A decree arbitral being ultra vires compromissi, cannot be registered, even with respect to that part of it which is within the submission.
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There was one, named Lockhart, that desired a decreet-arbitral, given betwixt him and the Lady Polmaise, to be registered. It was alleged by the Lady, That the said decreet was ultra vires compromissi, et ideo ought not to be registered, because it bore and expressed the consent of the Laird of Polmaise, who had neither subscribed the same, nor has nothing ado anent the compromit. To the whilk was answered, That, in so far as concerned the Lady, it ought to be registered, because she had both compromitted, subscribed, and homologated the same, et utile per inutile non vitiatur. To this was answered, Quoad regula illa juris utile per inutile, &c. non habet locum nbi legis authoritas, vel natura rei, vel voluntas contrahentium impedimenta sunt, et in hisce casibus utile per inutile vitiatur et corrumpitur. L. 1. § 18. D. De Aqua quotidiana; et manifeste et clare L. 8. §. 7. D. De Fidejussoribus; and so the law being manifest and plain, against the said decree that was given ultra vires compromissi, prout in L. 32. § 15. D. De receptis qui arbitrium, &c.; and so the Judge having decerned, and given forth his decreet ultra vires compromissi, reddebat illum suspectum The Lords, after long reasoning among themselves, found that the decree ought not to be registered, licet bona pars Dominorum in contraria fuerunt opinione.
