Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 DECREET-ARBITRAL.

Nasmyth
v.
Magistrates of Glasgow.

Date: 18 November 1777

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David Nasmyth, mason in Glasgow, having entered into a contract with the Magistrates of Glasgow, for building a bulwark along Clydeside from the new to the old bridge, and differences having happened, these were submitted to two arbiters; and they having differed, the questions came before an oversman, who pronounced a decreet. Of this decreet Nasmyth brought a reduction. But the Lord Kenet, Ordinary, having found that Nasmyth, the pursuer, had not proved enmity, corruption, or falsehood against the arbiters, and that it could not be taken under consideration whether or not the decreet-arbitral was iniquous;—the Lords in so far adhered, (20th July 1776.) But then, it being alleged that the arbiters had proceeded upon an error in the measurement; the Lords held this to be an error calculi, and remitted to a person named by the Court to take the same of new, and to report. This report being made, it thence appeared probable that the arbiters had proceeded either without a measurement, or upon a wrong one. The Lords, therefore, before further procedure, ordered the Magistrates of Glasgow to produce the measurement either taken by the arbiters or upon which they had proceeded. The Magistrates did so; and, thereupon, the Lords were of opinion that the arbiters had proceeded upon an error calculi, and gave a deduction from the sum in the decreet-arbitral. But, on a reclaiming petition, with answers, they altered, and assoilyied from the reduction of the decreet-arbitral, (18th November 1777.) They found that there was no proper error calculi; that the arbiters had had the mode and extent of the measurement expressly under their consideration, and had determined upon it. Therefore any error which could be charged against them, if there was any, was not an error calculi but iniquity; which was clearly incompetent.