Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Robert Paterson
v.
Mr George Jolly

1684. January.

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A decreet of the English judges, in foro, being suspended upon iniquity, for their repelling this defence, That the summons which should have been executed upon twenty-one days, were executed upon fifteen days;—Alleged for the charger, That the decreet not being reviewed within year and day, it could not be quarrelled but upon such grounds as a decreet of the Lords is quarrellable; and their decreet is not quarrellable upon iniquity. Answered, Though decreets of the English judges could only be quarrelled within year and day for want of authority, they are quarrellable after year and day as other decreets, by the ordinary remedy of suspension and reduction, upon relevant grounds: And, whatever might be said as to doubtful grounds of iniquity, yet, to repel a defence warranted by an express Act of Parliament, viz. that summons should be executed in twenty-one days, cannot be justified: for that is judicare de legibus, and not secundum leges. The Lords differed much in opinion, if this ground of iniquity was to be sustained against the judges' decreet: but,—it having appeared from inspection of the decreet, that the defence was repelled upon this relevant reply, That the libel was proven, scripto, by instructions given out therewith ab initio,—the point debated was waved, and the decreet sustained.

Page 266, No. 946.