A decree-arbitral was sustained, tho' the arbiters remitted a point in dispute to the determination of other arbiters. The point remitted was not specially mentioned in the submission.
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Certain special controversies betwixt these parties being particularly expressed, and therewith all other questions betwixt them generally, whatsomever they were, being submitted to arbiters; who having decerned, the decreet was quarrelled, by way of suspension, as null; because, in one article of the decreet, the Judges had referred the payment of the taxation, whether of the parties should pay the same, to the judgment of two Lawyers, one to be chosen by each party; by the which reference, they not determining upon one article controverted, the whole rest of the decreet was null; for the suspender alleged, That the Judge not deciding in all the questions, but remitting one to others, which they could not do, after they had accepted on them the decision of all, thereby the decreet is null; for the which he alleged, L. 19. D. De Receptis. And the other party alleging, That the decreet could not be null in all the articles, albeit it were yielded, that it were null in that head, because, utile per inutile non vitiatur, especially ubi capita sententiæ sunt separa bilia, as in this case. The Lordsfound the foresaid article of the decreet, remitting to the Lawyers, to determine on the taxation, rendered not the whole decreet null; because, though the civil law and reason declare such clauses to make the whole decreet null, where any article specified in the submission particlarly accepted, to be decided by the arbiters, is not decided, but referred to others, quo casu nulla est sententia, except by the power of the submission the Judge has warrant from the party, so to refer the same to others, et pro hoc facit, L. 32. § 16. D. De Receptis, &c. Vid. L. 19. § 1. et L. 21. § 12. D. eod. tit.; ex quibus scire licet an sententia lata super quibusdam rebus compromissis, super aliis sutem non lata, valeat in iis, supra quibus lata est; but in this case questioned, viz, anent the taxation, it was not specially submitted, but mentioned in a clause of the decreet, so that the law militated not against the same: Likeas, the party renounced simply that clause, and all interest and benefit which he could have by virtue of the same, or for relief of any taxation, so that there seeded no sentence thereon, albeit it had been specially set down in the submission, as it was not, and, therefore, they decerned as said is.
Clerk, Gibson.
Fol. Dic. v. 1. p. 463. Durie, p. 511.
