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SCOTTISH_HoL_JURY_COURT

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(1816) 4 Dow 363

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1816.

56 Geo. III.

SCOTLAND.

APPEAL FROM THE COURT OF SESSION.

No. 19

Maule Appellant

v.

Maule Respondent

April 9. May 10, 1816.

Subject_DECREET ARBITRAL (AWARD), NOT VALID AS SUCH, IF USED AS A CLOAK FOR A TRANSACTION OF A DIFFERENT NATURE.

Submission and decreet arbitral in 1782 between A. and B.; the latter taking burden upon him for his son C., a minor, whose interest was concerned. B. dies in 1789, and C. comes of age in 1794, and does various acts under the decreet arbitral, believing it to be a bonâ fide submission and award. In 1809, C. discovers the uncorrected scroll of the submission, and letters of one of the arbiters, from which it appears that the arbiters had not been left to the free exercise of their own judgment on the matters referred to them, but had been bound down by a previous agreement or compromise between the parties; so that the transaction was in reality an agreement to be carried into execution under the colour of an award. Held by the House of Lords, reversing the judgment of the Court of Session,
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that, under these circumstances, and upon this evidence, the transaction was not a valid decreet arbitral, nor binding as such upon C.

Leases of the houses and parks of Panmure and Brechin.

The estates of Panmure having been forfeited to the Crown in 1715, by the attainder of James, then Earl of Panmure, and brought to sale, were purchased by the York Building Company; and that Company, on April 23, 1724, executed a lease for ninety-nine years, of the house and parks of Panmure, to the Countess of Panmure, widow of Earl James, and her assignees whatsoever, at 100 l. yearly rent; and a lease, of the same date, of the mansionhouse and parks of Brechin to Mr. Harry Maule, brother and next heir of Earl James, and to his assignees whatsoever, for ninety-nine years from the time of his entry, which was declared to be at the determination of the said Countess of Panmure's life-rent of the subjects, for 50 l. yearly rent.

Entail of the estates of Kellie and Ballumbie, 1730.

Entail of the leases, 1730.

Substitution in the entails.

In 1730, Sir Harry Maule, with the concurrence of his sons William and John, executed a strict entail of the estate of Kelly; and the son William, of the same date, executed an entail of the estate of Ballumbie, to which he was then entitled in possession, to the same series of heirs; and also granted an obligation to employ a sum of 9000 l. sterling in the purchase of lands, to be settled according to the provisions of the entail, in consideration of a bond for 10,000 l. which had been granted by the late Earl of Panmure to the Countess previous to his forfeiture, to which he, William, had acquired right. The Countess and Sir Harry, in

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the same year, also executed entails of the leases of the mansion-houses and parks of Panmure and Brechin, to the same series of heirs. The destination was, after Harry Maule's decease, to William Maule, his eldest son and the heirs male of his body; whom failing, to John Maule, his other son, and the heirs male of his body; whom failing, to any other heirs male to be proceated of the body of Harry Maule; whom failing, to Dr. Henry Maule, Lord Bishop of Cloyne, in Ireland, his next heir male, and the heirs male of his body; whom failing, to James Maule, the Bishop's brother, and the heirs male of his body; whom failing, to the nearest lawful heirs male of Harry Maule; whom all failing, to his nearest lawful heirs and assignees whatsoever. The entails were never recorded.

Death of H. Maule, 1734. His son William possesses without acknowledging the leases.

The Countess of Panmure died in 1731, and Mr. Harry Maule in 1734; and William the eldest son, afterwards created an Irish Peer, with the title of Earl of Panmure, made up titles to the estate of Kellie upon Harry Maule's investitures, dated 1687, which did not extend the substitution to the Bishop of Cloyne. He continued to hold Balumbie on his title prior to the entails, and he possessed the mansion-houses and parks of Panmure and Brechin, without any acknowledgement of the entails of the leases, from 1734 to 1781, the period of his death, previous to which he purchased the property of the subjects of the leases.

Death of John Maule, 1781.

In July, 1781, John Maule, the other son of Harry, a Baron of the Exchequer, died without issue, having bequeathed to Lieutenant Thomas Maule, grandson of the Bishop of Cloyne, and

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father of the Appellant, a bundle of papers, including the entails of 1730, and the obligation for 9000 l.

Entail of 1781.

Death of William Earl of Panmure, 1781; and competition between the claimants under the entails 1730, and the claimants under the entail 1781.

Interlocutor, 1782, sustaining the claim to the leases under the entails of 1730.

The Earl of Panmure having purchased the whole of the family estates in Forfarshire, including the subjects of the leases, in 1781 executed an entail of the whole to his nephew, the Earl of Dalhousie, in life-rent; and to his second son, and his younger sons, seriatim, in fee. The Earl died without issue in less than three months after executing this entail; and then a competition for the estates arose between the Earl of Dalhousie for himself, and as administrator in law for his second son the Respondent; and Thomas Maule, the Appellant's father, descendant and heir male of the Bishop of Cloyne, claiming under the entails of 1730. The result was that the Court of Session, by interlocutor of March 1, 1782, found that the entails, 1730, of Kelly and Ballumbie, had been cut off by the positive and negative prescription, and that the obligation relative to the 9000 l. was cut off by the negative prescription; and that the Earl had full power over these subjects. But with respect to the leases of the mansion-houses, &c. of panmure and Brechin, the subjects now in question, the Court found that Thomas Maule had a right to take them up.

Appeal.

Arbitration.

Award or decreet arbitral.

The Earl of Dalhousie entered an appeal to the House of Lords against this judgment in so far as respected the leases. The parties then referred the whole matters in difference to the arbitration of Mr. Wight, the leading counsel for Thomas Maule, and named by him as arbiter, and Sir Ilay Campbell, leading counsel for the Earl of Dalhousie, and

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named arbiter by him, and in case of variance between these arbiters, to the decision of M'Queen, of Braxfield, one of the Judges of the Court of Session, whose opinion had been given in favour of Thomas Maule with respect to the leases; the Earl of Dalhousie taking burden upon him for the Respondent, and T. Maule for the Appellant. The submission was dated March 30, 1782, and the arbiters made their award on the 2d of April following, thereby finding that the leases were at an end in consequence of the purchase of the property by the Earl of Panmure, and that the entails of them were at any rate cut off by prescription, and were not subsisting deeds; and therefore they reduced the same, and reversed the interlocutor of the Court so far as respected the leases, and affirmed it as to all other points. But in consideration of depriving Thomas Maule, and the heirs under the entails of 1730, of the leases adjudged in their favour by the Court of Session, the arbiters ordained the Earl of Dalhousie, his son, and their heirs, to advance 3500 l., 500 l. of which was to be paid to Thomas Maule immediately, and the remaining 3000 l. to be laid out on security, in the name of trustees, to the use of Thomas Maule and the other heirs under the entails of 1730 (except as under-mentioned), who were to be entitled to the interest of the principal remaining unpaid, during the subsistence of the trust; 500 l. of the principal to be paid in 1789, 2000 l. in 1823, the time of the expiration of the Panmure lease, and the remaining 500 l. in 1831, the time of the expiration of the Brechin lease. There was this difference between the destination of the

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leases and that of the money; that in the case of the leases the ultimate destination was to the heirs and assignees whomsoever of Harry Maule; and with respect to the money, the ultimate destination was to the heirs and assignees whomsoever of Lieutenant Thomas Maule.

The appeal was then withdrawn; the money was advanced in terms of the award, and the 500 l. paid to Lieutenant Maule. Mr. Wight and Sir Ilay Campbell were appointed trustees, and Lieutenant Maule received the interest of the 3000 l. till his death in 1789. In 1791 the Appellant, then a minor, was served heir male, and of provision under the decreet arbitral; and concurred with the Respondent, after the death of Mr. Wight, in the discharge of Sir Ilay Campbell, and the appointment of Mr. Campbell, now Lord Succoth, and Mr. Corbet, advocates, as trustees; and the deed was written by the Appellant himself, who, since his father's death, received the interest and discharged it, and did other acts which were afterwards founded upon as acts of homologation.

1809. Discovery of evidence.

Scroll of the submission.

Letters of Mr. Wight.

Opinion of counsel.

Agreement.

The Appellant came of age in 1794, and soon after went into the army, and was ordered with his regiment to Ireland, where he resided till 1809, when he came to Scotland. He then heard of the death of a Mr. Maule, factor to the Earl of Moray, who had promised him a legacy; and, on examining certain papers, part of which had belonged to the deceased, and part to a Mr. James Maule, clerk to Mr. Leslie, writer to the Signet, who had been agent for Lords Panmure and Dalhousie, he found a paper entitled, “Opinion of Mr. David Rae, and

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and Mr. Ilay Campbell upon the title deeds of Kellie and Ballumbie, August, 1781;” and another entitled “Submission, between George Earl of Dalhousie and Thomas Maule, Esq. 1782.” The Appellant then caused a search to be made among his father s papers, and found two letters of the dates March 24 and 29, 1782, from Mr. Wight to the Appellant's father. From the papers thus discovered, it appeared that Sir Ilay Campbell and Mr. Rae, afterwards Lord Eskgrove, had been of opinion that the leases were not extinguished by the purchase of the property, and that it was very questionable whether the entails of them were extinguished by prescription; and that an agreement or compromise had been entered into by the parties, or their counsel, previous to the submission and award, in which the utmost amount of the sum to be given for the leases and the other points to be decided, and which afterwards were decided by the award, had been arranged and settled. The letters of Mr. Wight referred to the treaty, and mentioned his exertions to bring the other party to higher terms; and in the scroll of the submission, prepared by Mr. Leslie, it was stated that, to avoid further proceedings at law, a treaty had been entered into between the counsel for the parties, and a verbal agreement concluded to the following effect; and then the terms of the agreement were set forth as they afterwards appeared in the decreet arbitral. This narrative was, on revision, struck out.

Action to set aside the award, 1809.

Upon discovering these papers the Appellant applied to the Respondent to consent to depart from the transaction, and to a re-hearing of their claims

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on the footing on which they had been placed by the judgment of the Court of Session in 1782; but this being refused, the Appellant raised an action of reduction and declarator to set aside the decreet arbitral and service thereon, on the grounds that the arbiters had not been permitted to exercise their own judgment on the matters pretended to be referred to them, but had been bound down by a previous agreement, bargain, or transaction, and that the parties to the transaction had no power to bind the Appellant as heir of entail.

Interlocutor, Mar. 9, 1813. Appeal.

Several important questions were agitated in the course of the pleadings; but the only point decided by the Court was, that this was a valid decreet arbitral, and was homologated as such by the Appellant. The Judges were equally divided till Lord Pitmilly was called in; and he being of opinion that the decreet arbitral was valid and binding, the Court (2d division) by interlocutor of March 9, 1813, repelled the, reasons of reduction, &c. From this interlocutor the Appellant appealed.

The appeal was heard in the House of Lords in April, 1816.

Judgment. April 9, 1816.

Lord Eldon (C.) This is an appeal from an interlocutor of the Court of Session of March 9, 1813, in which William Maule, of Killumney in Ireland, great grandson of Doctor Henry Maule, Lord Bishop of Cloyne, and the Honourable William Ramsay Maule, of Panmure, are the parties; and the object of the Appellant, William Maule of Killumney, was to reduce or set aside a certain decreet arbitral or pretended decreet arbitral, and the opinion

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of the Lords of Session appeared in the interlocutor appealed from, which was this:

“The Lords having resumed consideration of this process, and advised the mutual informations and additional informations for the parties, writs produced, and former proceedings, repel the reasons of reduction, sustain the defences, assoilzie and decern, &c.”

I here take a short notice of the fact that the Court was equally divided till Lord Pitmilly was called in, and that some of the Lords who were in favour of the interlocutor stated that this was a case of very great difficulty.

Decreet arbitral or award.

It is unnecessary to state the previous proceedings at length, but the result was the interlocutor of 1782. No judgment, it was stated, had ever before been given in favour of an entail of leases. The property in dispute was represented as being very valuable. The fact was admitted that Mr. Wight and Mr. Campbell, afterwards Sir Ilay Campbell, were present at the time when the judgment was pronounced; the one as counsel on the one part, the other as counsel on the other part. What was called the submission was executed on March 30, 1782, and afterwards the award, or what was so termed, was made on April 2, 1782, two days after the execution of the submission, and was as follows. After the usual preamble it proceeds:

“1st, We find that the said leases of the house and parks of Panmure, and castle and inclosures of Brechin, obtained by the Countess of Panmure and Mr. Harry Maule from the York Building Company, in 1724, are now at an end, in consequence of the late Earl of Panmure having purchased the property”

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—(that is a finding of the arbiters contrary to the law of the interlocutor of March 1, 1782);— “and that the tailzies of them executed in 1730, and founded on by the said Thomas Maule, Esq. are at any rate cut off and extinguished by prescription as well as upon other grounds of law, and are not now subsisting deeds; and therefore we reduce the same, and assoilzie the said George Earl of Dalhousie, as life-renter, and the said William Ramsay Maule, his second son, as fiar of the estate of Panmure, and the other heirs of entail of the said estate, from all claim or demand upon those leases, or upon the tailzies thereof, at the instance of the said Thomas Maule, Esq., or his son, or any other person claiming under these deeds of 1730: and we so far alter the interlocutor of the Court of Session recited in the submission pronounced on March 5 last; but we adhere to the said interlocutor in all other points, and declare the same to be final and unalterable.”

Having thus decided the case in all particulars, and affirmed in substance that Thomas Maule had no claim to anything, they proceed thus:—

“And as we conceive it to be just and reasonable, that the said Thomas Maule, Esq. though not entitled to make any legal claim upon the foresaid deeds executed in 1730, should have the following provision in money settled upon him and his heirs under-mentioned, in consideration of our having, by this decreet arbitral, deprived him and them of the benefit of the leases, which the Court of Session had adjudged in their favour, we decern
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and ordain the said George earl of Dalhousie, for himself, and as administrator in law for his said second son, and taking burden as aforesaid, and his heirs and successors in general, to make payment to the said Thomas Maule and his heirs undermentioned, of the sum of 3500 l. sterling, in manner and at the terms following: viz. 500 l. thereof to the said Thomas Maule himself, immediately after the decree is registered, and the remaining 3000 l. at the term of Whitsunday next; but which 3000 l. is then to be laid out upon good and sufficient security, to be taken in the name of two trustees, one to be named by each party, for the use”—observe—“of the said Thomas Maule, Esq. and the heirs male of his body; whom failing, any other heirs male of the body of Dr. Harry Maule, Lord Bishop of Cloyne; whom failing, the heirs male of the body of Captain James Maule, brother to the Bishop; whom failing, the heirs male whatsomever of the said Mr. Harry Maule; whom failing, the said Thomas Maule, Esq. his heirs and assignees whatsomever: which trust is to continue till the term of Whitsunday 1831; but with the following conditions and limitations: in the first place, that the said Thomas Maule, and, failing him, the heirs of his body, and other heirs already mentioned, shall have full right to the yearly interest arising upon the said sum from Whitsunday next, and in time coming, during the trust, so far as the capital shall remain unapplied to their uses. 2dly, That 500 l. of the said capital of 3000 l. shall be uplifted and paid over to the said Thomas Maule, or, failing
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him, the heirs male of his body, or other heirs already mentioned, at the term of Whitsunday 1789; that 2000 l. more of the said capital shall be payable to him or them, at the term of Whitsunday 1823, and the remaining 500 l. at the term of Whitsunday 1831, and then the trust shall be at an end: and if either of the trustees shall happen to die before the expiration of the trust, the party by whom, or by whose predecessor, he was named, shall have power to appoint another, and so on till the end of the trust; and the trustees shall have power to change the securities from time to time, when necessary. 3dly, We further declare, that if either the said Thomas Maule, or his said son William Maule, or any other heir male of his body, or subsequent heir called by the said deeds in 1730, now reduced, shall hereafter attempt to make any claim upon the said deeds, or any of them, under pretence of their not being bound by this submission, or on any other ground whatever, it shall be competent for the said George Earl of Dalhousie, and his said second son, or the other heirs in the estate of Panmure, in their order, immediately to insist for repetition of the trust money, so far as the same is unuplifted at the time, or so far as the same has been uplifted by the person making such claim, or by any other whom he represents, and for damages against the said Thomas Maule and his heirs: and, in like manner, if the said George Earl of Dalhousie, or his said second son, or any of the other heirs succeeding in the estate of Panmure, shall attempt, in any shape, to
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counteract this our decreet arbitral, they shall be liable in damages to the other party; and the said George Earl of Dalhousie's heirs of every kind shall be so liable, &c.”

Lord Braxfield, overs man.

I should have mentioned that Lord Braxfield was made oversman in the submission, and it was admitted at the bar that it was chiefly by the weight of his opinion that the Court was led to pronounce the interlocutor of March 1, 1782; and I should also have mentioned that the award was to be made in eight days from the date of the submission.

Thus the gentlemen acting as arbiters affirmed the interlocutor so far as it was in favour of the Earl of Dalhousie and his son, and disaffirmed it in so far as it found that the entail of the leases was binding; thereby asserting that, in point of law, Thomas Maule had no right to the leases, and that they were at an end in consequence of Lord Panmure's having purchased the property, and that the tailzies of the leases were at any rate cut off and extinguished by prescription; and then having, as it seems to me, decided that Mr. Thomas Maule was entitled to nothing, they go on to say that, though Thomas Maule was not entitled to make any legal claim, yet as they had deprived him of all that benefit in respect of the leases to which the Court had found him entitled, it was just and reasonable that he should have a sum of money, part of which was to be paid to Mr. Thomas Maule immediately, the rest to be secured for the use of the heirs substituted in the entail of the leases. This decreet arbitral was made on April 2, 1782.

1809. Conclusions of the action.

The Appellant's case then proceeds to state the

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reasons why the suit to set aside the award was not instituted till 1809. The Pursuer it seems then discovered certain papers which led him and his advisers to think that the award was not binding upon him; and he thought proper to institute the present action of reduction and declarator, calling for production of the alleged submission and decreet arbitral, with the retour of his service expede thereon; and concluding, that these writings should be reduced and set aside for the following reasons:—

“1st, That, although ex facie of the foresaid pretended submission it bears to be a reference of the depending processes, and various points of dispute between the parties therein named; yet, in fact, it was not a submission, but only a bargain, covenant, or agreement, of a nature essentially different from what, in law, is held and understood to be a regular and proper submission or reference; and the said pretended decreet arbitral, following thereon, is false, feigned, and destitute of truth. It sets forth that the arbiters had considered the claims of the parties, and had God and a good conscience before their eyes, and were well and ripely advised therewith: whereas the truth is, that the said arbiters never heard parties on, nor considered their claims, nor had any power whatever so to do under the said pretended submission. They were fettered and bound down by a previous agreement, to pronounce the said pretended decreet arbitral in the terms in which it is given forth, and were not at liberty to exercise, nor did they exercise, their own judgment and discretion upon the questions apparently
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submitted to them. 2d, The parties to the said pretended submission, bargain, covenant, or agreement, whereon the said pretended decreet arbitral proceeded, had no power to bind the pursuer, as heir of tailzie, to give effect to the same, or abide thereby: and, therefore, the same, with the service of the pursuer, as heir male and of provision, under the said pretended decreet arbitral, and whole acts and deeds done by the pursuer, on the ground, and under the erroneous conception of its being a fair decreet arbitral, pronounced upon a solemn and legal submission by arbiters, at full liberty to exercise their own judgment upon the points apparently submitted to them, are null and void so far as regards the pursuer, and not binding on him.”

And it being so found and declared, “the said Honourable Wm. Ramsay Maule, defender, ought and should be decerned and ordained, by decreet foresaid, to flit and remove himself, his servants, cottars, dependants, and all others, off and from the said houses and parks of Brechin and Panmure, and others foresaid; and to leave the same void and redd, to the effect the pursuer, for himself, his servants, cottars, tenants, and others, may enter thereto, and possess, bruik, and enjoy the same at pleasure, during the currency of the said leases; and the said Honourable William Ramsay Maule, ought further to be decerned and ordained, by decreet foresaid, to hold compt and reckoning with the pursuer for his intromissions, with the rents and profits of the said houses and parks of Brechin and Panmure, and others foresaid,

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since the death of the said Lieutenant Maule, and pay over to the pursuer the amount thereof, as the same shall be ascertained in the course of the process to follow hereon, &c.”

Your Lordships observe that this action insists that these writings are not to be considered in law as a submission and decreet arbitral, and that relief ought to be given on that ground, as if the submission and decreet had never been made. What relief ought, in the opinion of the Court of Session, to be given to the pursuer, in case this should not be considered as a binding decreet arbitral, we cannot collect, as the circumstance, that the majority of the Court were of opinion that the decreet arbitral was valid and binding, made it unnecessary to give any opinion on that point.

The only question for decision, whether this is a valid decreet arbitral.

Transaction.

Homologation.

In these papers questions have been elaborately and ably discussed, on which it is not necessary to give an opinion. The first point argued in the Appellant's appeal case is that the judgment of the Court of Session in 1782, sustaining Lieutenant Maule's claim to be served heir of tailzie to Lord Panmure, in the leases of Panmure and Brechin, was well founded. That however is not the question here at present; the only question now before us is, whether this is a valid decreet arbitral. The other points may be material if the decreet arbitral is not valid and binding, but the Court below has given no opinion upon them. The same observation applies to some other questions discussed under the second and third heads of argument stated in the Appellant's case. I intimated at the hearing that the Judges had given no opinion upon this as

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a transaction in any other sense than in that of a decreet arbitral. As to the point of homologation, all the Judges, according to the notes which I have, speak of the homologation of the transaction only in its character of a decreet arbitral. They have decided that it is a valid decreet arbitral, and if so it was unnecessary to consider the homologation in any other view; and, if they did not consider it in any other view, then there is no opinion of the Judges on the homologation of this transaction as different from a decreet arbitral.

Question, whether this is a valid submission and award.

No ground of imputation against the counsel who acted as arbiters.

York Building Company v. Mackenzie, 8 Bro. P. C. per Tomlins, 42.

The simple point then is, whether this is a real submission and award, or only an agreement of the parties, to which the form of a decreet arbitral was given, for the purpose of giving it greater validity. And when I come to discuss that point it will be most painful to me if, with the opinion that this is no more than an agreement under the form of a decreet arbitral, it should be supposed that I accede to any imputations that may have been thrown out against the gentlemen who acted as arbiters. For at an early period of my life I believe I have been at that bar with Mr. Wight, a man of high character; and as for Sir Ilay Campbell, he is well known, and of his character I need say nothing: and, under the circumstances of the case, I think it would be dealing very hardly with two counsel to say that there was any serious imputation against them, merely because they happened to take the form of a decreet arbitral, though the transaction was in reality an agreement. ^* We have heard much

_________________ Footnote _________________

* The opinion seems to have been entertained by some of the most eminent men at the Scotch bar, that a decreet arbitral

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of the case of Mackenzie; I well recollect that Lord Thurlow never thought that there was any ground of reflection on the conduct of Mackenzie. I think I was counsel in the cause; and it was a surprise upon us that the imputation was made, as it had been stated that one of the Judges of the Court of Session had purchased property sold in the course of a cause in which he had acted as Judge. But this House thought, upon a great principle applicable to the high as well as the low, as persons in these situations had an opportunity of knowing a great deal more about the subject than others, of which, though honourable men would not, yet men less scrupulous might, take an improper advantage; that persons in such circumstances ought not to be permitted to deal for the property at all.

Duties of arbiters.

When I come now to consider whether this was, or was not, a proper decreet arbitral, permit me to say that arbiters ought to go into the room as judges, and that though one is chosen by one party, and another by another, each is not to act merely for the interest of the party by whom he is named. Arbiters, by whomsoever named, ought to be perfectly indifferent between the parties, and owe to the particular parties duties of the same nature as

_________________ Footnote _________________

might be properly used to carry an agreement into execution, and might be valid as such though so used. Vid. Routledge v. Carruthers, post, for a decreet arbitral of this sort by Mr. Ferguson, afterwards Lord Pitfour, and Mr. Lockart, advocates. This circumstance might perhaps account for and explain the proceeding of Sir Ilay Campbell and Mr. Wight, without any necessity for the slightest imputation in a moral sense, even though their character had not stood so high as it does.—P. D.

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those which the King's Judges owe to his Majesty's subjects in general, though not named by them.

March 1, 1782. Former judgment. Fac. Col. vol. ix. p. 66.

Having premised these observations, I shall read the judgment of 1782. The Lords found, “that the deed of tailzie, executed by the deceased Mr. Harry Maule of Kelly, with consent therein mentioned, in the year 1730, of the lands and estate of Kelly, and also the deed of tailzie executed by the late William Earl of Panmure, in the aforesaid year, of his lands and estate of Ballumbie, are cut off by the positive and negative prescription; and that the obligation for employing 9000 l. sterling, executed by the said William Earl of Panmure, in the aforesaid year, is cut off by the negative prescription. That the said William Earl of Panmure had full power to make the deed of tailzie, executed by him, in favour of the said Mr. William Ramsay Maule, and his administrator in law. That the said Mr. William Ramsay Maule was entitled to be served heir of tailzie and provision to the said deceased William Earl of Panmure, his grand-uncle, in virtue of the foresaid deed of tailzie in his favour, and remitted to the macers to proceed in his service accordingly, on the brief brought before them by him and his administrator in law. They farther found, that the said Lieutenant Thomas Maule had a right to take up the leases of the house and parks of Panmure, and house and parks of Brechin, and remitted to the macers to proceed in his service, in so far as regards these two leases; but that he was not entitled to be served heir male of tailzie and provision to the said William Earl of

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Panmure, in virtue of the deed of tailzie of the estate of Kelly, executed by the late Mr. Harry Maule, nor in virtue of the deed of tailzie of the estate of Ballumbie, executed by the said William Earl of Panmure; and that his service on the brief taken out by him could not proceed with regard to the said estates of Kelly and Ballumbie; and remitted to the macers to dismiss the same accordingly, in so far as concerned these two estates.” So that this interlocutor finds, that Thomas Maule was entitled to take up the leases of the houses and parks of Panmure and Brechin, which leases were represented as being of the value of 50,000 l.; but whether the value was 50,000 l. or 50 l., is, as to the present purpose, immaterial.

Evidence as to the question whether this was a valid decreet arbitral.

This being the judgment of the Court of Session, the Earl of Dalhousie appealed to this House, and that fact is noticed in the letter of March 24, 1782, written by Mr. Wight, which is material. The letter is in these words:—

“I have received yours, and I am sorry you should have put yourself to the expense of an express, on the subject to which it relates. It was understood between us that Lord Dalhousie should enter his appeal, so that, in all events, the matter might be determined this Session, in case we did not agree.”

These words, “it was understood between us” do not mean that it was understood between Mr. Wight and his client, Lietenant Maule, but between Mr. Wight and some other person; and another, and not Lieutenant Maule, was alluded to in the words, “in case we did not agree.” Then the letter proceeds—“but if Leslie had been at home, there

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would have been no attempt at a service; that has proceeded from a mistake in his clerk. But you may be perfectly easy. Mr. Ferguson and I have your interest at heart, and you may depend upon us. I am only to ask of you not to trouble yourself about any thing, till we see you.” And then there is a postscript with the words “flurried a little,” which seem to be of no consequence. “Flurried a little.” The letter was dated March 24, 1782, 12 at night.

Then Mr. Wight writes another letter of March 29, 1782, which, let it be observed, was the day before the submission was executed. “I have spent three hours with Mr. Campbell this forenoon; and the utmost length that they will go, is to give 3500 l. for the leases. I wished much to bring them higher, and struggled hard for their coming the length of 4000 l.; but they are resolved not to give a sixpence more. Whatever others may think, I am most clearly of opinion that, in your situation, you ought to accept of this offer, rather than run the risk of losing all; the more especially, as Lord Dalhousie agrees to give up any claim he has by the entail; without which, in the event of your own and your son's death, he would exclude your daughters. I was surprised to learn just now, that Mr. Crosbie was drawing a case for the house of Lords, upon the idea that the appeal was to proceed: I therefore beg you will let me know whether you mean to end upon the terms proposed by the other party, as they expect a speedy answer.” [This last letter is indorsed in the hand-writing of Lieutenant Maule.] “Mr. Wight, March 29, 1782, settling with Ilay Campbell; pushing to close.”

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Unless the award was the judgment of both, it was the judgment of neither.

From this, it is obvious that Mr. Wight, in his previous letter, by the expressions, “it was understood between us;” and “in case we did not agree,” alluded to Mr. Campbell: but they did not act consistently with the principles of arbitration, unless the award was the judgment of both; for if it was not the judgment of both, it was the judgment of, neither. Mr. Wight says, “I have spent three hours with Mr. Campbell this forenoon; and the utmost length they will go is to give 3,500 l. for the leases. I wished much to bring them higher, and struggled hard for their coming the length of 4000 l.; but they are resolved not to give a sixpence more. Whatever others may think, I am most clearly of opinion that, in your situation, you ought to accept this offer, &c.” so that this sum of 3,500 l. was proposed by the other arbiter. Do I characterize this too highly, when I say that Mr. Wight and Sir Ilay Campbell had been spending these three hours in determining what the one should take and the other give for the title which Thomas Maule had under the interlocutor of the Court of Session, pronounced chiefly in consequence of the influence of Lord Braxfield's opinion; the one struggling for 4000 l., or a higher sum than 3,500 l.; the other offering 3,500 l., and refusing to give more? And Mr. Wight then states his opinion that Maule ought to accept the offer, that is, the offer to give 3,500 l. for the title; for, though words are not to be strained, they must be construed according to their common meaning and natural import. Mr. Wight also says, in his letter, “I beg you will

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let me know whether you mean to end upon the terms proposed by the other party.” Was not this, then, a proposal by the other party? and Mr. Wight tells Maule that they expected a speedy answer.

The submission was dated March 30, and the scroll of it has been recovered. Your Lordships will recollect that it was prepared by Leslie, as to whom it had been stated by Mr. Wight, in his letter of March 24, speaking of the appeal, that if he (Leslie) had been at home there would have been no attempt at a service. So the scroll was prepared by Leslie; and this could not have been done so early, unless a speedy answer had been returned by Lieutenant Maule. The scroll was afterwards altered and corrected by Sir Ilay Campbell, and the submission was drawn out thus:—after narrating the actions brought, and the interlocutor of 1782, it goes on—

Submission, March 30, 1782.

“But to avoid farther proceedings at law, the parties have agreed to settle matters by arbitration; therefore, the said George Earl of Dalhousie, for himself, and as administrator-in-law for his second son, the honourable William Ramsay Maule, and for his whole other children, and the honourable Lieutenant Colonel Malcolm Ramsay, his Lordship's brother, on the one part; and Thomas Maule, for himself, and as administrator-in-law for (the Appellant) Wiliam Maule, his only son, on the other part; have submitted and referred, and do hereby submit and refer, to the amicable decision and final sentence and decreet arbitral of Mr. Alexander Wight and Mr. Ilay

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Campbell, advocates, arbiters mutually chosen by the said parties submitters; and in case of variance between the said arbiters, to the honourable Robert M'Queen, Esq.” (that is, the very gentleman by whose influence the interlocutor in favour of Lieutenant Maule had been pronounced, he acting only in case of variance between the arbiters), “one of the Senators of the College of Justice, oversman, mutually elected by the said parties, all questions between them, or which either of them may or can have with the other, in relation to the premises, and particularly the whole of the said processes and claims, with the interlocutor thereon pronounced, and appeal thereon entered; and cross appeal, competent to have been entered; both of which are hereby agreed to be departed from: with full powers to the said arbiters, and, in case of variance, to the said oversman, to take in the different claims and allegations of the parties, and to receive all necessary proofs; and, in general, to do every other thing else that shall appear to them proper and expedient, for determining on the matters herein submitted: and whatever the said arbiters, and, in case of variance between them, the said oversman, shall decide, by decreet arbitral to be pronounced by the said arbiters and oversman, between and the 8th day of April next to come, the said parties submitters, for themselves, and as admistrators-in-law, and taking burden on them respectively, as aforesaid, bind and oblige them and their said children, and their heirs and executors, to acquiesce in, implement, and perform,

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under the penalty of 100 l. sterling, over and above performance.” Then follows a clause of registration, &c.

The scroll had been drawn out by Leslie, from some information or conjecture as to what the parties meant, as a verbal agreement entered into between the Counsel for the parties, between the afternoon of March 29 and 30; and the arbiters afterwards, on April 2d following, somehow or other, do the very thing which Leslie had considered as having been agreed upon. This scroll, as I before stated, was laid before Sir Ilay Campbell, and he made out the instrument of submission.

The arbiters then proceed to the execution of their duty, and make their award as early as the 2d of April. It was a question of some difficulty, one would imagine, whether the decision of the Court of Session in favour of Thomas Maule, produced, as was stated, chiefly by the influence of Lord Braxfield, the oversman, ought to be recalled; but in two days they decide that the judgment was wrong, Braxfield, the oversman, having said that it was right. They find that the leases were at an end, in consequence of the Earl of Panmure having purchased the property, and that the tailzies of them executed in 1730 were at any rate cut off and extinguished by prescription, and were not subsisting deeds, and they reduced the same; and so far altered the interlocutor of March 1, 1782, but adhered to it in all other points; that is, they made it in all respects favourable to Lord Dalhousie, and unfavourable to Mr. Thomas Maule. I speak with reserve; but I have no conception that the Courts

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here would permit arbiters to go this length; for I say that they ought to have been both for and against Lord Dalhousie, and both for and against the other party. But what they do is to give Lord Dalhousie every thing, and Lieutenant Maule nothing. Then they proceed to state that they thought it just and reasonable that T. Maule, though not entitled to make any legal claim, should have a provision in money settled on him and his heirs undermentioned, in consideration of their having deprived him and them of the benefit of the leases. Permit me to call your Lordships' attention for a moment to the letter of Mr. Wight, of March 29, in which he states that the utmost length he could bring them to was to give 3,500 l. The arbiters then ordain Lord Dalhousie to make payment to T. Maule and his heirs of the sum of 3,500 l.; that is, the sum which Mr. Wight said the, other party had offered; 500 l. thereof to T. Maule immediately, the remaining 3000 l. to be secured for the use of T. Maule and the persons in remainder, nearly as in the original scroll of the submission and the destination of the entails of the leases.

This not a decreet arbitral, but an agreement.

Then we have on March 29 the counsel for the parties treating about the price to be allowed to T. Maule, in consideration of his giving up his claim; a price offered by the other party, and the proposal accepted; a scroll of submission drawn out, proceeding on the narrative of a treaty between the parties; of a verbal agreement, and the terms of the agreement. That scroll was indeed afterwards altered so as to make it an ordinary submission. The submission was executed on March 30; Lord Braxfield,

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by the influence of whose opinion the judgment of 1782 with respect to the leases had been obtained, being made oversman. The award was to be made by April 8, and is made on April 2, carrying the agreement into execution according to the terms mentioned in the letters of Mr. Wight, and in the scroll of the submission. Why then, though, as I said before, I do not think there is any ground of imputation against the arbiters in this case, yet, upon every consideration of justice and right, I must deal with this as with other cases; and I cannot represent the transaction to my own mind, especially when considering it with reference to the interests of the son of Lieutenant Maule, in any other light than as an agreement executed under the colour of a decreet arbitral; and I can, therefore, look upon this neither as a valid submission nor a valid decreet arbitral. As to the consequences of this opinion, I do not enter upon that consideration now, as the Court below has decided only upon the ground that this was a valid decreet arbitral; but, however I may regret my differing from the majority of the Court of Session, I protest I cannot bring my mind to consider this as a valid submission and decreet arbitral.

Then we have been called upon to decide upon the whole case immediately. That however we cannot do, as the Court below has given no opinion except as to the validity of the decreet arbitral; and if your Lordships concur in the opinion which I have stated, we may declare that this is not a valid decreet arbitral, and remit the cause as to the other points.

Lord Redesdale. The mode proposed by the

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noble Lord does appear to be the only proper way of dealing with the case as it comes before us.

The question here is simply this; whether the instruments, in the forms of a submission and decreet arbitral, are in reality what they are in form. If they are, then they are binding as such. The object of the suit by the Appellant was to reduce this decreet arbitral, and the Court repelled the reasons of reduction, sustained the defences, assoilzied the Defenders, and decerned. Now it does appear to me perfectly clear that the instruments, under the form of a submission and decreet arbitral, were not, in the view of the parties, in reality the instruments of which the shape was so assumed. For it is clear, from the proceedings of the parties, that they were not dealing in the mode of arbitration, but in the way of contract or agreement, to give up the title for a certain sum of money. Whether this transaction is binding as a contract, is a question not now before us to determine; the simple question being whether it can be sustained as a decreet arbitral. If this had been, inform, a contract, or transaction of any other description, to abandon the rights of one of the parties, it could not be stronger than in this case, as there was no discussion of the rights of the parties by the arbiters, who proceeded on the grounds of the contract or agreement previously concluded between themselves on behalf of the parties, as is completely manifest from the letters of Mr. Wight, and from the scroll of the submission, where it was actually stated that the matter had been previously settled by agreement, though that

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was afterwards struck out. I, therefore, perfectly concur with the noble Lord that the decision of the Court below, finding that this should have effect as a decreet arbitral, ought to be reversed. But it is too much for your Lordships at present to decide finally upon the whole case.

May 10, 1816. Formal judgment.

The formal judgment was as follows:—

“The Lords find, that in this action and proceeding between the present Appellant and Respondent, the alleged submission and decreet arbitral of the 30th March and 2d April, 1782, ought not to be considered as having in law the effect of a submission or decreet arbitral, but as a form adopted, by which an agreement previously made between Thomas Maule, the Appellant's father, and George Earl of Dalhousie, parties to the said submission, was concluded: and with this finding, it is ordered that the cause be remitted back to the Court of Session, to review the interlocutor complained of, and to do therein as is just and consistent with this finding.”

Solicitors: Agent for Appellant, Smith.

Agent for Respondent, Campbell.

1816