Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Gordon of Grange v. E Galloway.
Date: 20 January 1631 Case No. No 262.
Found that after sentence given in fora contentioso, the party then compearing ought not to be heard to reduce that sentence, upon the reason of instruments and writs newly come to his knowledge.
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A decreet for payment of rental bolls obtained by the Earl against Grange, in foro contradictorio, the defender compearing, and proponing his defences, whereof some were admitted, and some others elided by replies, being desired to be reduced by the defender, upon this reason, that he had recovered some writs, newly come to his knowledge since the sentence, whereupon he was ready, and offered to make faith, and which he alleged would have elided that pursuit, if he had known thereof, and timeously had proponed his defences thereon, and which he alleged ought now to be received, albeit after sentence, the writs being made by the pursuer's self, who now was defender in the reduction, and subscribed by him, and done betwixt him and another party, whereby the party, now pursuer, his ignorance thereof is probable and excusable, being in facto alieno; and the defender alleging, That post rem judicatam, after sentence so given against the pursuer then compearing, this reason ought not to be received; for it were a dangerous practique to reduce a sentence super instrumentis noviter repertis, which should make all pleas endless. The Lords found, that after sentence so given in foro contentioso, the party being then compearing, ought not to be heard, to reduce that sentence, upon the foresaid reason of instruments and writs, newly come to his knowledge, and therefore assoilzied from that reason and pursuit. This is agreeable to the civil law, ‘L. Sub specie Cod. De re judicata, & L. sub prætextu Cod. De transactionib. & L. Imperatores, D. De re judicata; & quamvis L. Admonendi, D. De jurejurando dicat, ex instrumentis novis repertis sententiam latam ex juramento retractari posse, tamen hoc obtinet quando sententia lata est, ex juramento suppletorio et necessario, viz. quando ob defectum plenariæ probationis judex defert rem juramento partis, non vero sic in juramento judiciali et voluntario, quod parti ab adversario defertur; sed non capio rationem differentiaæ, viz. cur leges negent restitutionem adversus rem judicatam ob nova instrumenta reperta, et tamen propter eadem reperta concedunt restitutionem adversus judicatuum, ex juramento suppletorio, cum videatur magis esse negandam restitutionem, ubi intervenit juramentum;’ but in this case the exception was sustained, for not admitting of the reason upon the writs newly come to knowledge, seeing it was much questioned and doubted, if the same being proponed before sentence, would have been relevant or not. And if the same might have been now received, the writs should have been more clear to have produced the pursuer's intention than these were, so that here they were not admitted. Vide L. Unicam Tit. 9. Lib. 10. Cod. De sententiis adversus fiscum latis retractandis, quæ lex dicit has sententias intra triennium retractari posse, et post id tempus ex prævaricatione et fraude, sed hoc in fisco.
Act. Nicolson & Gilmore.Alt. Stuart & Neilson.Clerk, Gibson.
Fol. Dic. v. 2. p. 200. Durie, p. 556.
