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Scottish Court of Session Decisions >>
Wallace v Wallace. [1672] Mor 639 (23 February 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor0200639-030.html Cite as:
[1672] Mor 639
Subject_1 ARBITRATION. Subject_2 Time of Endurance.
Wallace v. Wallace
Date: 23 February 1672 Case No. No 30.
A submission blank, in the endurance lasts but for a
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Wallace of Carnall pursues a reduction of a decreet-arbitral, pronounced betwixt him and Captain Kennedy, by which he was found debitor to Captain Kennedy in 5000 merks; and which decreet was now assigned to Edward Wallace. The first reason of reduction was, because the submission being subscribed, and delivered to the arbiters, with a blank endurance, they had unwarrantably filled therein an endurance for three years after the submission; whereas, being blank, it doth only proport the endurance of a year; and the decreet-arbitral being pronounced near three years thereafter, is ultra vires compromissi. 2do, The decreet is null and unjust by enorm lesion, in that the pursuer is decerned in 5000 merks, without mention of any cause, but only in general; neither can there be any thing produced to instruct that he was debtor at all. It was answered, 1mo, That neither reason is relevant against an assignee, who seeing a clear decreet-arbitral, which requires no formalities, nor solemnities, he was obliged to enquire no further; neither can the cedent's oath prove against him, that the submission was subscribed blank.
The Lords ordained the arbiters oaths to be taken, whether the submission was blank in the endurance, when it was delivered; and found, that if it was blank in the endurance, it endured but for a year: And found, that seeing it was only general, without mentioning any particular cause, that it was null, unless the defender astruct it, by proving the cause thereof.
