Scottish Court of Session Decisions

Subject_1 ARBITRATION.
Subject_2 Formalities of the Deed of Submission and Decree-Arbitral.

Watson
v.
Milne

Date: 18 November 1696
Case No. No 47.

Found as in No 35. and No 45. that a decree-arbitral was null, being subscribed after the submission was expired, though pronounced in due time.

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In a case of slander, in calling one a thief, pursued by Mr David Watson against Milne, who was ordained by the Commissary of St Andrews to crave Mr David's pardon before the congregation, and to pay a pecuniary mulct; the reason of suspension of this decreet was, a transaction by a submission and decreet-arbitral following thereon.—Replied, The decreet-arbitral was null. because, 1mo, Though it was pronounced within the time prescribed in the submission, yet it was not filled up, nor subscribed by the arbiters, till long after it was elapsed. 2do, That it was referred to four arbiters, who were to chuse an oversman; and yet this decreet is given out only by two who took on them to nominate an oversman, the other two dissenting.—It was answered to the first, That law required no more but the pronouncing the sentence before the day elapsed; but it might be extended at any time. To the second, Though two proceeded to elect an oversman and determine, yet one of the two was one of Watson's arbiters; and so he concurring it was sufficient.—The Lords thought them both informalities, but laid most stress on the last; because, at least, there should have been three, as the major part of the arbiters, who should have agreed in the electing the oversman; for, if two had the power, then, by the same role, the other two might have as well chosen another oversman; and so this could never explicate the business; therefore the Lords rejected the decreet-arbitral as null.—Then it was objected against the probation in the Commissary's decreet, that each deposition was not signed by the judge, but only once for all at the foot of the page. 2do, That the testimonies wanted these words in the end, ‘as they should answer to God,’ and allenarly bore, what they said was true upon their conscience.—Answered to the first, That the whole depositions being on one side of paper, the judge's signing the botom might suffice, as if every individual testimony had been subscribed by him. To the second, Their declaring upon their conscience was equivalent; and at the beginning of the deposition it bore they were sworn.——Yet the Lords thought the precise formula in oaths ought to be observed.—But in regard it was alleged, This was the peculiar form of examination in that Commissariot, and that the Lords had formerly sustained their depositions, they forbore till that interlocutor should be sought out.—It may be very unfit to allow various forms in adhibiting oaths, and that is what the Quakers plead for, that their declaration, ‘ as in the presence of God,’ may be accepted in place of the oath, and which the English Parliament has allowed lately. (See solidum et pro rata.)

Fol. Dic. v. 1. p. 50. Fount. v. 1. p. 733.