Wm. Johnstone, Esq. of Lathrisk v. John Cheape, Esq. of Rossie, and Andrew Thomson, Esq. of Kinloch [1817] UKHL 6_Paton_339

UKHL
Wm. Johnstone, Esq. of Lathrisk v. John Cheape, Esq. of Rossie, and Andrew Thomson, Esq. of Kinloch
[1817] UKHL 6_Paton_339 · 1817-07-10
Held, that there were no circumstances stated here inferring corruption, falsehood, and bribery, to warrant the reduction of the decree-arbitral; and that any excess ought not to affect the validity of the decree-arbitral, farther than to rectify the said excess, leaving the decree-arbitral unimpeachable in all other respects.This appeal has reference to the Rossie drain alluded to in the appeal which immediately follows this, and which belonged to the respondent, Mr Cheape.

Page: 340 ↓

The respondent saw the advantage which the deepening of the Eden would have. It would give him an additional level, by means of which he would be enabled to deepen his drain, and draw off the whole water in Rossie Loch. He, therefore, proposed to the appellant, at a time when he was not acquainted with country matters, and had newly succeeded to his estate, that the deepening of the Rossie drain would be a benefit to both—the appellant's lands of Bowhouse Moss, of about sixty acres, skirting part of the drain.Vide next Appeal.Accordingly, a deed of submission was entered into the same manner as had been done in regard to the deepening of the river Eden, between Mr Cheape on the one hand and the appellant on the other—the arbiter appointed being the other respondent, Mr Thomson. This submission bound them to deepen the drain, “and to keep the same redd and clear, and in good order in all time thereafter, at our mutual expense, which shall be proportioned according to the benefit accruing therefrom to our respective properties,” and the submission “empowers the arbiter to decide and determine what proportion each of us shall pay of the expense of the operations already executed upon the Rossie Drain,” as well as “what is to be hereafter done.”After the submission was executed, the works were commenced, and the drain was deepened eighteen inches. When finished, the appellant heard that the arbiter was about to pronounce his award. The appellant applied to the arbiter to know if he was to communicate the notes of his opinion, and to allow parties to be heard upon the subject. The answer made was, that the arbiter meant to make no such communication.It appeared, that the quantity of ground drained by means of the Rossie Drain, belonging to Mr Cheape, amounted to 300 acres, while the number of acres belonging to the appellant was only sixty.There were several objections the appellant had to the items constituting the entire cost of the drain, but which the arbiter refused to give effect to. The entire expense cost £2105, 2s., and of this sum the appellant was decerned to pay £770, which was more than the due proportion estimated, according to the benefit derived by him from the drain.On the other hand, it was proved, that the arbiter had been at much pains to satisfy himself with regard to the benefit which Captain Cheape and the appellant would derive from the operations on the drain, and weighed in his mind,

Page: 341 ↓

But, by the submission, it appeared, that the matter of deepening the drain was confined “from the point where it falls into the Eden, up to the march between our properties at Bowhouse Moss.” A very considerable portion of the Rossie Drain extends beyond the last-mentioned point; and Mr Cheape had included the expense of that part in the general account. Therefore, certain items of the account were for things done on the drain beyond the limits of the submission.Dec. 17, 1813.May 12, 1814.June 7, 1814.July 1, 1814.The appellant brought an action of reduction of the decree-arbitral, on the grounds of partiality, corruption, and interest, on the part of the arbiter. The respondent, Cheape, having caused a charge to be given on the decree-arbitral, a suspension was brought, and these two actions having been conjoined, the Lord Ordinary (Gillies) pronounced this interlocutor:
“Having heard parties procurators in this action of reduction, and in the suspension conjoined therewith in the reduction, repels the grounds and reasons of reduction, assoilzies the defenders, and decerns; and in the suspension, finds the letters and charge orderly proceeded, repels the reasons of suspension, and decerns.”
His Lordship afterwards refused two representations. On reclaiming petition to the First Division of the Court, they were pleased to adhere. *Against these interlocutors the present appeal was brought to the House of Lords, the appellant pleading nearly the same reasons as in the succeeding appeal.After hearing counsel,Journals of the House of Lords.The Lords spiritual and temporal in Parliament assembled, Find, that the arbiter, in this case, had no authority, according to the terms of the submission, to decern or award, that the appellant should be charged with, or pay the following sums, or charges, or any of them, viz., “Two sums contained in the accounts of John Aitken produced in the said cause, the one being the item,” “To taking out the said stream,” and amounting to £31; the other, “To clearing Eden , from thence up to

Footnote

* The Court decided against the appellant, on the ground that no decree-arbitral is reducible, except on the ground of corruption, bribery, or falsehood.

Page: 342 ↓

Counsel: For the Appellant, Sami. Romilly, Geo. Cranstoun. For the Respondents, John Jardine, A. Clephane.