A decree arbitral was sought to be reduced upon this head, that it was ultra vires compromissi, in so far as the arbiters had decerned the parties to grant mutual general discharges, tho' they had only submitted some particular claims. The Lords rectified this part of the decree, but sustained it quoad ultra.
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There being a decreet-arbitral pronounced betwixt Patrick Crawfurd, merchant, Hugh Hamilton, Campbell of Glasnock, and Hugh Gordon; and Patrick Crawfurd finding himself enormly lesed thereby, in ordaining him to pay L. 10,000 for lands that were not worth 10,000 merks; and that now, by the late act of regulations, 1695, decreets-arbitral may not be quarrelled on lesion and iniquity, but allenarly in corruption and falsehood; he raises a reduction of it on this reason, that the decreet was intrinsically null, as ultra vires compromissi, he having only submitted some particular claims, and yet they had determined upon the right of lands, and decerned each party to give general mutual discharges to the other. Answered, 1mo, The arbiters have noways transgressed the limits of their power, for the general discharges must be limited, and restricted to the subjecta materia of the claims submitted, and can go no father. 2do, Esto they had exceeded their power, yet that excessus can never annul the decreet-arbitral in toto, but only be a ground to redress and reform what they determined beyond warrant; even as in decreets in foro, nullities do not lay them open, farther than to rectify the error complained on, all the rest standing firm and fast; and, by the article relating to decreets-arbitral, they are declared irreducible Upon any ground or reason whatsoever, except bribery, corruption, and falsehood: Now, if all be excluded except those cases excepted, then the being ultra vires will not reduce and annul the decreet-arbitral, quoad the articles expressly submitted, and so intra vires; else that act of regulation would signify nothing; whereas, decreets-arbitral are the strongest of all sentences proceeding on the parties own consent, and are not regulated by the precise terms of law, but only may be reviewed quoad any debordments, as was found, Feb. 20. 1633, L. Athol against the E. of Athol, (see App. to Arbitration), and as transactions, though reduced, as proceeding super falsis instrumentis, in one particular, yet subsist quoad reliqua capita separata, l. penult. C. De Transact, even so in compromits. Replied, That the act, making judicial sentences in foro contradictorio only null pro tanto, and not pro toto, is a correctory law, and cannot be extended de casu in casum; and a decreet-arbitral is jus indivisibile, and so connected, that the loosing of one point makes all to fall asunder, like a sheaf of arrows, whereof one is pulled out; and, by the Roman law, if all the points referred be decided save one, that one keeps the whole open; and the excepting bribery. &c. was never intended to exclude nullities, such as the determining ultra vires, and the submission's wanting writer's name or witnesses. The Lords thought the argument from the judicial decreets to consensual ones, proceeding on arbitration, not convincing; but found, by the regulations 1695, decreets-arbitral were so secured, as to be unquarrellable quoad what was legally and formally determined, by what was therein ultra vires and unwarrantable, else such decreets had no strength nor firmness by that act; and, therefore, found the decreet binding and obligatory, quoad all that was submitted, and only null as to the general discharges, which they rectified by this interpretation, that they should extend no farther than what was contained in the claims given in; and so here utile per inutile non vitiatur.
Fol. Dic. v. 1. p. 463. Fountainhall, v. 2. p. 168.
