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Scottish Court of Session Decisions >>
Thomas Elliot v John Elliot. [1789] Mor 668 (15 December 1789)
URL: http://www.bailii.org/scot/cases/ScotCS/1789/Mor0200668-070.html Cite as:
[1789] Mor 668
Subject_1 ARBITRATION. Subject_2 Reduction of Decree-Arbitral.
Thomas Elliot v. John Elliot
Date: 15 December 1789 Case No. No 70.
An arbiter, in a settlement of accounts, having involved, with the subject of the submission, a similar settlement between himself and the parties-submitters, the decree, though from thence the transaction did not appear, was found null.
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John Elliot and Thomas Elliot entered into a submission to Elliot of White-haugh, and two other arbiters, the object of which was to settle accounts betwixt the parties-submitters. It appeared to the arbiters, that the sum of L. 74 was due by Thomas to John; but in their decreet-arbitral they decerned for L. 62 only.
It happened that Whitehaugh was creditor to John for L. 12, and debtor to Thomas for a larger sum; and the design of the arbiters was, that John's debt to Whitehaugh should be deducted from the sum to be awarded in his favour against Thomas, while the amount of the debt by Whitehaugh to Thomas was proportionably diminished. Accordingly Whitehaugh granted to John a receipt for the L. 12, and to Thomas a bill for the balance due to him. Of this transaction, however, no notice was taken in the decreet-arbitral, though stated in minutes formed by the arbiters.
The decreet-arbitral was challenged by Thomas in processes of suspension and of reduction, on this ground, That the settlement thus effected, was not only ultra vires compromissi, but inconsistent with that impartial and disinterested situation of arbiters relative to the matter at issue, which the law holds as essential to their character;—the pecuniary interest of one of the arbiters being here involved in their determination.
The Court seemed to be clearly of opinion, that nothing unfair was intended or could be occasioned by the proceeding in question; but that, nevertheless, it was necessary to give a check to every thing that tended to create any bias in the delicate situation of arbiters; and therefore
The Lords adhered to the Lord Ordinary's interlocutor, which found, ‘That it was not only ultra vires compromissi, but a very improper conduct in one of the arbiters, to settle accounts betwixt him and the two parties-submitters; this settlement having been executed before the decreet-arbitral was signed, by one of the parties granting a receipt to the arbiter, and the other a bill to him.’
A reclaiming petition against the judgment of the Court was appointed to be answered, but afterwards refused.
Lord Ordinary, Monboddo.Act. Dean of Faculty.Alt. G. Fergusson.Clerk, Home.
Fol. Dic. v.3. p. 37. Fac. Col. No 98. p. 178.
