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Scottish Court of Session Decisions >>
Freeland of that Ilk v Freeland. [1666] Mor 646 (28 February 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0200646-044.html Cite as:
[1666] Mor 646
Subject_1 ARBITRATION. Subject_2 Formalities of the Deed of Submission and Decree-Arbitral.
Freeland of that Ilk v. Freeland
Date: 28 February 1666 Case No. No 44.
A decree-arbitral was reduced, because some of the arbiters had subscribed after the time limited, though others had signed before it elapsed; and all had given command, before elapsing, to sill up the blank in terms concerted.
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There being a submission made by James Freeland, and his Son, to some friends, jointly, all agreeing in one voice, and impowering them to fill up the blank betwixt the date of the submission, which was 25th November 1663; and the last January 1664; the blank being filled up and subscribed by the arbiters, James Freeland the father, alleging to be leased thereby, intents a reduction of the said decreet, upon this reason: 1mo, That the decreet was subscribed after expiration of the term contained in the submission, at the lead by some of them, and so not jointly by them all, conform to the terms of the submission: Whereunto it was answered by the defenders, That the decreet and submission are opponed, subscribed by all the arbiters; and if the pursuer will allege, that this decreet was subscribed by the hail arbiters, after the expiring of the submission, the defender is content to find the allegeance relevant, of consent; and albeit it had been subscribed by one of the arbiters, after expiring, yet being subscribed by a quorum, before expiring (which they might draw up in write) cannot be reduced. 2do, Offers to prove the haill arbitrators command on the haill articles of the said decreet, before expiring; which they might draw up in write after the expiring; and that Baruchan, one of the arbitrators, ratified the same thereafter.—To which it was replied, That the submission being made to four parties, jointly, who were all to agree in one voice, and to pronounce, and insert the said decreet; so that the major part was no quorum, who could pronounce; seeing four concurring in one voice are only empowered. And as to Baruchan's ratification after the expiring, it is answered, The reason is opponed, and that no submission of one of the arbiters, after expiring of the day, could be sufficient, or supply the same. 2do, Albeit the haill arbitrators had, within the day, made a minute of the decreet, and subscribed the same; the same might have been extended after elapsing of the day, there being no difference, quoad substantialia, betwixt the minute and the decreet so extended; yet it is absurd to pretend, that a verbal communing among arbitrators, within the time limited by the submission, could, after elapsing of the day, be extended in a decreet, there being no minute subscribed by the arbitrators within the day.——The Lords found the reason of reduction relevant and proven; and therefore reduced.
