declined if they be of any of those Relations to the other Party Fifthly If the Judge be a Party or have any interest in the Cause Sixthly If he have showen any malice or enmity against the Complainer Seventhly If he have committed any Iniquity by repelling any relevant or competent Alledgence or sustaining that which is irrelevant or incompetent against the Complainer These or like Reasons of Advocation being found relevant and instructed Letters of Advocation are pass'd under the Signeâ—â— commanding the inferior Judge to proceed no further but to send the Process and all that hath been done therein to the Lords for which a Term is assigned Which being past the Pursuer of the principal Cause and Defender in the Advocation gives in to the Clerk a short Copy of the Advocation and craves Protestation and Remit which is admitted of course by the Clerk if none compear to produce the Advocation But if any appear some Dayes after are assigned to him to produce which is marked by the Clerk upon the Copy and being again called with certification That if he do not then produce Protestation will be admitted and the Cause remitted to the inferior Judge at that time if he produce not Protestation will be admitted If the principal Advocation be produced the same is given up to the Defender against whom if he do not return it within four Dayes together with the Clame before the inferior Judge Protestation is admitted But if he return it the same is inrolled in the Roll of Advocations according to the Date of the Return And when it comes to be called by the Ordinary the Pursuer of the principal Cause produces his Clame with the Copy of the Advocation which was returned and craves Protestation and Remit which if the Raiser of the Advocation do not compear or insist not in his Advocation is accordingly granted But if the Raiser of the Advocation compear and insist the Advocate for the Pursuer of the Principal Cause doth briefly relate the Cause and before what inferior Court it was pursued and craves it to be remitted and the Advocate for the Raiser of the Advocation repetes his Reasons of Advocation for which he alledgeth the Cause ought to be advocat to the Lords which stand mainly in the Points before adduced The Reason of Advocation upon Incompetency of the Judge is most ordinary and that either in regard of a personal Priviledge of the Party conveened as in the case of the Members of the Colledge of Justice who by Act of Parliament have the priviledge that they may advocat their Causes from any inferior Court to the Lords or in regard of the matter so no inferior Judge is competent to discuss the Nullities of any Right neither are they competent to Declarators of Escheat and several other Actions The Reason of Incompetency may also be founded upon the Parties not being within the Iurisdiction All these Reasons of Incompetency are elided by the Partie`s compearing and proponing any Defense except it were a Declinator For by proponing any other Defense he acknowledges and homologates the Authority of the Judge and therefore cannot question the same upon the point of Incompetency But if the Incompetency arise upon the matter in question which did not not appear at first but appeared thereafter upon the Debate of the Parties as if the Cause dipped upon the discussing and competition of different heritable Rights or if there arise a Debate upon the Nullity of any Right in these Caâ—es compearance and acknowledgement of the Auctority will not exclude the Reason of Advocation The Reason of Advocation upon suspition of the Judge as too much interessed in the one Party or too much unfriend to the other stands much in the arbitrement of the Lords the precise Degree of Consanguinity or Affinity or the acts of Enmity not being determinat in Law And it is the same in the case where there are more Judges and the Reason meets but with some of them or only with the Deputes or some of them or only with the Clerk When the Reasons of Advocation are dubious sometimes the Pursuer of the principal Cause and sometimes the Ordinary will offer to the Raiser of the Advocation to advocat of Consent provided the Pursuer of the principal Cause will dispute the Cause instantly or otherwise will dispute the same without further sight of the principal Process or extracting an Act of Advocation For when otherwise the Parties advocat of Consent they are to do it when the Clerk calls and there must be an Act extracted upon the Consent If the Cause be advocat upon the Relevancy of the Reasons the same must be instantly instructed and if they consist in facto as the Residence of the Party the Affinity or Enmity of the Judge the Raiser of the Advocation ought either to have Witnesses instantly ready to prove or at least Testificaets of Persons above exception and known to the Lords For there the question is not for deciding of the principal Cause Advocations are hardly sustained after Litiscontestation before inferior Courts unless it be upon the Reason of Iniquity which is alwayes sustainable and doth sometimes with one breath determine both the Advocation and principal Cause The Cause being advocat either of Consent or by Authority of the Judge the principal Cause advocat being seen by the Raiser of the Advocation thereby become Defender of the Cause together with the Act of Advocation extracted then it comes in as an ordinary Cause in the first Instance But the Defender will be reponed and heard upon any Defense which was unjâ—stly repelled to him by the inferior Court and upon any other he pleaseth because one being unjustly repelled he was not obliged to propone any further The order in discussing of Suspensions is thus The Charger against whom the Suspension is obtained after the Day of compearance in the Suspension is past gives a short Copy of the Suspension to a Clerk and causeth call it in the Outer-House If none compear for the Suspender Protestation is admitted of course If an Advocate compear for the Suspender then the Clerk assigns a short Day to him to produce the principal Suspension and at that same time the Charger may give him out the Charge being the Decreet or Sentence obtained The first Diet being come the Clerk calls the Copy again and assigns a second shorter Time with certification That if he produce not Protestation will be admitted And then calls the third time and if the principal Suspension be not produced with the Charge if it was given out in time Protestation is admitted All which is marked by the Clerk on the back of the Copy and being put in the Minut-Book and read it may be extracted the next Day But during that time the Production of the Principal with the Charge to the Party Clerk or Keeper of the minut-Minut-Book will stop the Protestation The which order is also used for getting back of Advocations and seing
Oath with Certification if he compear not and depone he shall be holden as confess'd After the last day of compearance is past if the Pursuer insist not the Defender may compear and produce a short Copy of the Citation given to him which being delivered to a Sub-Clerk he will thereupon call the Pursuer of course before the Ordinary comes out And if no Advocat compear for the Pursuer the Clerk will admit Protestation so called because the Defender's Advocat doth either really compear or is reputed to do so and to protest That his Client being cited to such a Day and that Day past the Pursuer not compearing to insist He may not be obliged to answer till he be summoned of new again Which Protestation the Clerk admits and extracts a Sentence of the Lords bearing them to have admitted the said Protestâ—tion which is a kind of Sentence absolvitor from that Instance and any thing done thereafter till new Citation will be null If any Advocat compear for the Pursuer the Clerk will assign him a Day to produce his Summons and then will call again upon the Copyâ— and give him a short Diet more to produce with Certification that Protestation will be admitted And then calling the third time the Ordinary will admit Protestation unless the Process be produced Upon which Protestation the Defender may raise a Summons against the Pursuer to insist with Certification if he insist not never to be heard again Wherein if the Pursuer of the principal Cause appear he will get a Day to produce and insist at which time Certification will be admitted Or if at the first the Defender compear not the Day of compearance being past if the Pursuer of the principal Cause appear he gives in his Summons to a Sub-clerk who calls the same after the Day of compearance is past though there be no Judge present And if none appear for the Defender the Clerk writes thereupon and either decerns or assigns a Day to prove as the Procurator demands or grants Certification But if the Cause be not ordinary and obvious the Clerk must advise with the Lords who will consider the Relevancy of the Summons and the sufficiency of the Probation and either give Act or Sentence as they see just or otherwise forbear if the Libel be not relevant and proven In ordinary Cases the Clerk extracts the Decreet or Act as if it were done upon special notice of the Lords If any Compearance be made for the Defenders the Clerk then marks upon the Summons or Act of Continuation the names of the Pursuer's Advocat and Defender's in these terms Actor such a man alter such a man to see After which there can be no further procedure till the Process be seen by the Defender's Advocat And if there be several Advocats for several Defenders the Process is marked to be seen in such a mans House where they should either conveen to consult their several Interests or borrow the Process for that effect and return it But the Pursuer doth more safely when he takes back the Process from the first Party and gives it to be seen severally to the rest For otherwayes they will delay him when they come to the Dispute and will at least get liberty to see the Process in the Clerks hands till the next Calling that in the mean time they may borrow the Process from the Clerk upon their Receipt and see the same Processes were accustomed not only to be seen and called once every Session and if they were not marked by the Clerks so called there could be no Process till a Summons of Wakening was raised for they were not only said to be asleep in the mean time but also the Defender's Advocats were not obliged to answer unless they had seen the Process that same Session But since the Act of Regulation a Process being once seen is not to be seen again unless there be Alterations in the Summons or new Productions Yea when the Process hath not been called for a whole year and that thereupon there be a Citation upon a Wakening the Cause goes on as it stood in the Roll before and is only seen with the Wakening in the Clerks hands The Pursuer's Advocat when he gives out the Process to be seen writes upon the back thereof Given out by c. to c. to be seen and subscribes the same And after two or three dayes calls for the Process back He doth also ordinarly write an Inventary of the Process apart or upon the back of the Summons and the Defender`s Advocat by accepting of the Summons is presumed to have received the same the day mentioned upon the back of the Summons and to have received the Peeces of the Process mentioned in the Inventary because if these be not truely set down he may refuse to accept of the Process If then the Defender`s Advocat deliver back the same he must write upon the back that they are seen by him and subscribe his name Which if he refuse to do and to give back the Process the Pursuer by a Ticket may complain to the President or Ordinary upon the Bills who will call the Defender's Advocat and amerciat or fine him till he produce Or otherwise the Pursuer upon a Copy of the Summons may cause the Sub-clerk call the Defender's Advocats to reproduce the Process With Certification that if he do not his Copy will be holden as a principal and holden as proven whereupon the Defenders will be decerned Which Certification being admitted a Decreet for not Reproduction may be extracted which will have all Execution as any other Decreet in absence and albeit it be more easily suspended yet not ordinarly without Caution But for the Security of Parties that they may not be wronged by the Clerks all that passes every day is mentioned in the Minute Book which Book is read in the Outer-House every day after twelve a clock and nothing can be extracted till it be read in the Minute Book and twenty four Hours thereafter that in the mean time either Party may compear and produce or take up the Process and get the Decreet delet out of the Minute Book and oftimes at the very reading of the Book they compear and get it delet If the Pursuers after the Process is seen make any alteration therein by production of new Writs and altering or mending of the Summons the Defender must see of new again the Peeces of the Process or the Pursuer's Title where there is any required to be produced which is in most Causes and which instructs the Pursuer's Right as the Summons or Charge with the Executions Acts of Process and Writs produced for Probation Processes allowed to be seen in the Clerks hands being kept up beyond the time appointed upon Complaint from the Clerk they are ordained to be delivered the next day under a certain Penalty as ten or twenty Dallers And upon the second Complaint Warrant is given to debar
the principal Cause if it be given out when the Copy is first called The Charger's Advocate at the giving out of the Charge writeth on the back thereof the Dâ—y that it was given out and sets his name thereto and is not obliged to receive the Suspension unless the Suspender mark on the Process That he hath seen and returned the same but may take out his Protestation as if the Principal were not produced According to the Date of the Return of the Charge the Suspension is inrolled and when it comes to be discussâ—d the Cause being called the Charger produceth the Copy marked by the Clerk as aforesaid and thereuâ—pon craveth a Protestation from the Ordinary which he obtains if the Suspenderâ—s Advocate produce not Yet sometimes the Charger`s Advocate will hold the Copy for a Principal and the Suspender will repete his Reasons of Suspension which though they be not admittable upon a short Copy in strict form because all Reasons of Suspension both principal and eked ought to be set down in Writ and given to the Charger to see yet frequently the Charger will rather dispute the Cause than take a Protestation which is easily suspended again and therefore will answer to the Reasons as verbally repeted But if the Suspender compear and the Charger do not insist he may produce the principal Suspension and crave the Letters to be suspended ay and while the Charge be produced which puts him in tuto that no Protestation can be taken upon the Copy till the Charge be produced Yea if the Suspender extract and produce the Charge and refer his Reasons to the Lords they will advise the same and if they find the Reasons relevant and proven will suspend the Letters simpliciter In which case the Decreet of Suspension is as other Decreets in absence and may be reduced upon a Summons of Reduction wherein the Lords will reconsider the Reasons and hear the Parties debate thereupon and may recall what they formerly did albeit super eisdem deductis which they cannot do in Decreets upon compearance But when the Defender is absent the Lords do not so accurately consider the Cause seing there is a Remedy and likewise because albeit they find the Reasons relevant as before the Party may elide the same by relevant Answers and Duplys If the Charger compear and also the Suspender and the principal Suspension is produced then the Charger doth briefly repete his Charge or Decreet suspended and declares what he insists in And if there be any thing general he useth to give in a Condescendence in writ at the beginning to be seen with the Charge which therefore is called the special Charge And if the Charge have in it many Members he declares what Points he insists in primo loco and if he do not the Suspender may insist upon any Reason of Suspension he pleaseth against any of the Points The Suspender in repeting his Reason should condescend by the number what Reason it is and whether it be libelled or eked For Suspenders may add or eke to their libelled Reasons if they will So that if the Reason they repete be neither eked nor libelled in strict form it may be repelled or if the eked Reason hath not been at first produced and seen with the Suspension it ought not to be received Yet many times the Ordinary will indulge that favour and cause the Charger either answer it instantly or take it up till a Day to see which he may do without expunging of the Cause out of the Roll but may call the Cause again at the Day appointed And if the Charger hath seen the Reason may proceed In like manner Reasons of Suspension ought to be instantly verified by Writ unless they be referred to the Partie`s Oath in which case the Charger's Procurators to hasten the Process will take a Day to produce the Charger to give his Oath But if the Reason of Suspension be founded upon a Writ which is not the Suspenders own Writ as when Cautioners suspend upon Discharges granted to the principal Debitor the Suspender will get a Term to prove as he will when the Reasons of Suspension consist in facto and are to be proven by Witnesses The first point of Debate in Suspensions is upon the Relevancy and Verification of the Reasons The next point is upon the Competency of the Reasons For many Reasons are competent by way of Reduction that are not competent by way of Suspension because Suspension stops the Execution of a Decreet already obtained and therefore the Execution should not be delayed except upon Reasons relevant and a short Probation but the Execution ought to proceed And if the Decreet whereupon Execution pass'd be reduced all that hath been taken away by the Execution will be recovered So a Reason upon Minority and Laesion is not receivable by way of Suspension but by Reduction Neither a Reason upon Inhibition Interdiction Iniquity Nullity or upon any Clause irritant not being declared albeit it bear to take effect without Declarator except in few Cases If the Reason of Suspension be sustained then the Charger propones the Answer to the Reason which is so termed to difference it from Defenses proponed in ordinary Actions because the Reason of Suspension is a Defense in the principal Cause and the Answer is a Reply thereto The Answer being proponed is first debated as to the Relevancy and Competency thereof but it needs not be instantly verified because the Charger may delay himself Many things are not competent by way of Answer which are relevant as upon Interdictions Inhibitions Minority and most Nullities and Clauses irritant and Failzies which require Reduction But if the Suspender have a Reduction and will hold the Production thereof satisfied he may repete the Reasons by way of Answer if coincident with his Reasons of Suspension If the Answer be sustained the Suspender may propone his Reply which doth not consist in any Alledgence against the Relevancy or Competency of the Answer but in some distinct Writ Clause or Fact eliding the Answer in the same way as the Answer did elide the Reason and so the Charger insists in his Duply and the Suspender may insist in his Triply and the Charger in his Quadruply c. Albeit the Suspender be obliged to verifie his Reasons of Suspension instantly yet he needs not instruct his Reply because that ariseth upon the Charger's Answer and he will get a Term to instruct the same or his Quadruply Some Reasons of Suspension do not conclude to suspend the Letters simpliciter and so take away the Decreet suspended for ever but to suspend the same for a time and then the Decreet of Suspension bears The Lords suspend the Letters aâ— and while c. Otherwise when the Reasons conclude so and are sustained The Lords suspend the Letters simpliciter If in discussing the Suspension there be nothing admitted to be proven in the future then the Deâ—reet of Suspension follows which is the
common name both of Decreets in favour of Suspenders and of Decreets in favour of Chargers whereby the Lords find the Letters orderly proceeded either simply or ay and while such a thing be done And sometimes the Lords suspend the Letters for a part and find the Letters orderly proceeded for the rest If any Point be admitted to be proven either of the Reasons of Suspension Reply Duply c. whether it be in favour of on of the Parties only or of both when they have different Points to be proven then Litiscontestation is made and an Act must be extracted which is an Act of Litiscontestation But ordinarly in Suspensions there is a present Decreet In all Reductions there are several things different from ordinary Processes for thereby Decreets Acts or other Rights are craved to be reduced or rescinded either upon Nullities therein or upon Reasons in facto or other Rights eliding the same albeit of themselves they be not null So that whatsoever is competent as a reason of Suspension is much more competent as a Reason of Reduction albeit many things be not competent by Suspension which are competent by Reduction And therefore when that occurrs Suspenders use with the Suspension to raise a Reduction that when the Suspension comes to be discuss'd those things that are not competent by Suspension may yet be received in the Suspension because of the Reduction Especially if the Reduction be seen and the Pursuer hold the production satisfied by the Charge Then repeting his Reason of Suspension and Reduction as coincident he will get the same Terms in both But if he will not hold the production satisfied by the Charge then he must debate the Reason of Suspension alone and if they be not found competent and sufficiently instructed the Letters will be found orderly proceeded in the Suspension reserving the Reduction as accords And if the Reduction be seen and be probable to be soon ready and upon relevant Grounds then the Decreet upon the Suspension will be suspended to be extracted for a time that in the mean while the Suspender may insist in his Reduction which sometimes is prorogat upon Supplication as the Lords see cause And when the Decreet of Suspension is extracted if there be Reduction depending the Suspender doth oftimes obtain a second Suspension that he may conclude his Reduction but the giving or extracting the second Decreet of Suspension is seldom delayed upon a Reduction which was either not rised or not ready the time of discussing the first Suspension In Reductions the Will commanding the Defender to be cited is put in the first place and then the Writs called for to be reduced in the next and last the Reasons of Reduction which with the Writs called for are left blank ordinarly at the raising of the Reduction and filled up afterwards before it be given out to be seen containing such Reasons as the Pursuer knows relating in particâ—lar to the Writs called for and such other general Reasons as commonly may be alledged against any Writ as wanting Witnesses or the Designation of them or wanting the Designation of the Writer or being vitiat in the Date or other Substantials which are libelled mainly to compell the Defender to produce because he is obliged to produce no Writ but such against which there is a Reason libelled But after the Writs called for are produced the Pursuer useth to cut the Summons and to libel such Reasons as he sees thence emergent whereupon the Dispute follows But because Certifications upon Reductions alone do only conclude the Writs called for to be reduced ay and while they be produced which will be sufficient until the Decreet of Reduction be reduced and till in the Reduction the Writs reduced be produced for till that time no use can be made thereof against that Right whereupon they were reduced and because the Certification in Improbations is far more absolute and strong bearing That the Writs called for shall make no faith in Iudgement but shall be repute as false and fenzied because they were not produced therefore in the same Libel Reduction and Improbation are frequently joyned whereby all the Writs called for have a general Reason of Falshood libelled against them Which Reason of Falshood may not be eiked in the Reduction but the Improbation must be libelled upon a Bill pass'd with the concourse of His Majesties Advocat as in crimine falsi The calling upon the Copy of Reductions and obtaining Protestations by the Defender is alike as in other Process And when the Pursuer compears if the Defender be absent the Clerks calling the Summons of Reduction do admit Certification of course and if compearance be made the Reduction with the Titles Grounds and Instructions thereof are given out to the Defender's Advocat And if they be not returned in due time the Pursuer causeth call upon the large Copy to reproduce the Process against such a Day and then assigns another Day with Certification and then admits Certification Which may be extracted within twenty four Hours after it is read in the minute-Minute-Book unless the Process be reproduced And that Decreet is the strongest of any of that kind because Decreets of Certification in Reductions and Improbations require no Probation but are granted upon the contumacy of the Defender who refuseth to produce And therefore that Certification is intended to force them to produce since otherwise the Right will be reduced and improven and be holden as false and fenzied When Reductions are seen returned and inrolled at the calling thereof by the Ordinary the Pursuer`s Advocat doth shortly relate his Title and the Writs he calls for to be reduced and improven generally or particularly and then craves Certification contra non producta The Defender`s Advocat may also relate the Cause and doth then propone his Defenses against the Executions the Pursuers Title or upon the Interest of either Party or alledgeth That all Parties interessed are not called and urgeth the Pursuer particularly to condescend on the Writs called for and debates whether he hath interest by his Title produced to call for them either for reducing or improving of them Where there ariseth many important Debates which being discussâ—d the Defender takes a Term to produce and sometimes the Term is assigned Reserving all the Defenders Defenses against the Interest of the Party and the Alledgences against the Production which Reservation continues till all the Terms of Production be run And when Certification is granted contra non producta if the Defender produce any thing he will then be heard to dispute Why he ought to produce no further and that not only from the Interest of the Pursuer whereby he cannot call for any other Writ than what is produced but also upon the Ground That the Defender hath produced sufficiently to exclude all Rights produced by the Pursuer In which Case the Lords will sometimes hear the Parties debate their Rights even before the Production be closed