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Richard Hetherington, and Others, Tenants on the estate of Killhead, v Thomas Carlyle, Factor on the sequestrated estate of Killhead. [1771] Mor 2_2 (21 June 1771)
URL: http://www.bailii.org/scot/cases/ScotCS/1771/Mor02ARBITRATION-003.html Cite as:
[1771] Mor 2_2
Richard Hetherington, and Others, Tenants on the estate of Killhead, v. Thomas Carlyle, Factor on the sequestrated estate of Killhead
Date: 21 June 1771 Case No. No. 3.
Reduction of a decree-arbitral, attempted upon alledged falsehood in the decree.
An error calculi may be corrected without reducing the decree.
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The pursuer brought a reduction of a decree-arbitral, pronounced in a submission betwixt the above parties, upon the ground of falsehood, and as being defective and partial, as it had not determined the whole matters in dispute. The decree-arbitral set forth, “That the arbiters had considered the claims of both parties, and answers thereto, with the several processes specified in the submission, with the whole procedure, minutes, and interlocutor therein; and particularly the process of suspension of the said Thomas Carlyle's charge against the tenants for payment of their rents, and whole proofs led thereon, with the tacks granted by the said Sir John Douglas, upon which the said charge proceeded, and had met with and heard parties doers upon the premisses.”
The pursuers affirmed that this averment could not possibly be true; and in a condescendence offered to prove, 1mo, That no memorial was laid before the arbiters but with respect to the case with one only of the pursuers; 2do, That the proofs, tacks, and other writings, were so extremely voluminous, that they could not, as stated, have been perused, or duly considered by the arbiters; 3tio, That instead of having heard parties or their doers, the arbiters had proceeded to pronounce their decree-arbitral, even after the pursuer's agent had told one of them that he was obliged to go to the country, and insisted that none should be pronounced till the parties had an opportunity of stating their whole claims, and of being fully heard. These facts, it was said, if proved, amounted to the falsehood which was struck at by the act of sederunt 1695. The other grounds of reduction were not pressed; and the defender, of consent, admitted a small alteration to be made as to the claims of three of the parties.
The Court, by the first interlocutor, allowed a proof before answer; but upon advising a reclaiming petition and answers, the Judges were of opinion, That though an error calculi might be rectified without setting the decree aside, yet as there was no fraud alleged, there was no ground of reduction according to the regulations 1695. They accordingly “refused to allow a proof; but remitted to the Lord Ordinary to rectify the errors in the decree-arbitral, which are acknowledged by both parties, and to proceed in the cause accordingly.” And to this interlocutor they adhered, by refusing a petition without answers.
Lord Ordinary, Barjarg.For Hetherington, &c. Crosbie, Wight, A. Fergusson.Clerk, Tait.For Carlyle, Rae, Ilay Campbell.
Fac. Coll. No. 91. p. 268.
