Scottish Court of Session Decisions

Subject_1 GENERAL SUBMISSION.

Dr Kincaid
v.
Alexander Aikenhead

Date: 15 December 1631
Case No. No 3.

In a general submission of all controversies, questions, sums, &c. the arbiters decerned one party to renounce two heritable rights. The decree arbitral was sustained, and the arbiters found not to have exceeded their powers.

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In a reduction at the Doctor's instance of a decreet arbitral, pronounced betwixt them, by Mr Thomas Sydserff and Mr John Maxwell, upon this reason, That the same was ultra vires compromissi, and that there were no claims given in; for the submission was of all controversies, questions, sums of money betwixt the parties, and what either of them should do to others thereanent; and the judges have decerned the Doctor to renounce a bond of 500 merks, being an heritable bond owing to him by the said Alexander Aikenhead; and also to renounce an heritable infeftment of an annualrent of L. 50, which he had out of the said Alexander's land in Edinburgh, redeemable for L. 500; which two particulars were never questioned betwixt the parties, nor mentioned, especially in the submission; neither can they be drawn under any word of the submission, being of the tenor foresaid.—The defender alleged, That the decreet was good, notwithstanding of the reason, and not ultra vires, in respect the submission gave them power to decern anent all questions and sums controverted betwixt the parties; so that albeit the arbitrators had never taken in any claims from the parties, yet upon their own conscience they might have found, that any of the parties should pay to others such sums as they should think reasonable, that being within the power of the submission; and as they might do that, so they might very well decern in place thereof, the one to quit an heritable right to the other, instead of payment of money.—And the pursuer replying, That albeit the submission gave the judges power to decern sums of money, as they should find due in reason, yet under that clause they had no power to decern upon heritable rights, which were neither submitted, nor any pretext or claim made thereto by the party to whom the judge has decerned the heritable right to be renounced; the Lords assoilzied from the reasons of reduction, and found, albeit the submission was of the tenor foresaid, yet that the said judges had not decerned ultra vires compromissi, albeit they had decerned upon the heritable securities of lands, as the same bears; but sustained the decreet, and found the not giving in of claims, albeit it had been so, no cause, to infringe the decreet.

Act. Advocatus & Mowat. Alt. Stuart & Burnet. Clerk, Gibson. Fol. Dic. v, 1. p. 345. Durie, p. 609.