Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Maxwell
v.
Lindsay

Date: 13 February 1679

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Maxwell of Cowhill raiseth reduction of a decreet-arbitral, pronounced betwixt him and ——; as being ultra vires compromissi, and pronounced after the expiring of the submission.

The defender alleged Absolvitor, Because the pursuer had ratified the decreet arbitral, and acknowledged himself debtor for 2000 merks decerned thereby; and, in corroboration thereof, had disponed land for the same.

The pursuer replied, That he was under caption when he granted the said right; and there was no abatement granted to him, but he gave security for the whole sum decerned; neither did he ratify the decreet-arbitral, nor pass from all question against the same, but only, in corroboration thereof, granted security: and though he had made actual payment upon distress, it would import no homologation, nor would exclude him from reduction of the decreet and recovery of the money.

The Lords repelled the defence founded upon the security granted, in respect of the reply,—that the defender was under caption: which, though it would not reduce the deed as done by force, yet it did not import homologation, as in the case of voluntary payment without distress.

Vol. II, Page 693.