John Pitcairn v. David Drummond [1825] UKHL 1_WS_194

UKHL
John Pitcairn v. David Drummond
[1825] UKHL 1_WS_194 · 1805-07-12
A landlord having obtained and extracted a decree of irritancy of his tenant's lease, in which there was no stipulation as to meliorations; and thereafter entered into a submission with him of “all claims, questions, disputes, and differences of every kind depending and subsisting betwixt them, upon any account, transaction, or occasion whatever, preceding the date hereof;” and the arbiter having found the tenant entitled to a sum for meliorations;—Held, (affirming the judgment of the Court of Session), That he had not exceeded his powers.By a tack, dated 12th July 1805, Drummond became tenant of the Mains of Piteairns, the property of the appellant Mr Pitcairn, for 19 years, under which he took possession. By a clause in the tack it was provided, that the tenant should take the houses and fences in the state in which the outgoing tenant should leave them; that the landlord should make a certain

Footnote

* In the appeal case for the appellant it is stated,— “In pronouncing the interlocutor now submitted to review, the appellant understands the Court to have proceeded upon various grounds:—1. That the appellant had failed in his duty to the creditors, as well as to the Court, by allowing a party to be received as cautioner for the composition who was not able to discharge the debt and the expenses attending the sequestration; and also, for having stated in the petition for approval of the composition, that caution had been found for payment of a composition, and that the expenses had been paid or provided for, when it afterwards turned out that neither of these were the case. 2. That he had forfeited his claim against the creditors in consequence of his having brought the sequestration to a close, by carrying through the bankrupt's discharge, and extracting the decree, without receiving payment of his expenses. 3. That he ought to have brought his action, in the first instance, against the trustee as his original employer, and as the person primarily liable to him. And, 4. That there was collusion between him and the trustee, in respect that the trustee had already, in point of fact, made payment to the appellant of that very account which he is now endeavouring to recover from the creditors.”

Page: 195 ↓

Drummond having incurred arrears of rent, Pitcairn, in 1810, obtained a warrant of sequestration, and an order upon him to find caution in terms of the Act of Sederunt 14th December 1756; and he having failed to do so, decree was pronounced against him for the arrears, under which he was incarcerated, and at the same time he was decerned to remove. This warrant of removal was not executed; and Drummond having incurred a farther arrear of two years' rents, Pitcairn raised a new action against him, concluding for a declarator of irritancy of the tack, and for a summary removal. On the 26th of February 1812 he obtained a decree to that effect, which was extracted. Thereafter, on the 28th of April, an arrangement was entered into between them, by which, on the one hand, Drummond, in consideration of being allowed to remain in the farm till November, executed a renunciation of the tack; “but declaring always, that the granting of these presents shall in noways hurt or invalidate, but shall, on the contrary, corroborate and strengthen the aforesaid decree,” &c.; and, on the other hand, a mutual agreement was made in these terms:—opinion; and the award of either of the arbiters, or oversman, in their order, shall be obligatory on both parties, and shall be final. 3dly, That these two articles shall regulate the parties, if it be found possible, but if it should be found necessary or advisable, Mr Pitcairn shall nevertheless be at liberty to sequestrate for his security, or adopt any similar measure; and, in like manner, if either party shall have omitted any thing herein, it shall be understood and construed to fall under the above submission, that every thing may be fairly adjusted betwixt the parties, without trouble or expense.”
“At signing the renunciation by David Drummond to Mr Pitcairn, it is agreed on by both parties, 1st, That Mr Drummond shall be allowed to sell his crop and stocking, in his own name, at or about the term of Lammas for the crop, and Michaelmas for the stocking, and allowing a credit to purchasers on security till Candlemas next; but all the bills are to be made payable directly to Mr Pitcairn, or his factor for his behoof, and to be delivered to them in payment of the arrears of rent; for which purpose Mr Drummond does hereby expressly assign and convey them to Mr Pitcairn, his heirs or successors. 2dly, That every obligation incumbent on the tenant, and every obligation incumbent on the proprietor, either as constituted by the present leases or otherwise, shall, if these parties cannot adjust them among themselves, be made the subject of a reference to two respectable men, to be mutually chosen, with power to them to choose an oversman, in case of difference of

Page: 196 ↓

A dispute having taken place as to the terms in which the submission should be expressed, Pitcairn applied to the Sheriff of Perthshire for a warrant of sequestration; in defence against which Drummond founded on the agreement, in reference to which the Sheriff pronounced this interlocutor:—by the said agreement, the proprietor, if it shall be found necessary or advisable, was to be at liberty to sequestrate for his security, or adopt any similar measure, it was agreed that the tenant should be. allowed to sell the crop and stocking in his own name, at or about the term of Lammas for the crop, and Michaelmas for the stocking, and allowing a credit to purchasers on security till Candlemas next; but all the bills were to be made payable directly to the proprietor, or his factor for his behoof, to be delivered to them in payment of the arrears of rent; and as the defender declares his readiness instantly to concur in the sale of the stocking, and to concur with the pursuer as to the proper time most likely to ensure the best price, the Sheriff recommends to the agents for the parties immediately to make the necessary arrangement for that, purpose, with certification to the defender, that if he shall fail to do so in the course of this day, warrant will be granted to-morrow to the pursuer to dispose of the effects by public roup under the sequestration, that the roup may be advertised at the parish churches in the neighbourhood on the day following, so as to avoid any farther delay, when the circumstances of the case will not admit of it.”
“Finds it instructed by the written agreement betwixt the parties, of 28th April last, executed at the same time with the renunciation, that every obligation incumbent on the tenant, and every obligation incumbent on the proprietor, either as constituted by the present leases or otherwise, were, if these parties could not adjust them among themselves, to be made the subject of a reference to two respectable men, to be mutually chosen, with power to them to choose an oversman in case of difference of opinion, and the award of either arbiters, or the oversman, in their order, should be obligatory on both parties, and should be final; and in case either party should have omitted any thing in the said written agreement, it should be understood and construed to fall under the above submission, that every thing might be fairly adjusted between the parties, without trouble or expense: Finds, that as, in carrying the submission into effect, it is not essentially necessary that the agreement to be executed should contain a full narrative of what preceded it, or should enter into a detail of the mutual claims of the parties, the arrangement agreed upon will be best carried into effect, according to its true spirit, by a general submission, not containing any particular narrative, nor. particularizing the claims of the parties, all which can, with equal propriety, be fully brought into the view of the arbiters, in their mutual claims and written pleadings, in the course of the submission; and appoints the draughts of the proposed submission to be adjusted by the agents for the parties on the above principles, and thereafter to be extended and signed without delay: Finds, that although,

Page: 197 ↓

In consequence of this interlocutor, a submission was executed on the 30th of November 1812, in these terms:—
“John Pitcairn, Esq. of Pitcairns, on the one part, and David Drummond, his tenant, or lately his tenant in the farm and mill of Pitcairns, on the other part, have submitted and referred, and do hereby submit and refer, all claims, questions, disputes, and differences of every kind, depending and subsisting betwixt them, upon any account, transaction, or occasion whatever, preceding the date hereof, to the amicable decision, final sentence, and decreet-arbitral, to be given forth and pronounced by James Duncan, tenant at Mains of Cargill, and Thomas Dow, farmer at Cultmalundy, arbiters mutually and indifferently chosen by them; or, in case of difference of opinion betwixt the said arbiters, to any oversman to be named by them,” &c.
Among other claims which were made by Drummond, was one for the price of the reversion of his lease, according to its improved value, for the thirteen years for which it would have endured had there been no decree of declarator of irritancy and of removal. This demand was resisted by Pitcairn, on the ground that it did not fall under the submission; but a proof having been allowed by the arbiters, he adduced witnesses in

Page: 198 ↓

Thereafter, a creditor of Drummond having arrested in the hands of Pitcairn, and brought a forthcoming, Pitcairn raised an action of reduction of the decree-arbitral, in support of which he maintained, That as the claim for meliorations had never been made by Drummond prior to the date of the submission, and did not fall under the terms of the lease; and as it neither was nor could be contemplated by Pitcairn at the date of executing the submission, seeing that he had acquired the absolute right to the farm by virtue of the decree of irritancy and removing, and was under no obligation to pay any thing for the reversion, or for meliorations; the oversman had exceeded his powers in pronouncing decree for such a claim.To this it was answered, That the words of the submission were of themselves sufficiently broad to embrace the claim; that it was one which existed prior to the date of the submission; and as that deed had been framed in terms of the interlocutor of the Sheriff, not particularizing the respective claims, but employing general words, which might include every thing which either party might have omitted to specify in the agreement, the decree-arbitral was binding and effectual.

Page: 199 ↓

The Lord Ordinary found, “That iniquity or injustice, however apparent, affords no ground for setting aside a decree-arbitral; that the submission in question was sufficiently ample, and included every subject of claim or dispute which existed between the parties; and that in the agreement which was subscribed by the parties when the renunciation was granted, every obligation incumbent on the proprietor, as constituted by the leases or otherwise, was referred to arbitration, if the parties themselves could not adjust them; and the submission afterwards entered into by the parties was sufficiently broad to embrace all the points decided by the decree-arbitral;” and therefore repelled the reasons of reduction, and assoilzied Drummond. Against this interlocutor Pitcairn presented a petition; but the Court refused it, without answers, on the 24th May 1822. * Pitcairn then appealed; but the House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed.”

Appellant's Authorities .—4. Ersk. 3. 32.; Steel, June 22. 1809, (F. C.)

Solicitors: A. Mundell— C. Arnott,—Solicitors.