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Scottish Court of Session Decisions >>
William Short Wright in Edinburgh, v William Habkin Belt-Maker there. [1711] Mor 16867 (3 July 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor3816867-085.html
William Short Wright in Edinburgh, v. William Habkin Belt-Maker there
Date: 3 July 1711 Case No. No. 85.
A decree-arbitral found null for want of the writer's name and designation.
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In the suspension of a charge upon a decreet-arbitral, at the instance of William Short, against William Habkin, the Lords found it to be a nullity in a decreet-arbitral, that it wanted the writer's name and designation, albeit it was alleged for the charger, that the 179th act, Par1. 13, James VI.,in anno 1593, which requires the writer of all writs and evidents to be named and designed, relates only to private writs, such as original charters, contracts, obligations, reversions, assignations, particularly therein enumerated, and not to decreets-arbitral, which are not mentioned, nor of the nature of those mentioned, and must have the same effect with other decreets, or public writs; for though a decreet-arbitral is not a judicial act in a strict sense; yet arbiters being vested by law with sufficient authority to determine in matters submitted to them, their decreets have all the effects of any judicial decreet, and may in some sense be reckoned judicial acts. “Arbitraria ad similitudinem judiciorum redacta sunt, quatenus idem utrobique agendi, excipiendi, probandi, Ordo, idem litis finiendæ tempus, L. 1. D. De receptis et his qui arb. Again, Arbiters being authorized to proceed with more latitude than ordinary Judges, viz. secundum æquum et bonum; and seeing the act of regulation 1695, declares decreets-arbitral unquarrellable upon any cause or reason whatsoever except that of corruption, bribery, or falsehood; such decreets ought to meet with all imaginable allowances of favour. In respect it was answered for the suspender, That only acts of office, as writs under the hands of common clerks or notaries relating to their respective offices, require not the inserting the writer's name; and a decreet-arbitral is not a public deed of that nature, but only a private writ, containing the opinion and judgment of some knowing honest man, or men in a private capacity, concerning the differences of parties referred to him or them; and execution passeth upon decreets-arbitral, not by public authority, but by consent of the submitters signing a clause of registration to be subjoined to the arbiter's sentence. The L. 1. D. De receptis et his qui Arbitr. is only a counsel or direction to arbiters how to proceed; for a decreet-arbitral could not be reduced for not observing that form of process; so that there can remain no doubt but decreets-arbitral come under the general of all writs and evidents in the act 1593, or of all probative writs in the act 5, Parl. 3, Ch. 2. Nor is it to the purpose, that decreets-arbitral are not particularly mentioned in the act 1593; for dispositions, renunciations, and discharges, (which are unquestionably private rights) are also omitted. The act of regulation 1695 doth indeed hinder decreets-arbitral to be reduced, except for corruption, bribery, or falsehood; but this is not a decreet-arbitral, in so far as it is not duly formed and signed.
