Scottish Court of Session Decisions

Subject_1 ARBITRATION.
Subject_2 Reduction of Decree-Arbitral.

John Mitchel of Graskin,
v.
John Fulton, and Captain John Weir

Date: 14 January 1715
Case No. No 65.

A decreet-arbitral reduced, because the arbiter accepted of a gratuitous assignation from one of the submitters during the submission.

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John Mitchel having suspended a decreet-arbitral pronounced by Captain John Weir in favours of Mr John Menzies, to which John Fulton had right by progress; he insisted upon many grounds of gross iniquity; but, because iniquity is not allowed as a reason of suspension of a decreet-arbitral, he alleged further, that the arbiter was corrupted, in as far as he had, during the dependence of the submission or prorogation, accepted an assignation to a great many debts due to Mr Menzies, without any just or onerous cause; which cannot be otherwise constructed, than as a design to corrupt the arbiter, who beside was father-in-law to the cedent; and a decreet very iniquitous being pronounced, the iniquity thereof must be constructed to have been the consequence of that undue gratification; and the Lords, before answer, ordained the charger to prove the adequate onerous cause of the assignation to the arbiter. The charger and the arbiter, for his vindication, did offer a bill, alleging that bribery or corruption for annulling a decreet-arbitral must be direct, and not interpretative by inferences, such as accepting of a gratification; but further does also condescend upon several debts due by Menzies to the arbiter, which he alleged to be the true onerous cause of the assignation.

It was answered, 1mo, Seeing iniquity, and all other reasons of suspension of decreets-arbitral were excluded by law, except bribery and corruption, the arbiter was under the greater obligation to acquit himself, so as to be free of the least suspicion of such enormities, and more especially to abstain from taking any gratification; and the iniquity of the decreet did pregnantly load the arbiter's accepting of a gift 2do, As to the condescendence of an onerous cause now offered, it was good for nothing, but only to redargue the narrative of the assignation, which bears a sum of money instantly delivered; and by the condescendence it appears there was no money then delivered, nor could the condescendence and instruction of debts now produced be any instruction of an onerous cause, in as far as the arbiter does not, nor cannot allege that he gave either a back-bond, declaring these debts to be the cause of the assignation, nor did he discharge these debts, nor gave any other document to make appear that the assignation was granted for security of these debts; so that, if the condescendence now insisted on were just and true, the arbiter had all these debts to claim as fully as before the assignation; beside the suspender could very well object against these debts.

The Lords found, That the arbiter could not warrantably accept of any assignation gratuitous, in whole or in part, during the currency of the submission; and that the assignation, bearing a sum of money instantly delivered, could not be constructed to be granted for payment or security of the debts condescended upon, unless there had been a back-bond or discharge, or some other document declaring the cause, at the time of the granting the assignation.

Fol. Dic. v.1. p. 51. Dalrymple, No 129. p. 180.