Subject_1 ARBITRATION. Subject_2 Arbiters may be compelled to determine.
Elizabeth White and Husband, v. Walter Fergus
Date: 7 July 1796 Case No. No 16.
One of two arbiters can neither be compelled to decide, nor to name an umpire.
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Walter Fergus, along with another arbiter, accepted of a submission, to which Elizabeth White and her Husband were parties. Mr Fergus, (who was the arbiter appointed by the other party,) finding that the matter in dispute turned upon points of law, of which he was not qualified to judge, declined proceeding in the submission.
On this Elizabeth White and her Husband brought an action against him, concluding that he should be compelled to concur with the other arbiter, either in pronouncing an award, or in choosing an umpire.
In defence, Mr Fergus
Pleaded: An arbiter, like a mandatary, may resign his office at pleasure, provided he does so neither dolose nor unseasonably. At least it is far from being clear, either in the Roman law or our own, that even a sole arbiter can, in any case, be compelled to give judgment; l. 48. de recept qui, &c. (ff. lib. 4. tit. 8 ); Ersk. b. 4. tit. 3. § 30.; Fount. 30th June 1699, Cheisly, (No 14. p. 632.); and certainly he is not obliged to do so, where, as in this case, he can show a good cause for giving up the submission; l. 15. and 16. de recept qui; Gothofred. ad leg. 16. h. t.
But, at all events, it is plain, that where there are two arbiters, they can be under no obligation either to decide or to name an umpire; because it may be impossible for them to agree in the one case on the sentence, and in the other on the person.
Answered: An arbiter, like a tutor, after accepting, cannot resign the office, either by the law of Rome or of this country, without stating a sufficient reason for doing so; l. 3. § 1. de rec. qui; Voet, ad h. t.§ 14; Sir George Mackenzie b. 4. tit. 3. § 8.; Bankton, b. 4. tit. 45. § 132.; 4th December 1702, Bruce, (Fount. v. 2. p. 163, voce Obligation;) 8th February 1704, Cairncross, (No 15. p. 632.); 6th July 1708, Skeen, (Fount. v. 2. p. 449, voce Obligation;) but the cause assigned by the defender is not relevant; because, although the matters at issue turn upon points of law, the arbiters may concur in making choice of a lawyer for their umpire. And before the defender is entitled to argue, that he and the other arbiter may not be able to fix on the same person, he must at least name one who would be agreeable to himself. It will be time enough to enquire what is next to be done, when his colleague refutes to adopt his choice.
The Court, without entering into the question how far a sole arbiter is bound to decide, were clear on the grounds stated by the defender, that against one of two arbiters the conclusions of the action were ill-founded.
The Lords unanimously assoilzied the defender.
Lord Ordinary, Swinton.Act. H. Erskine, D. Cathcart.Alt. Solicitor-General Blair, Davidson.Clerk, Pringle. Davidson.
Fac. Col. No 231. p. 537.
*** See Cases on the subject of this Subdivision, voce Obligation.
