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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edin. Oil Gas Light Co. v Clyne's Trustees [1835] CA 13_413 (6 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0413.html Cite as: [1835] CA 13_413 |
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Page: 413↓
Subject_Process—Jurisdiction—Appeal.—
Arbitration—Relief
Mutual actions were made the subject of judicial reference, and an award was pronounced, to which the Court interponed its authority; an appeal was entered to the House of Lords, during the dependence of which one of the parties raised an action to compel implement of the award—held competent, and, in the circumstances, expedient, to decern for implement, without waiting the issue of the appeal.
At the close of a reference, one of the parties paid a fee to the arbiter, which was reasonable in amount, and was said to have been paid in circumstances which implied acquiescence by the other party in the payment—held, that the first party was entitled to relief, to the extent of one-half of the fee, from the second.
The late David Clyne, S.S.C., took fifty-two shares in the Edinburgh Oil Gas-Light Company at its formation. After paying several instalments on his subscribed stock, he refused payment of two other instalments, and the company raised an action for their amount. Clyne raised a counter-action, claiming the sum of £1183 as the market value of his fifty-two shares at the date of his action. He alleged, that the company had unwarrantably deviated from their fundamental design and objects, and had transferred their whole stock to the Edinburgh Coal Gas Company, thereby defeating his intention in becoming a partner, and rendering themselves liable to indemnify him. Both processes were remitted to the Jury-Court, and, on the day of trial, the Lord President suggested the propriety of a judicial reference. The following minute was then entered into:—“The parties agree to refer the two actions to Mr John Boyd Greenshields, with full powers to determine all questions between the parties, and to determine the questions of expenses; and they request the Court to interpone their authority to this minute of judicial reference.” (Signed) “John Hope, for pursuer. James Keay, for the Oil Gas Company. Failing Mr Greenshields, the parties agree to refer to any referee to be named by the Lord President.” (Signed) “John Hope. J. Keay.” Whereupon the following interlocutor of Court was pronounced:—“Admits the judicial reference, and, in terms thereof, remits to the judicial referee to consider the causes, and to report, and continues both cases till such report is made.” (Signed) “C. Hope.” The jury, who had been impanelled, were then discharged. Mr Greenshields declined the reference, and the Lord President, “in virtue of the power given to him by the within judicial minute, and in respect Mr Greenshields has declined to accept, names Mr Duncan M'Neil, advocate, as judicial referee in these cases; and the Lords of new remit to the said Duncan M'Neill, as judicial referee, to consider the cases, and to report; and continue both cases until such report is made.” Mr M'Neill accepted of the reference, and the parties appeared before him, and pleaded, besides leading a proof. He pronounced an award in these terms:—“Primo, I find that, in the action at the instance of the Edinburgh Oil Gas-Light Company against Mr Clyne, the pursuers are entitled to decreet for £130 sterling, with legal interest thereof from the 10th day of January, 1826, and for the farther sum of £130 sterling, with the legal interest thereof from the 13th day of February, 1826, being the two calls or instalments concluded for in the summons at the instance of the said company against Mr Clyne, and amounting, the said two calls or instalments, with interest, to £289, 16s. 10
Clyne had in the mean time carried the former process by appeal to the House of Lords. He pleaded in defence to this action, 1. That it was premature, as the decree which it was thus sought to put in execution was under appeal, and might be reversed. 2. That the award of
The Company answered, 1. That it was expedient to have a decision in this case without delay, so that if it was to be taken to appeal, it might be disposed of by the House of Lords at the same time with the former actions, which had been disposed of by judicial reference; 2. That the award of the judicial referee was unimpeachable, and Clyne had recognised him as referee by pleading before him, besides being completely bound by the written minute of reference, signed by his counsel, under which the jury were discharged on the day of trial; and, 3. That Clyne was barred from objecting to the fee paid to Mr M'Neill, as he had failed to intimate an objection in due time; but, separately, the fee was confessedly reasonable. It was therefore justly due, and, having been paid by the pursuers, they were entitled to relief of one-half from Clyne.
Clyne died during the process, and his trustees appeared as parties to the action.
The Lord Ordinary “repelled the defences, decerned against the defenders, conform to the conclusions of the libel, and found the defenders liable in expenses.” *
_________________ Footnote _________________
* “ Note.—The Court having interponed its authority to the decree-arbitral pronounced by Mr M'Neill, in the judicial submission between the parties, after much opposition on the part of the defenders, they are not entitled to plead, as they have alone, either that Mr M'Neill was not duly appointed arbiter, that the proceedings before him were irregular, or that his decree was ultra vires. All these defences, and others of the same nature, are, in consequence of the decree of the Court, now final, to be held either as proponed and repelled, or competent and omitted. It is said that by the decree-arbitral an option is given to Mr Clyne, either to receive the sum awarded to him, on his surrendering his fifty-two shares, or to retain his shares, and give up his claim for that sum. But it is thought he had no such option. His action again at the Oil Gas Company was laid on the ground, among others, that the Company had transferred his right and interest in their stock to the Coal Gas Company, without his consent, and he claimed compensation and damages on that account. But when damage, after a long litigation, was awarded to him in satisfaction of that claim, his representatives have no right now to turn round and say that they will retain these very shares for the loss of which damages were awarded. Mr Clyne's option was made at the time he brought his action.
“No objection is made to the fee paid by the pursuers to the arbiter, on the ground that it was exorbitant and unreasonable. There can be no doubt therefore that the defenders are liable in one-half of it. It is said that it should hare been claimed as a part of the expenses of the action. But the arbiter found expenses due to neither party, except to the clerk, for his expense and trouble, for which he found them conjunctly and severally liable. For his own fee he had no power to decern, and therefore the claim to it remained to be enforced in another action; and the defender's half of it is competently concluded for here, as a deduction from the sum awarded to Mr Clyne,”
Clyne's trustees reclaimed,
Their Lordships, on the merits, unanimously thought the judgment of the Lord Ordinary well founded.
The Court adhered.
Solicitors: A. Gray, W. S.— D. Manson, S. S. C—Agents.