Scottish Court of Session Decisions

Subject_1 ARBITRATION.

M'Kenzie of Redcastle
v.
SirThomas Calder

Date: 11 June 1751
Case No. No. 9.

No nullity, that the award is to a certain extent ultra vires.

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There being two submissions, one general of all claims excepting one particular, and thereafter a submission of that particular claim to the same arbiters, but without any general clause; the arbiters gave one decreet on both, and inter alia, by mistake, ordered general mutual discharges of all claims prior to the date of the second submission. One of the parties objected this as a total nullity of the decreet-arbitral, though he did not pretend to have any new claim arising after the date of the first general submission; but we thought it was no nullity in the decreet. There have been many decreets-arbitral that ordered such discharges of all claims prior to the decreet, which, though erroneous and ultra vires as to claims after the submission, yet were never found to annul the decreet as to the matters submitted.

See Hepburn against Hepburn, 1st December 1736, voce Homologation and voce Writ.

See Kerr against Clerk, 19th February 1751, voce Bill of Exchange, relative to submision by mutually accepting bills.

See Notes.