Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Grahame, Tutor of Gerthy, v. Sir Robert Murray of Abercairney
1692.
Dec.21 and
24.
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Dec. 21.—In Grahame tutor of Gorthie's declarator against Murray of Abercairney; the Lords found, though a decreet of perambulation was never so null by intrinsic nullities, yet the party could not via facti remove the marches; such reverence being due to a Judge's sentence, till it be reduced or annulled, pro veritate habetur. But if it was palpably defective, then consideration might be taken thereof, in the contravention of the lawborrows, by an abatement or mitigation of the penalty; but allowed Abercairney and the tutor to adduce what farther probation they pleased.
Vol. I. page 535.
Dec. 24.—The Lords advised the probation adduced by the tutor of Gorthy, of Sir Robert Murray of Abercairney's contraventions, mentioned 21st current; and in regard the decreet was informal, therefore they would not modify the full penalty of the act of Parliament, viz. act 166, 1593; but modified the half of the fine of a great Baron, (in which rank Abercairney was,) viz. L.500 Scots; and reserved the modification of the tutor's damages to the conclusion of the cause, and the advising of the new probation to be led by either party.
