Scottish Court of Session Decisions

Subject_1 ARBITRATION.
Subject_2 Formalities of the Deed of Submission and Decree-Arbitral.

Colonel Erskine
v.
Lady Mary Cochrane

Date: 30 July 1714
Case No. No 49.

Arbiters may ordain all writs in implement, and prosecution of their decree, to be extended at their sight, after expiring of the submission.

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The Lord President of the Session and Lord Dun having pronounced a decreet-arbitral, upon a submission made to them by Colonel Erskine and Lady Mary Cochrane and her Husband, concerning their differences, and several claims to and upon the estate of Kincardine: The Colonel raised a suspension and reduction of the said decreet, upon this ground, that the same is entirely ultra vires compramissi.— 1mo, As to the subject matter of it, in so far as the arbiters have determined things not submitted to their judgment. For, 1mo, By the submission nothing is referred to them but the parties differences concerning the estate of Kincardine; and yet they are decerned to grant general discharges of all actions or claims competent to each other. 2do, The parties are decerned to ratify others rights, and not to quarrel the same, either upon rights then standing in their person, or such as they should acquire afterwards: Whereas they submitted only claims and controversies preceding the date of the submission. 3tio, The arbiters prorogate their own power after the submission was expired, by ordaining all writs in implement and prosecution of the decreet to be extended to their fight.—2do, The decreet is ultra vires as to the form thereof, the arbiters having been limited to determine one way, and no otherways, viz. point by point in jure; and yet all is done in the decreet by slump, andno particular determination given upon any one point pleaded by the submitters. V. G. Ochiltree is preferred to the house of Culross, yards, parks, and lands thereof, whereof a great part are not so much as named in his rights and infeftments. They find, that certain parts of the estate of Kincardine were omitted out of Earl Alexander's rights; and that therefore the chargers were preferable thereupon; and yet it is not told what these particulars were. The chargers are preferred to the haill bygone mails and duties of the house, yards, and others, to which they are found to have right for above 30 years, without any reason given. The arbiters appoint a communication of rights; that was no point of law, but of mere conveniency; and the Colonel is ordained to pay L. 30,700 Scots, where of L. 23,563 for the bygones of the Countess's annuity, the other L. 7136 in contemplation of all the charger's other rights; and of 80,000 guilders, one of 12,000 guilders with annualrents, one of 30,000, and 16,000; over and above a general clause of all other claims they have or can pretend to; where L. 7136 is to be paid by way of slump, for rights extending to fifty times as much, without preferring any of them in particular.

Answered for the chargers in general: Suppose the decreet were ultra vires in the particulars mentioned, yet that is not relevant to reduce it in toto, but in so far only as the arbiters decided in their decision from the power given them by the submission, as was decided 26th February 1709, Stewart of Innernytie contra Mercer of Aldie, (Forbes, p. 327. voce Indivisible.) And by the act of regulation, decreets-arbitral are only reducible upon corruption, bribery, or falsehood, alleged against the judges.

Answered in the particular: The arbiters have in no part exceeded vires compromissi. For, 1mo, The ordaining a general discharge to be granted, was not ultra vires; because it being subjoined to a restricted submission, it must be understood in the terms thereof, viz. a general discharge with respect to the things submitted; just as in other cases a general subjected to particulars is not understood to extend to things of another kind, than the particulars to which it is adjected. Besides, there is no difference betwixt the parties, but what, in respect of the difference arising from the submission, came in to be determined: For Ochiltree having demands as a creditor against the Colonel as a purchaser, all kinds of claims that the Colonel had against Ochiltree, were brought in by way of compensation or payment. 2do, The decreet did most justly decern the Colonel to communicate to Ochiltree, not only the rights he then had, but also such as he should acquire afterwards. For the Colonel had submitted not only for himself, but also as taking burden for the whole creditors on the estate of Kincardine, in so far as they do or may come within the price, or any manner of way whatsoever; and he had not yet acquired in the whole debts, 3tio, As to the arbiters continuing a power to themselves beyond the time to which the sentence was restricted, It is answered, utile per inutile non vitiatur. Besides, this was no extension of their power; because they had given already their decision, which might well hold to expedite the writs at their sight, the day and modes of implementing might be after the decreet. 4to, The quality in the submission, that the arbiters should decide point by point in jure, did not require that upon every point there should be a special interlocutor ingrossed in the decreet-arbitral, which would have been an endless and superfluous labour. But the clause was only adjected for directions to the arbiters, how they were to determine, not by slump, but upon a full cognition and hearing of the cause; and in the manner of an legal, not an arbitrary decision, which accordingly was done. For there is not one point that was not, by both parties, and their lawyers, viva voce, and in printed informations, laid before the arbiters; and every several interest has got a decision in the decreet arbitral. And it is well known, that in the case of a judicial decreet, where every thing is decided point by point in jure, one word by the judges preferring a right, is in law a decision point by point, of the whole allegations, although every particular argument have not a particular interlocutor, applicando singula singulis. For wherever a judge or arbiter prefers such a right, it implies a sustaining the allegations for it, and repelling those made against it, as much as if every one of them had a special interlocutor.

Replied for the suspender in general: Decreets-arbitral are of the same import, and have the same effects that the decreets of public judges have, and have no greater force, except in so far as express statute has altered their nature. For though, by a late law, decreets of Session, labouring under a nullity, are not to be reduced, except in so far as parties are prejudged by that nullity, that privilege is not extended to any other decreets, which must stand or fall according to the former law, which for one nullity opens the whole decreet. Therefore, decreets-arbitral which are null, and ultra vires as to one point, cannot stand good as to the rest. The case of Innernytie doth not meet; for there the arbiters did not go beyond their powers in determining what was not submitted, but omitted to determine a point which they ought to have determined; and instead of doing so, remitted the same to another: Which defect was supplied by the party interested in the undetermined article, his passing from the same simpliciter; and if Ochiltree will pass from the articles quarrelled in this decreet, he may make of the rest what he will.

Replied in particular: 1mo, It is inconsistent to say, that suppose parties be decerned to grant a general discharge, yet it is only to be understood a particular discharge. Nor is it to the purpose, suppose it were true, that a general clause Subjected to particulars, does not extend to things of a different kind, for still such a general clause extends to other things of the same kind, yea it would extend to other things of a different kind, provided they were not of a greater import; and it is thought the arbiters had no power to ordain parties to discharge any thing, though of the same kind, and of no greater moment, than what was referred to them. 2do, The Colonel submitted only as taking burden for the creditors that came within the price; whereas he is decerned to communicate to Ochiltree all rights he shall acquire, whether they come within the price or not, which was plainly ultra vires. 3tio, An arbiter, that minute he gives his sentence, is functus, and hath no power to meddle in the execution or implementing thereof; and indeed, the framing of the writs was a most material part of the transaction, such as should have been perfected before expiring of the submission, the whole, in effect, depending upon it. 4to, It is not sufficient that there be such an interlocutor or decerniture, as virtually repell or sustains every interest, or every allegation: For indeed, a slump decerniture does that; but it ought to be expressly done. So that the argument from the method of the Lords of Session, is not to the purpose; for indeed, they are not bound to determine point by point; but one interlocutor sustaining a libel, or sustaining defences in general, is sufficient.

The Lords found, That the general discharge is understood to extend no farther than the particulars which concern the lands and estate of Kincardine, expressed in the submission and decreet-arbitral; as also, that the rights to be acquired, decerned to be communicated, are understood to be such rights only as fall within the price of the said estate: And repelled the reasons founded on the prorogation; and found. That the decreet-arbitral has decerned the subject submitted point by point in jure, according to the meaning of the submission; and therefore repelled the reasons of reduction, and assoilzied.

Fol. Dic. v. 1. p. 51. Forbes, MS.