Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Thomas Kennedy, v. Bannatyne, Bonnar's Heir
1693.
January12,and
February9.
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Jan. 12.—The Lords having advised the case between Sir Thomas Kennedy and Bannatyne, Bonnar's heir; they adhered to the decreet in foro, and only sustained this process in so far as utiliter gestum et in rem ver sum to Bonnar's heirs; and ordained him to give in a condescendence on Cornelius Neilson's expenses, he had wared out qua factor, for the heirs; and in so far only as they were profitable, the Lords would modify the account; but refused to open the decreet on the nullities and informalities pretended against it.
Vol. I. page 544.
1693. February 9.—The Lords re-advised Sir Thomas Kennedy's reduction against Govan about the circumvention done by Cornelius Neilson on Bonnar's heirs; anent which vide supra 12th January 1693. And sundry were for finding it a nullity in the decreet, that it bore the factory was reduced as well as the contract and ratification, and there was no minute nor signature of process ordering and warranting that. But it being urged, 1mo, The factory fell in consequence with the other writs reduced; 2do, There are many extensions in style that need no warrant; the Lords demurred to find it a nullity, to cast loose and open the whole decreet: but allowed the parties, before answer to that nullity, to be heard on the material justice of the cause; not that they turned the decreet into a libel, but ordained them to debate the point tanquam in libello, which is on the matter all one thing; as appeared both in the opening of Cardrosse's decreet on Kincarden, and of Queensberry's against Douglass of Monsuald, and Lilleas Currier.
And here there occurred a debate, whether an informality of this nature opened the decreet in totum, or only quoad that article of the factory. For the President argued, if the decreet were kept fast as to all the rest of the points, it might be a great prejudice; because the Lords not being Judges to reduce their own decreets on iniquity, they have no other way to revise these decreets wherein injustice has been committed, except allenailly by the help of some nullity in the decreet; which would not effectually answer that end, if it did annul that decreet in totum; as was found in 1691, in the Earl of Aberdeen's decreet of the Mint against my Lord Lauderdale. And l. 27. D. fam. ercisc. favours this opinion, that sententia vel stat vel cadit in totum, et non potest pro parte valere et in alia parte non valere, being quid indivisum; but see I. 41. eod. tit. where judex appellationis may rescind the inferior Judge's sentence in one point, and ratify it in another.
