Scottish Court of Session Decisions

Subject_1 PART I.

ARBITRATION.

John Donaldson
v.
William Donaldson

Date: 26 January 1770
Case No. No. 1.

A decree-arbitral, pronounced after expiry of the time limited in the submission, and prorogation thereof, set aside.

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These parties, on the 7th of May 1768, entered into a submission of mutual claims; the limiting clause of which was thus expressed:

“And the said arbiters are fully hereby empowered to fall about doing the business aforesaid, and that betwixt and Whitsunday next; and to give forth their decree-arbitral in a distinct manner, &c.”

Upon the 24th May the parties submitters made up a minute, wherein “they declare this submission current till the 1st day of October next;” but the decree-arbitral was not pronounced or given forth till the 6th of that month; five days after the prorogation.

John Donaldson brought a reduction of this decree; on which the Lord Ordinary pronounced the following interlocutor:

“Sustains the reason of reduction of the decree-arbitral, that the same was pronounced after the expiry of the time limited in the submission and prorogation thereof.”

William Donaldson reclaimed, and argued; that the clause recited related not to the decree, but to the period the arbiters were to fall about doing the business, viz. inspecting the lands, valuing the crop, stocking, &c. and doing other preliminary matters, which, it was to be presumed, never could be accomplished within so short a time as betwixt the 7th of May and the term of Whitsunday; and as the submission therefore was unlimited as to time, it behoved, according to the general rule and practice, to stand in force for a year.

The pursuer answered, That the clause of limitation was express, and that it was triti juris, and had been often decided, that a decree-arbitral, pronounced after the term limited in the submission, was null and void: 28th Feb. 1666, Freeland, No. 44. p. 646; Jan. 1608, Hamilton contra Hay, No. 35. p. 643; 2d Dec. 1680, Pitcairn contra Rose, No. 45. p. 647; 18th Nov. 1696, Watson contra Milne, No. 47. p. 648.

The Lords adhered.

Lord Ordinary, Pitfour. For John Donaldson, A. Fergusson. Clerk, Kirkpatrick. For William Donaldson, A. Lockhart. Fac. Coll. No. 14. p. 31.