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.

David Jack
v.
George Cramond

Date: 4 March 1777

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In a cause, David Jack against George Cramond, for reducing a decreet-arbitral, Lord Hailes, Ordinary, found, (19th December 1775,) “That the arbiters, by decreeing the sum of £18: 15: 6d. sterling to be paid for their own fees, for the fees of their clerk, and for incidents in the course of the submission, had exceeded the powers conferred on them by the submission, and did a thing of evil example, and which, if once established by authority of a Court of Justice, might tend to the grievous oppression of the lieges. But finds, That this decerniture for £18: 15: 6d. is totally distinct from and unconnected with the other parts of the decreet-arbitral, and could have no influence thereon; and, therefore, that the decreet-arbitral may, and ought to subsist, in all its other parts, notwithstanding this error and excess; and, therefore, sustains the reasons of reduction as to the said sum of £18: 15: 6d., but repels the reasons of reduction quoad ultra.

On a bill, and answers, the Lords adhered, (20th July 1776.)

But, on a second bill, and answers, and it appearing that, of the above £18: 15: 6d., twelve guineas had been stated for the arbiters,—though not paid them,—at least they so averred; the Lords found it a practice illegal and corrupt, and therefore they reduced the decreet-arbitral, and found expenses due by the party. They would have found them due by the arbiters,—but they were not parties to the process. (18th December 1776,) “Found that the arbiters decerning twelve guineas for their own trouble was illegal, and corrupt; and therefore sustains the reasons of reduction of the decreet-arbitral, and reduce, decern, and declare accordingly. Found expenses due, and ordain the pursuer to give in an account thereof.”

On advising another reclaiming petition and answers; the Lords continued to be of opinion, That, although it was usual, and not unlawful for parties to give, and for arbiters to accept of a gratification for their trouble,—yet that, de jure, they were not entitled to any; much less could they award such in their own favours. But, as in this case, it appeared to have been done from ignorance of the law, and from no bad intention; it did not merit the epithet of corrupt: they therefore returned in effect to the Ordinary's interlocutor, annulling the decreet-arbitral, so far as it related to the decerniture of twelve guineas to the arbiters; but supporting it quoad ultra. (4th March 1777.)