Scottish Court of Session Decisions

Subject_1 ARBITRATION.

M'Kenzie of Redcastle
v.
Sir T Calder.

1751, June 11.
Case No. No. 9.

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These parties entered first into a general submission of all claggs and claims, excepting one particular claim, and sometime thereafter they entered into another submission to the same arbiters of that claim, but without any general clause. The arbiters gave in their decreet on both, and ordered general discharges to be granted of all claggs and claims before the date of the last submission. Redcastle wanting to get free of this decreet-arbitral, suspended it as being ultra vires in ordering discharges of claims arising after the first submission, which the second submission gave them no power to do, though he owned that there were no new claims known to him. The charger inter alia alleged homologations, by giving up vouchers to be burnt, whereof the Ordinary allowed a proof before answer. Redcastle complained, for that the proof by witnesses to rear up claims was not competent. But we thought there was no nullity in the decreet; that though the decreet would be good only as to claims preceding the first submission, yet that was no nullity, especially since there were no new claims; as we have seen sundry decreet-arbitrals, ordering such, discharges of all claims preceding the decreet erroneously, instead of preceding the submission, which was never found a nullity.