John Colquhoun v. John Corbet, Esq. [1784] UKHL 2_Paton_626

UKHL
John Colquhoun v. John Corbet, Esq.
[1784] UKHL 2_Paton_626 · 1784-07-27
and also of falsehood, under the act 1695, and that the decree arbitral had stated falsely that there had been a difference of opinion between the arbiters, when there was none. The latter reason of reduction repelled by Court of Session. In the House of Lords affirmed, without prejudice to the discussion of the other reasons, in respect the decree arbitral appeared so partial as to amount to constructive corruption in the arbiters, and therefore reducible under the act 1695. Also held, that parole was competent to expiscate whether a difference of opinion took place, although the decree arbitral set forth that fact.Disputes having arisen between a landlord and tenant, regarding a breach, and not implement of the stipulations of the lease on the part of the landlord. Actions were raised to have the tenant's rights ascertained, which were submitted to two arbiters, mutually chosen by deed of submission. There was a clause in the submission, providing, that in case of a difference of opinion, the oversman named was to be called in. A decree arbitral was pronounced, setting forth, that in consequence of a difference of opinion, the oversman was called in, whereupon the arbiters, along with that oversman, pronounced judgment.—A reduction being brought of the decree on the ground of corruption,

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A lease was let by the respondent to the appellant on 20th July 1768, of the lands of Gartcosh, as then lately possessed by Robert Thomson , for the period of 38 years. The term of entry was at Whitsunday 1769, the landlord becoming bound to erect and build complete houses and offices on the farm, before that term, the tenant binding himself to pay £65 sterling for the first nineteen years, and £80 for the remaining nineteen years; and likewise to keep the houses and fences in proper tenantable and fencible condition, during the whole years of the lease, and leave them so at his removal.The landlord, instead of building the houses and offices before the term of entry, only began to build these at that term, and, in consequence of his circumstances and inability, the building even then went on slowly. The tenant, on his part, subdivided the farm, fenced and enclosed, and laid out a great deal of money in enclosures. Before the rent fell due, the landlord had generally received part payment in advance, for the purpose of forwarding the buildings. Several payments of this nature were even not so applied, but to other purposes; and the houses and offices were still unfinished. Disputes thus arose between them. The tenant resolved not to perform his part, namely, pay his rent, until the landlord had performed his—the nonperformance of which, for the last ten years, had occasioned the tenant great damage, besides the illegal and oppressive diligence of poinding, &c. raised against him. These disputes, including an attempt of the landlord to take twenty acres of land from him, became the subject of arbitration in 1776, but no award was pronounced. Thereafter actions were resorted to, and these actions, embracing these disputes, were submitted to arbitration “of Robert Gray, Esq., and James Carse, arbiters mutually elected by the parties, all claims

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The award which followed this submission sets forth, “That I, the said Robert Gray, and the said James Carse, having, in consequence of our acceptance of the foresaid submission, met with the parties submitters, received in their claims and answers, and taking some steps towards determining the matter submitted, but having differed in opinion as to some points , called in to our assistance me, the said David Muir, as oversman foresaid; and me the said Robert Gray, and David Muir, having fully considered the claims, answers, replies, &c., and other productions given in by the parties—the processes mentioned in the submission, met upon the grounds of the farm of Gartcosh, belonging to the submitter, John Corbet, perambulated the marches, viewed the fences, and many times met with the said James Carse and the submitters, when they were heard viva voce , as well as with the said James Carse by ourselves.”The appellant brought a reduction of this decree arbitral, on the ground chiefly, 1st, That the award asserted falsely , that the arbiters had differed in opinion. 2d, No difference having taken place, the umpire had no right to interfere. These were further amplified in the argument as follows. That there was no difference of opinion between the arbiters—that the arbiter and oversman who signed the decreet arbitral, had not before them the processes therein mentioned, nor many of the papers essentially necessary to enable them to form a just opinion on the merits of the case, and therefore, what the award sets forth on these subjects is false; and falsehood being averred against the arbiters, it was reducible under the act 1695. That the arbiters not having differed in opinion, the oversman had no right to interfere, and acted without any power or authority. That the decreet or award, was made after the submission or arbitration bond had expired, and the decreet was therefore void. That it was partial and unjust, and ought to be set aside. It had

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Dec. 5, 1783

After the arbiters were examined by order of Court, the Lords pronounced this interlocutor:
“The Lords having advised this petition with answers, and the depositions of James Carse, Robert Gray, David Muir, and George Smith, taken in consequence of a former interlocutor in this cause, repel the reasons of reduction of the decreet arbitral challenged, assoilzie the defender, and decern; conjoin the three several suspensions brought by the pursuer against John Corbet the charger, with the process of reduction; find the letters orderly proceeded in these processes, and decern; find John Colquhoun, the pursuer and suspender, liable in full expenses of this process.”
On reclaiming petition the Court adhered.

Dec. 29, —

Against these interlocutors the present appeal was brought.Pleaded for the Appellant .—The decree arbitral is void and null, being only pronounced by one of the arbiters and the oversman, without the intervention of the other arbiter, and without any regular devolution of power upon the oversman. There could be no regular devolution of the powers of the arbiters upon the oversman, unless by writing under the hands of both arbiters. The common law of Scotland on this subject, as ascertained by a multiplicity of decisions,

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Pleaded for the Respondent .—The only doubt which the Lord Ordinary or the Court ever entertained in regard to this cause, was in regard to the statement that there was no difference of opinion on the part of the arbiters, and therefore that the umpire had no right to interfere. But as that point has been fully and satisfactorily expiscated by the examination of the witnesses, the Court had no hesitation in pronouncing the judgment to which it came. No doubt the decreet arbitral set forth this fact, but this did not, and could not exclude parole evidence where the truth of that fact was questioned. And the want of written evidence to establish that difference of opinion between the two arbiters, does not render parole proof by witnesses incompetent to establish that fact, because no such rule of evidence is established by any law or practice in Scotland, and assuredly there is no decisions supporting such a doctrine. Even if there were, the particular circumstances of this case would justify parole. Mr. Carse, one of the arbiters, positively refused to sign any opinion in writing. Looking therefore to the circumstances, that during this litigation the respondent gets no rent for his farm, which the appellant keeps in possession, and has so

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After hearing counsel,Lord Chancellor Thurlow ,
“My Lords,
“I am of opinion that, in the circumstances of this case, the umpire had a right to interfere; at sametime, I think Carse was right in insisting that the damages should have been considered from the beginning of the lease. That the decreet appeared so partial that it amounted to constructive corruption in the makers of it; and therefore it was reducible, in terms of the act and regulation 1695. I therefore move that the interlocutor be affirmed, without prejudice to Colquhoun's impeaching the decreet, upon any head, but want of power in the umpire.”
“It was therefore ordered and declared that the case provided for in the submission, viz. the case of the two arbiters, Robert Gray and James Carse, varying in opinion, is sufficiently established, and that thereupon David Muir and Robert Gray had competent authority, according to the terms of the said submission, to give forth and pronounce a decreet arbitral between the parties to the submission. And it is ordered and adjudged that the interlocutors complained of be affirmed, without prejudice to the pursuer insisting on his summons of reduction upon any other head of objection to this decreet arbitral, or other proceedings under the said submission.”
Counsel: For Appellant, Andrew Crosbie, W. Cha. Little. For Respondent, Ilay Campbell, Ar. Macdonald.