Scottish Court of Session Decisions

Subject_1 ARBITRATION.
Subject_2 Reduction of Decree-Arbitral.

Robert Arthur, Merchant in Irvine,
v.
John Callin, Merchant in Drogheda, and Mungo Smith of Lochmark, his assignee

Date: 16 July 1773
Case No. No 69.

In a reduction of a decree-arbitral, found competent to prove, by the oaths of the arbiters, and their clerk, that it was at the solicitation of one of the parties, the award was conceived, so as to give him access to the oath of the other, upon an article of his claim, which otherwise it was the intention of the arbiters to have cut down.

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In May 1767, Callin and Arthur went into a submission to two arbiters for settling their mutual claims.

Amongst other claims against Callin, Arthur had produced before the arbiters two bills drawn by him, in 1759, upon, and accepted by Callin, one for L. 200, and the other for L. 250 Sterling. These were objected to, as not being good documents of debt against Callin. And the arbiters, by one branch of their decree-arbitral, pronounced in August 1768, found that these bills are not subsisting debts against Callin, unless Arthur prove, by his oath, that he received value from him, Arthur, for the said bills, and never accounted to him therefor; which they reserved power to the said Robert Arthur to do, having allowed him no credit therefor in fixing the sum owing by him to Callin. This sum was upwards of L.1000 Sterling.

Arthur brought a reduction, and contended, that not only was the award iniquitous, in cutting down these vouchers, but it was also totally void, in respect that it had not finally determined the whole claims of the parties, but left the article of the foresaid two bills undetermined, and open to after altercation.

The Lord Ordinary, before answer, allowed Callin and Smith a proof, omni habili modo quo de jure, of their allegation, that it was the intention of the arbiters to cut down the bills without any reservation; but that the giving access to Callin's oath was done upon the solicitation of Arthur himself. And they having offered to prove the fact by the oaths of one of the arbiters, and of the clerk to the submission, this produced a reclaiming petition upon the point, How far that proof was competent?

Argued for the pursuer: As the arbiters have not finally determined his claim respecting the two bills, but have left the same to be followed out by an action at law, that the decree-arbitral is liable to a clear ground of challenge upon that account; in which view of the case, it is not competent for the defenders to resort to evidence other than the writing itself, in order to support it against that ground of challenge.

By the submission it is expressly agreed, that the decree-arbitral should be in writing; and the submission contains a clause of registration; that, therefore, it was the agreement of parties, that the Written decree-arbitral, and that alone, should be binding upon them: That it is a general rule, without exception, that, where writ is essential, whether to the constitution, or in modum probationis, or where it is rendered such by the agreement of parties, the law has repudiated parole evidence, even for explaining any clause of doubtful meaning; whereas the tendency of the proof, that is now offered, is to make the arbiters speak a different language than what appears upon the face of the decree-arbitral itself.

Answered: The proof, the competency of which is disputed by the pursuer, was at first allowed ex proprio motu of the Lord Ordinary, the fact having been stated in the course of the proceedings; and although the defenders have endeavoured to support the justice of that judgment, which was very properly calculated to remove any doubt in the question, How far the decree-arbitral ought to be supported? yet, even independently of any proof, there is no just or relevant ground upon which this decree-arbitral could be set aside or opened. At the same time, the facts admitted to proof were justly viewed as material by the Lord Ordinary, because, if proved, it will establish a personalis exceptio sufficient to bar the pursuer from objecting to the decree-arbitral, as supposed defective or imperfect on the foresaid account.

The pursuer's reasoning, in opposition to the competency of this proof, is totally inapplicable to the present case. The tendency of the proof that has been allowed, is not to alter the decree-arbitral in any one article, or to put a construction upon it different from what the words of it, as now conceived, do naturally import; but it is to establish a fact, which, in the nature of the thing, can only be established by parole evidence, and which, if proved, must have the effect to bar the pursuer from pleading the objection that is now offered against the decree-arbitral under challenge. If the fact be, that it was at the earnest request of the pursuer himself that the decree-arbitral was conceived in the terms it now stands, it would be contrary to good faith, and both to law and reason, to allow the pursuer to lay hold of that circumstance for overturning the decree-arbitral altogether.

The Lords adhered to the Ordinary's interlocutor.

Act. Dean of Faculty, R. Cullen. Alt. R. M'Queen, W. Wallace. Clerk, Gibson. Fol. Dic. v. 3. p. 37. Wallace, No 81. p. 205.