Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Town of Inverness
v.
Forbes

Date: 16 July 1674

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In the declarator at the instance of the feuars holding of the Town of Inverness, against the Town, decided the 14th day of July instant, it was particularly alleged against Cullodin, That he could not be declared free of the private stents of the Town, because the Town had obtained decreet against him, decerning him, “In all time coming, to be liable to the Town's stents, for their particular use, and that upon his own consent;” for the decreet bears, “that he was judicially present, and consented;” so that, being both a decreet of consent, and in foro contradictorio upon a full debate, it was sufficient against him. It was answered, That the said decreet was a decreet of suspension of a stent then imposed, extending to 35 merks; and, by the decreet, it appears that Cullodin consented only to the payment of the 35 merks; which in the dispute bears expressly, “Providing it were no preparative in time coming;” and bears, “That the Lords, of consent, found the letters orderly proceeded for 35 merks;” and also the Lords declare, That Cullodin and the other feuars shall be liable for all necessary stents of the Town in time coming, being laid on in the method that they prescribed; and doth not repeat the consent as to that declaratory article; which, being ultra petita, and extrinsic to the process, cannot be instructed by the decreet itself, unless it were warranted by Cullodin's subscription; as was found in the case of the Laird of Buchanan against Lieutenant-colonel Osburn: for there was nothing in the process in time coming, but a charge for a particular stent; and there is a protestation, in the end of the decreet, against stents for the expenses of the Town's process, which shows the consent was not, as the decreet bears, “for all necessary private stents:” And, as to the decreet, in so far as it is a decreet in foro, it was very just that the Town, being in long possession of imposing private stents upon the feuars, should continue in that possession, until, in judicio petitorio, the feuars should liberate themselves by reduction or declarator, as now they have done: And there is nothing more ordinary than to repel, in a suspension, a reason founded upon the point of right, and even to find the letters orderly proceeded, for bygones, and in all time coming, in possessorio; which doth not clash with the contrary decreet by reduction or declarator in petitorio: as if any party being stopped in their possession of a high-way, should pursue the stopper, if the use of that highway for many years were proven, the Lords would decern the defender to desist from troubling the pursuer in that way in all time coming; and yet the defender might, in a declaratory action, instructing that there were neither constitution nor prescription of that way, be liberated from that servitude. And though, in the debate of this decreet of suspension, the Town mention their possession, and Cullodin his infeftment, pro omni alio onere, yet the Lords' interlocutor doth not express whether they proceed in the point of right or possession; and therefore the sentence must be understood secundum naturam negotii, not to be as to the point of right, there being then no declarator depending; but, as to the point of possession, that the Town might continue their possession of stenting, till the point of right were declared. It was replied, That the decreet was opponed, bearing to be of consent, which needed not to be repeated to every article; and that the protestation did confirm the consent, as to any other stents but those for expenses of process; and, however, it being a decreet in foro, decerning for all private stents in time coming, acquiesced in by the space of ten years, it could not be quarrelled of injustice, but behoved to stand as a perpetual rule. The Lords, having considered the whole decreet, found, That the consent was not adhibited to the whole articles in the sentence; and therefore did not sustain it as a decreet of consent, to exclude this declarator; and found, that, albeit it was in foro, being only in a suspension, it did not exclude the suspender's declarator of liberation.

Vol. II, Page 277.