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Scottish Court of Session Decisions >>
Sutherland of Cambusavie, Suspender. [1744] Mor 652 (00 January 1744)
URL: http://www.bailii.org/scot/cases/ScotCS/1744/Mor0200652-050.html Cite as:
[1744] Mor 652
Subject_1 ARBITRATION. Subject_2 Formalities of the Deed of Submission and Decree-Arbitral.
Sutherland of Cambusavie, Suspender
1744. Case No. No 50.
The Court were of opinion that a prorogation of a submission required to be attested by witnesses.
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The reason of reduction of a decreet-arbitral, That the prorogation which continued the power of the arbiters beyond the time limited, was not signed before witnesses, having been repelled by the Ordinary; on advising a petition, the Court were of different opinions.
Some were for refusing; for that the proceedings upon a submission were instar judicii, and needed not the solemnities of private deeds; that, for example, interlocutory orders for adducing witnesses needed no witnesses, and that as little did prorogations.
But the more general opinion was, That it was no less necessary formally to attest the subscriptions of the arbiters to a prorogation, than the subscription of the decreet-arbitral itself; that there was a plain difference between interlocutory orders and a prorogation; for that the decree could subsist without these, but not without the prorogation. And one of the Lords remembered a case between the town of Ayr and Bailie Maxwell, where a decreet-arbitral was reduced on that very ground, that the prorogation had not been signed before witnesses.
The petition was appointed to be seen; but the question was afterwards settled by the parties.
