A submission was entered into, to two arbiters, and, in case of difference, to a third, as oversman, provided one of them agreed with him. Decree was pronounced by one and the oversman, which was sustained, although no mention that the arbiters had differed, or that the oversman had heard paties.
Click here to view a pdf copy of this documet : PDF Copy
William Christie, Shoemaker, Thomas Dunsmoor, merchant, and Robert Finlay, tanner, all in Glasgow, entered into a contract of copartnery, for making and selling shoemaker's work; and a considerable trade was carried on, both by way of exportation, and furnishing the home consumpt.
The society was dissolved, and several questions arising amongst the parties, they were submitted to James Loudoun and James Spreull, merchants in Glasgow, and Andrew Cochran, merchant there, oversman, on these terms:
“That whatever the two arbiters, or, in case of variance, any one of them, with the said Andrew Cochran, should adjudge or determine against the parties, on the back of the submission, or on a paper apart, they bound and obliged themselves, their heirs, &c to pay, fulfil, and perform.”
The oversman, and one of the arbiters, pronounced a decreet against Christie, which was suspended.
Pleaded for the suspender: That the decreet did not bear that the arbiters differed between themselves; nor was there any reference by them to the oversman; and this was a nullity in the decreet; 1716, Abernethy of Mayen, against Gordon of Ardmelly, No 56, supra; the case of one Maver 1720; and January 1721, Doctor Middleton against the King's College of Aberdeen.
2do, The dispute being concerning an accompt and reckoning, it was agreed by the submission, that John Lecky, taylor in Glasgow, should examine the accounts, and make remarks upon them; and, upon consideration of these remarks, the arbiters should determine; but in fact the oversman never law these remarks.
3tio, The oversman never heard the suspender.
Pleaded for the charger: That no doubt a submission might be so conceived as to make a reference by the arbiters to the oversman in case of variance necessary, but this gave a handle to any of the arbiters to blow up the submission, and, by the stile of the present one, the oversman and one of the arbiters, in case of their variance, was authorised to determine: Now either they varied, and then it was the case proper for the oversman's interposition; or they agreed, and the decreet was the opinion of all the three.
As this question depended on the tenor of the submission, there could be no arguing from the decisions, unless the tenor of the several submissions were set forth, and that in Dr Middleton's case was reversed; and the Lords found otherways in a case between Mr Thomas Rigg and Mr Hugh Baillie advocates.*
It appeared by the proof, that the suspender, having been sent for to meet with the oversman and arbiter, was not at home, and that the oversman never saw Lecky's remarks.
A good deal was said in the argument concerning the equity or iniquity of the decreet, but the Lords agreed they could not reduce nor suspend solely on iniquity.
The Lords, 27th June, sustained the reasons of suspension.
On a bill and answers, they altered and repelled the reasons.
Act. Ferguson & W. Grant.Alt. Lockhart & Hamilton-Gordon.Clerk, Murray
Fol. Dic. v. 3. p. 36. D. Falconer, v. 1. p. 125
* This is probably the case which is alluded to by Lord Bankton, B. I. tit. 23. § 9. Neither it, nor those of Maver, and Middleton, above-mentioned, have been yet found. Examine Appendix and General List of Names.
