Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Maxwel of Pollock
v.
Maxwel of Cowhill

Date: 27 February 1624

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In an action of reduction, at the instance of ——— Maxwell of Pollock against ——— Maxwel of Cowhill, for reduction of an heritable right of lands holden of the abbacy of Melross, upon the reason of anteriority, because the pursuer was first infeft and first confirmed,—the defender compearing, and proponing an exception that there was a submission betwixt the parties' fathers (they then being infeft in the lands,) of all controversies betwixt them, to certain judges, whereupon decreet followed, by the which the right to the lands libelled was decerned to pertain in all time coming to the excipient;—this exception was not sustained: for the Lords found this decreet not sufficient to maintain the defender in the right of the lands controverted, proceeding upon a submission of the tenour foresaid; for the Lords found that a submission, wherein parties submitted all controversies generally, could not be a warrant to decide the heritable right of the lands to pertain to one of the parties and to take the same away from the other party; except either the right of the lands had been especially submitted, or else that the same had been given in by the parties in their claims before the judges: and that the general clause, submitting all controversies betwixt the parties, could not be a sufficient warrant to pronounce that decreet.

Scot, Clerk.

Vid. 15th December 1631, Dr Kincaid against Aikenhead.

Page 114.