Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Glendinning of Parton v. Neilson of Corsack
Date: 27 December 1699
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Neilson of Corsack obtains a decreet in foro against Glendinning of Parton, for restitution of the rents of his lands intromitted with by him during his forfeiture, and for the annualrent of the said mails and duties since Martinmas 1688. Of this decreet Parton raises suspension and reduction, on this reason, That, for the mails and duties uplifted by me, I am willing to restore, and have offered them by way of instrument; but, quoad their annualrent, there is neither law nor warrant for it, seeing the act rescissory in 1690 has no such provision; and, though libelled at random, yet it was never adverted to by the defender's advocates, and so has passed by mere omission; and the clerk has, in extracting, made the decerniture as broad as the libel.
Answered,—There being other defences proponed in the decreet, your not objecting against this article of annualrent, as well as you debated against the rest of the libel, must bind you; seeing Competent and Omitted can no more loose a decreet in foro, by the regulations 1672, than Proponed and Repelled. And, esto it were iniquity, and that it was pars judicis to have adverted thereto, and not suffered an illegal conclusion to enter into the decreet, yet being omitted to be proponed by the defender's advocate, and noways noticed by the judge, the same cannot be rectified now: seeing the Lords cannot reduce their own decreets upon injustice; but that only belongs to the Parliament. Some urged, it was a nullity in the decreet, and so might very well fall under the Lords' cognizance: but this seemed only to change the names of things, which cannot alter their nature; for the reason truly resolved into the iniquity of the sentence, as contrary to law. And, though the Act 1690, and the 25th Act 1695, allows annualrents for composition of forfeitures, yet there is no law that mails and duties bear annualrent: and though the Lords, in some cases, have modified an equivalent for annualrent, nomine damni, yet this was not so done here, but decern for the annualrent itself, without any law.
The Lords were all persuaded the defender had got wrong, but found not themselves empowered to rectify it, else they might, on the same pretence, annul all the decreets in foro, which are the great security of the people and their properties. Some argued it was in the Lords' power to redress it; but the plurality carried it ut supra. Durum est, sed ila lex scripta. See Stair, book é. tit. 1. anent the authority of the Lords of the Session's decreets; 22d June 1676, Irving against Ross; and 30th November 1678, Grant and M'Ken zie.
