robert Naesmith
1776 ,March 8 ,and1778 ,January 20 .Click here to view a pdf copy of this documet : PDF Copy
[Fac. Coll., VIII, 9; Dict., 627.]
Gardenston. There is a just distinction between arbiters and arbitrators. An arbiter is named to determine to whom the subject shall belong; an arbitrator to value the subject,—it being already determined to whom the subject shall belong. By the death of one of the parties submitting, the office of arbiter ceases, but I do not see why the same rule should prevail as to arbitrators.
On the 8th March 1776, “The Lords stopped the sale of the lands in controversy.”
Act. A. Crosbie. Alt. W. Craig. 1778. January 20. Gardenston. Parties may conclude a bargain by reference to arbitrators. Arbiters determine as to matter disputed, but arbitrators as to the extent of what parties agree in.
President. Res non erat integra by any means: much money had been actually paid in part of the price. Had the arbiters died, the Court might have named other arbiters.
Braxfield. The only question is, Whether there was truly a bargain; and whether Lord Selkirk may proceed to an adjudication in implement? When a submission is once entered into, and part of the price paid, res non est integra. The death of the arbiters would not vary the matter, for the Court might interpose.
On the 20th January 1778, “The Lords found that there was a concluded bargain, and remitted to the Ordinary.”
Act. A. Crosbie. Alt. W. Craig. Reporter, Covington.
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