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
Sentence will be easily suspended or reduced unless supplied as aforesaid And therefore if the Defender appear not the Pursuer will call for the Libel and insert what is necessary to make it effectuall and make Litisconâ—estation and Probation accordingly When Litiscontestation is made parte comparente sometimes the whole Objections and Defenses of the Defender are repelled and the Summons is found relevant and admitted to the Pursuer's Probation Sometimes the Defender`s peremptory Exceptions one or more are found relevant and admitted to his Probation which when they do import the verity of the Libel the Pursuer is liberat from Probation thereof Otherwise the Defender propones his Defenses denying the Libel or denying the Quanâ—â—ties and Prices libelled In which case by the Act of Litisconteâ—tation the Pursuer is ordained to prove his Libel and the Defender his Exceptions For instance if the Pursuit be for Payment of a Debt if the Defender propone his Defense upon a general Discharge not relative to any particular Debt or if he do propone Compensation he doth not acknowledge the Truth of the Libel and so he may deny the same and if he prove either of his Defenses or the Pursuer fail in proving the Libel the Defender will be assolzied But if the Defender propone an Exception of Payment it doth acknowledge that the Debt was due and therefore the Pursuer needs not prove his Libel but the Defender is to prove his Defense wherein if he succumbe the Pursuer will prevail without further Probation In like manner in a Pursuit of Spuilzie if the Defender except upon lawful Poynding he doth acknowledge the Libel as to intromission with the particulars in his Exception but he may deny the rest or he may deny the Prices libelled which therefore the Pursuer must prove But if the Defender omit to protest That he acknowledges not the Quâ—ntities and Prices the Pursuer will not be put to the proving thereof but the Defense will be holden as affirming the Libel And if the Defender succumbe he will not be heard to quarrel the Prices or Quantities libelled for want of Probation thereof As the Exception doth sometimes acknowledge the Libel and sometimes not so doth the Reply sometimes acknowledge or not acknowledge the Exception as to the Quantities or Prices and the Proponer will yet be put to the proving thereof And the Duply is in the same case as to the Reply c. So that sometimes the Pursuer will have to prove his Libel and Reply and the Defender his Defense and Duply For instance in a Pursuit for Debt due by Bond if the Defender except upon Compensation and the Pursuer reply upon a Discharge of the Debt compensed on and the Defender alledge That he hath right to the Sum wherewith he would compense as Assigny and if any such Discharge was it was posterior to his Intimation there the Libel Exception Reply and Duply must all be proven And if the Pursuer succumbe in proving his Libel whatsoever be done in the rest the Defender is assolzied If the Pursuer prove the Libel and the Defender succumbe in proving his Exception albeit the Pursuer faill to prove the Reply he carries the Cause If the Pursuer prove the Libel and Reply and the Defender prove not both the Defense and Duply the Defender will be decerned In discussing of Processes before Litiscontestation the Ordinary hears the Advocats on both sides debate and if the Point be clear according to Law and Custom he decides But if it be dubious or new then he adviseth with the Lords If he decide the terms he useth are Sustains the Order or the Title or Libel or otherwise Sustains the Alledgences against the same And if the Libel be irrelevant or the Title insufficient he assolzies simpliciter or ut libellatur If he sustain the Libel and proceed to the Defense and find the same relevant the terms are Sustains the Defense or otherwise Repells the Defense And if he find the Reply relevant and presupposing the Defense then he repells the Defense in respect of the Reply And if the Defense did also acknowledge the Libel he assigns a Term to the Pursuer to prove the Reply and not the Libel Or otherwise he assigns a Term to prove the Libel and Reply Or if the Reply be elided by a Duply presupposing the truth of the Reply as the former Points did of the preceeding then he assigns only a Term to the Defender to prove the Defense and Duply and so forth of the rest And if he resolve to advise with the Lords his term is you shall have the Lords Answer which he will seldom refuse if the matter be doubtful especially if the Defender offer a Daller to be forefault as an Amande if his Alledgence be not sustained Before an Interlocutor be reported the Process is brought to the Ordinary who peruseth the same and prepares it for the Lords And either Party give their Informations to the Lords containing the deduction and favour of the Cause and the Dispute which they may inlarge by reasons in their Informations as much as they please but may alledge no matter of Fact by way of Defense or Reply but what was proponed at the Bar. The Ordinary doth the next Day or soon after relate the Cause and repete the Dispute to the Lords And if he find any matter of Fact in the Parties Informations which was not proponed at the Bar he either hears them again upon it or he reports and shows to the Lords that it was not proponed And if they find any thing weighty therein they will desire him to hear the Parties upon it either before Interlocutor or after as they see cause Upon report of the Dispute the Points that any of the Lords think material are stated and ordered and any of the Lords reason thereanent And if they be not unanimous the Points whereupon they differ go to the Vote And then the Ordinary causeth call the Parties in the Outer-house and reports the Interlocutor which is minuted by the principal Clerk and declares what the Lords sustain or repel And immediatly after ordains the Defender to insist in his further Defenses or the Pursuer in his Replys and so proceeds from Day to Day to new Interlocutors until the Cause be fully discuss'd either by Decreet or Protestation or Litiscontestation And if either Party have omitted any thing upon their application to him before the Sentence or Act be extracted while he sits without he will hear them And thereafter if by Bill they represent any new matter of moment the same of course is appointed to come to the Ordinary and he will hear them thereupon And if he refuse them the Lords upon hearing of the Bill if they find cause will ordain the Ordinary or some other to hear it Each Ordinary doth also order the extending of Acts whereof either Party gets a Scroll before they be extracted And if they differ the Ordinary determines
the same according to the Minuts and meaning of the Lords In all which hardly can any Party get hurt but by their own negligence or the fault of the Clerks who if they extract any thing unwarrantably the Lords will mend the same even after it is extracted In discussing of Processes it is ordinary for Parties not called to compear for their interest but they will not be heard till their Interest be produced and then they will be heard in the same manner as if they had been Parties in the Cause There ariseth oftimes upon this occasion the competition of many Rights which are mutually interchanged and every one of the Parties admitted for their interest must see the Productions of all the rest In which case the Lords do frequently ordain all Parties to produce such Writs as they will make use of in the Cause with Certification that they shall not be heard to produce any thereafter which nevertheless extends only to such Writs as they then have in their power And then the principal Cause proceeds and is either referred to some of the Lords to be heard in the afternoon or otherwise the Ordinary sees and compares the Productions of the Parties and at the calling of the Cause he declares what he finds evident and clear as to the Preference And then ordereth the Parties to dispute allowing the second Right to be first dispute with that which he finds preferable and which of them prevails the rest in order to compete therewith untill all be discussed and one only be preferred or otherwise some of them jointly or some of them primo loco and others secundo loco c. Competition of Rights doth also come in by Double Poinding and that either by way of Suspension or Action whereby the several Parties are cited to produce their Rights and to hear and see it found and declared who hath the best Right that thereby the Parties liable may be out of hazard The Action of Double Poinding proceeds on a simple Summons on six dayes The Suspension is like other Suspensions but that it suspends the Right of all Parties till it be discuss'd This is the ordinary way of discussing of Processes by premitting the Point of Iustiâ— or Relevancy and then admitting the Point of Verity to Probation according to what is found just and not till it be found just for frustra probatur quod probatum non relevat In the Probation the benefit or burthen thereof is ordinarly assigned to one Party without joint Probation Whereupon ariseth the frequent Debate Who shall be preferred in Probation especially where the Alledgences are contrary As if one offer to prove violently spuilzied and taken away by force the other Party alledgeth voluntarly delivered and taken away by consent the question will be Who shall be preferred in Probation wherein the common Rule is That where the Defense is contrary to the Libel he that is in libello is preferred But even there and in all Cases the most special and pregnant Probation is preferred As in Spuilzies the Pursuer libels violence the Defender offers to prove lawfully poinded which is contrary yet being to be proven by Writ viz. by the Executions of the Poinding the Defender is preferred Thereafter the Parties are ordained particularly to condescend on the Circumstances and sometimes on the Witnesses Names that the most special Condescendence and the most unsuspect â— Witnesses may be preferred But in several Cases the Lords premit the Probation to the Discussing of the Relevancy and therefore before Answer ordain Witnesses ex officio to be adduced And where they see it dubious who ought to be preferred in Probation they use before Answer to the Dispute to ordain Witnesses to be examined hinc inde and such Writs and Evidents to be adduced as either Party will make use of And then they advise the Relevancy and Probation together and must not admit new Probation or new Alledgences in Fact competent before the Act but the Act before Answer stands as an Act of Litiscontestation in all Points and hath the same Terms to prove with Litiscontestation In Acts of Litiscontestation not only the Points to be proven are determined but also the manner of Probation which is either by Presumption Writ Oath of Party or Witnesses Presumptions are not put to probation in the future but are cognoâ—ced in the very Act and instantly verified though from the Probation it self Presumption may arise And therefore the manner of Probation is ordinarly appropriat to Writ Witnesses and Oath of Party and that which is presumed is said to need no Probation Presumptions are of three sorts either juris de jure or juris or judicis Praesumptio juris de jure is that which the Law determineth and presumeth upon the Point of Right which is so strong that it is a full Proof and admits no contrary Probation Unto which is reduced fictio juris that which the Law for utilities sake presupposeth to be and holdeth to be true though it be not So the Heir is presumed to be one Person with his Predecessor and the Defunct's Possession is esteemed the Heir`s Possession whereby whatever was possessed by the Defunct if it was not effectually transmitted is repute as possest by the Heir though he exercise no possessory act either of body or mind thereanent Most of our Certifications are founded upon such Presumptions as a Writ is improven for not production upon this Presumption that the Defender keepeth it up because he knows it is forged and therefore it is declared to be forged Which Presumption doth not admit contrary Probation So a Partie`s being holden as confess`d is founded upon the Presumption that by his Oath he could not deny the truth of what is alledged So the using of false Writs proprio nomine without Protestation expressing the way how the Vsers came by them is a Presumption of their being accessory to the Forgery Praesumptio juris is when the Presumption is acknowledged in Law but admitteth contrary Probation So Dispositions of Moveables Tacks c. made to a Rebell`s Bairns Friends or Servants are presumed by Act of Parliament to be fraudulent and to the behoof of the Rebel yet so as the contrary may be proven if any equivalent Cause be instructed In like manner Dispositions of Lands c. made by Persons Bankrupt or insolvent are presumed by Act of Par. to be fraudulent and in prejudice of Creditors without an equivalent onerous cause And albeit in themselves they bear expresly an onerous cause either generally or particularly for Sums of Mony or Deeds done yet when granted in favour of conjunct and confident Persons they are presumed to be without a true onerous cause and the Rights themselves bearing the same are not trusted albeit the contrary may be proven by instructing the onerous cause for which they were granted Praesumptio judicis called also praesumptio hominis is that Presumption which is not expresly in Law but
the just Deduction or Consequence admitted by the Judge This Presumption doth more easily admit contrary Probation and therefore such Presumptions are said to transfer the onus probandi that is to say they prove sufficiently for the Adducer unless the contrary be proven in which case presumptio cedit veritati in comparison whereof it is said to be but veri similitudo verisimilis veritas or conjectura And yet it is not necessary that either of the two Alledgences of the Parties must be true but that which ought to be is presumed albeit it be not certain according to the Maxime of Law quod inesse debet inesse presumitur In all Summons and Acts as there is a Will or Command of the Judge so there ought to be a Certification certifying what the Judge will do if his Command be not obeyed as the sting in all Processes without which they would be long of coming to an Issue For if nothing could be done but the charging denouncing and incarceration of the Party if he were found until he gave Obedience or declaring him Fugitive or denouncing him Rebel or Outlaw for his Contumacy litle benefit would thence arise to the other Party and the contumacious Party might long stand out And therefore more expedite Certifications are invented of which we have as many as apposite and as effectual as any Nation whatsoever Of which we shall adduce the prime instances The first and most general Certification is That the Lords will proceed to do Justice Whereupon when Defenders appear not they do proceed to Litiscontestation and do admit Probation and give Sentence as if the Defender did appear The Romans had no such Certification and therefore unless the Defender were compearing willingly or by compulsion they could do nothing but in some Cases put the Pursuer in Possession Neither can the English give any Sentence against a Partie absent but if he compear not they do no more but give out an Outlawry against him declaring that since he will not obey Law he shall not have the benefit of Law in any Case As Judges in Criminal Causes in Scotland commonly do if the Defender compear not they declare them Fugitive which is Out-law whereby his Escheat falls But our Civil Certification is more equal and apposite seing thereby the Lords in contumacious Defenders absence do the same that they would if they were present The next general Certification is either in Summons or Acts against Parties cited to give their Oaths with express certification That if they compear not and depone they shall be holden as confess`d that is as if they compeared and confessed that which is alledged against them Which is a most usual Certification and concludes more Processes than all the other It is also very important and will be hardly rescinded and therefore it is not sustained unless it be particularly expressed and unless the Party be cited by a Messenger of Arms and be personally apprehended that so his contumacy may be palpable The third ordinary Certification is against Parties who have intented any Process to insist with Certification That if they insist not they shall never be heard thereafter Which is of great use for thereby Defenders put themselves to certainty and are not obliged still to attend the motion of the Pursuer who may readily wait his opportunity of the infancy or evil condition of the Defender`s Heir and insist against him when he is least able to defend himself and letting the Process sleep may so continue it were it never so long In opposition whereof either this Certification or a Declarator of Right may be intented by the Defender to determine the Cause whilst he finds himself in a capacity There is another Certification in the case when the Lords by hearing any Debate do before answer ordain the Writs by which either Party will prove what they have alledged to be produced with certification That they shall not be heard thereupon thereafter and that their Alledgence shall be holden as not proponed And more generally at the entry of several Causes especially in the Competition of many â—arties and many Rights the Lords ordain all the Parties to produce such Writs as they have in the Cause with certification That they shall not be heard thereafter But in regard the Terms of Production are not granted so frequently and so large as in other Cases the Lords do extend the Certification no further than as to such Writs as the Parties have in their hands the time of â—he Certification Whereupon they do sometimes ordain the Parties to depone and if not if any Party produce and alledge upon a Writ not produced before the Certification was admitted if the Certification be alledged against the same it will be rejected But if the Producer offer to make faith he had it not the time of the Certification it will be admitted Sometimes no particular Certification will be exprest but the Act bear With Certification c. And the effect thereof is that the Lords do admit thereupon such Certification as is just and ordinary in such Cases But if there be no ordinary Certification in such Cases the Act is ineffectual As also other Acts wherein through negligence no Certification is exprest unless the fulfilling the Desire of the Act concern the Pursuer In which case he will get no Process till he fulfil the same which is equivalent to Certification In stead of Certification the Law sometimes allows Protestation which differeth from Certification in this that the Certification which is exprest in the Summons or Act besides that which is not ordinary nor proper to be so insert is sometimes admitted by way of Protestation And albeit it be free for every Party to protest for what he pleaseth yet only a few Protestations use to be admitted such as Protestations at the instance of Defenders upon the short Copies of Suspensions or Summons wherein albeit there be no Certification That if the Pursuer compear not to insist the Defender shall be freed from the Instance yet the Defender`s Protestation as being just and ordinary is instantly admitted as effectually as if there had been a Certification in the Summons That if the Pursuer did not insist he should fall from that Instance Such is the Protestation lately introduced in favour of the Pursuer whereby upon the large Copy of the Summons if the Defender refuse to produce the Process the Pursuer protests That the Copy may be holden as a Principal and that the same may be holden as instructed and proven and Decreet pronounced Which Protestation the Lords admit in respect of the Contumacy of the Defender's Advocate who refuseth to produce the Pursuer`s Process Such also is the Protestation of the Pursuer after Probation at the Conclusion of the Cause whereby when the Defender has produced his Writs or Witnesses conform to the Act of Litiscontestation he protests That he may be admitted to produce no more and that the Cause may
be holden as concluded which Protestation the Ordinary admitteth whereby the Cause is concluded and neither Party can use further Probation regularly So the Lords will advise whether the points whereupon Litiscontestation was made be proven or not proven In other Cases either Party may protest what they please but their Protestation receives no present Answer The greatest use it hath is that it be not presumed those who protest do acquiesce by their silence nam qui silet consentire videtur And therefore when one of the Parties makes any such Protestation the other Party useth ordinarly to protest in the contrary and there is no Answer given to either of their Protestations but they use to be insert unless they be clearly contrary to Law in which case they will not be suffered to be inâ—â—rt As if the Parties should protest at the Sentence of the Lords for remede of Law or should protest That the Lords should not proceed these being against their supreme Iurisdiction will not be insert but other Protestations will As if any Reason of Suspension be repelled as incompetent in a Suspension the Suspender may protest The same may be without prejudice to him to use Reduction Or if any Defense be repelled as incompetent in the first Instance the Defenders may protest That it be without prejudice to them to make use thereof in the second Instanceâ— by Suspension or Reduction Or if any Right be reduced or redeemed the Defenders may protest That it be without prejudice to them of any other Right whereby they may brook the Lands or thing in controversy Which is especially done when the Lords do not express in the Sentence such Reservations as oftimes they do and though they be omitted they are implyed in the nature of the thing But least the silence of the Parties might import they pretend no further they may for their further security protest Protestations are only competent where Certifications Defenses Replys or Duply's are not competent And therefore Protestations upon Copies as aforesaid and at the Conclusion of the Cause and upon incompetency of Defenses Replys Duplys c. are only competent For if these other were competent Proteâ—tations were neither proper nor effectual As if when the Defender`s Defenses or some of his Reasons of Suspension are discuss'd if Protestation were made That the Defender might be heard upon other Defenses or upon the Reasons not discussed this Protestation albeit insert would be of no effect because contrary to Law which obliges all Parties to propone all the Defenses and Reasons that they have before Litiscontestation And therefore in the second Instance new ones are repelled as competent and omited So that to protest for liberty to omit or add in a posterior Instance is against Law and those Alledgences being competent in the first Instance ought to be proponed not protested for Processes come in before the Lords in the second Instance by Advocation or Suspension and both in the first and second Instance by Reduction For Reductions of Decreets or Acts are in the second Instance but Reductions of Rights whereupon no Decreet or Sentence hath followed are in the first instance Of these therefore in order The original of Advocations is this Of old Parties were allowed to appeal from inferior to superior Courts when they conceived themselves to have gotten wrong which was called Falsing of Dooms And so there lay an Appeal from Barons to Sheriffs and from Sheriffs to the Kings ordinary Council in whose place the Colledge of Iustice succeeded and the Senators of which are therefore designed Lords of Council and Session from whom there is no Appeal to King or Parliament By these Appeals Processes did stop till the Appeals were determined or deserted And the Superior Court to which the Appeal was made did first determine the Appeal whether bene vel malè appellatum The Cause was remitted to the Judge appeall'd from unless the Appeal were sustained in which case the Judge appeall'd unto proceeded in the principal Cause as is yet accustomed in most Nations But Appeals have been of a long time excluded in this Kingdom in any Case and a far better Remedy introduced in their place by Advocation For by Appeals Processes were stopt at the option and fancy of private Parties which could not but increase animosity and clamour Advocations proceed upon Supplication to the Lords containing the special Reasons for which the inferior Judge is incompetent unequal or unjust and concluding that therefore the Cause ought to be advocat or called from him and determined by the Lords or other competent and unsuspect Judges Which Supplications do not pass of course but are specially advised by the Ordinary upon the Bills who considers not only the Relevancy of the Reasons of Advocation but the Instructions thereof For seing the Party complaining hath another Remedy by Suspension and Reduction Advocation is not to be granted unless the Reasons be not only relevant but instructed In which the Testificates of known Persons of Reputation will be sufficient to obtain Advocation though not to determine the Cause As if the Defender alledge That he is not within the Jurisdiction or that the Judge is of such relation to the other Party or that there is open enimity betwixt them and in all Cases of difficulty the Ordinary adviseth with the Lords And if any Party appear he will get a sight of the Bill of Advocation and be heard thereupon and oftimes the Lords will warrant the Reasons of Advocation to be discuss`d upon the Bill and sometimes the principal Cause The Lords do sometimes prohibite any Advocation to pass but in presentia during the sitting of the Session or by three Lords met together in Vacance especially near the close of the Session that Justice be not delayed or the inferior Judge discouraged or prejudged The same Reasons that were of old for Appeals are now for Advocations As first That the Cause belongs not to the inferior Court`s Jurisdiction as when Causes are advocat from Commissaries as not being consistorial or when any inferior Court is proceeding to determine Declarators of Property or other important Rights or the Competitions or Nullities thereof Secondly When the Complainer is not within that Judge's Iurisdiction but hath his Domicile and Residence elsewhere Thirdly When the Complainer is exempted from that Judge`s Jurisdiction or hath the priviledge of Advocation by Office as the members of the Colledge of Justice have by Statute because of their attendence on the Session And sometimes upon gross Inequality and Injustice Exemptions are granted to the Persons injured not to be conveenable before that Judge Fourthly If the Judge be nearly related to the other Party whereof the Degree is not determined but in arbitrio judicis It is certain if he be Father or Brother to the Party he may be declined and if he repell the Declinator Advocation will be granted both upon Incompetency and Iniquity For by Act of Parliament the Lords are
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-Book will stop the Protestation The which order is also used for getting back of Advocations and seing
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
albeit it be more ordinary and regular that the Defender should produce what he can upon his hazard and Certification should be granted against the rest So that all the Writs whereby the Defender can defend himself being in the field the Dispute may be clear and intire which otherwise may be drawn out into a very long endurance Seing the Defender if it be found that he hath not produced sufficiently may still drop in one single Writ and renew the Debate thereupon and alledge he hath now produced sufficiently and make as many Disputes as he hath single Writs contrary to the intent of this kind of Process which is to force Defenders to produce all they have before they begin to Dispute But the Defender will not be heard after the first additional Production before Certification but if what he then produceth doth unquestionably elide the Pursuers Production he will be assolzied But if the matter remain any wayes dubiousâ— the Lords will rather observe the ordinary Form by concluding the Production first and then falling upon the Reasons of Reduction Before the Act of REGULATION there were two Terms allowed in Reductions and four in Improbations for production of the Writs called for After the first Term of Production was come and the Act extracted the Pursuer's Advocats caused the Clerk call thereupon to satisfie the desire of the Act and he upon calling it assigned a Day for that purpose and after that called the second time and assigned some Diets more with Certification But he could go no further till the Act was called by the Ordinary who assigned a second Term whereupon a second Act was extracted The Ordinary upon calling the second Act in the same manner as the first was accustomed to assign a third Term which being come and a third Act extracted and called as aforesaid if the matter were of consequence and concerned the Right of many Lands and that the Defender would take a fourth Term to close the Production of his own consent the Ordinary did give him it otherwise he would grant Certification contra non producta conditionally That what the Defender produced betwixt and such a day should be received Which favour was only granted least the Parties and Advocats should be surprised But since the Act of Regulation there are only two Terms to produce in Improbations and one in Reductions which must be assigned by the Ordinary Reductions unless when they are coincident with Suspensions are to be discuss'd as to the Production in the Outer-House but because of their importance they are priviledged only to be discuss`d in the Inner-House as to the Reasons of Reduction unless the Lords upon Supplication grant Warrant to the Ordinary to hear and discuss the same And therefore when the Production is closed and the Certification concluded either by the Pursers holding the Production satisfied with what is produced or by extracting the Certification contra non producta the Cause is again called but the Defender may propone his Defenses against the Production which were reserved in initio litis before Certification be extracted or if he insist not therein when the Pursuer repetes his Reasons of Reduction the Defender will refer the same to the Lords And unless there be a Warrant to hear the Cause extra the Ordinary will only make a Great Avisandum to both Parties to be ready to dispute the Reasons when the Lords call and in the mean time ordain the Defender to see his own Production in the Clerks hands as he will be served But if there be a Warrant to hear the Cause he will give the Defender some time to revise his own Production in the Clerks hands and be ready at the next Calling This is called a Great Avisandum in opposition to the ordinary Avisandum whereby the Ordinary upon any dubious Point returns â—his Answer to the Advocats That he will give the Lords Answer that he will advise with the Lords The main Defense competent in Reduction besides those which are common to all other Actions upon the Executions and Order are first upon the Pursuers Title and Production That it cannot give him any interest to reduce or improve any of the Writs called for And if his interest be sustained then the Defense runs upon registrat Writs If they be registrat in the Books of Council and Session â—he Defender alledgeth No Certification because he condescends upon the time of the Registration whereby the Pursuer is obliged to search the Register and to insist against the Clerks to produce the principal Writs râ—gistrat But if they be registrat in inferior Courts Certification will be granted unless the Clerk of the Court be called But if he be called his not compearing or not producing is upon the hazard of the Defender and the condescending on the Date of the Registration will not be sufficient in that Case but the Defender upon his own peril must search for the principal and produce them But if the Writs alledged registrat in the Books of Session be not found therein according to the Condescendence Certification will be admitted against the same There is also an ordinary Defense against the Production of Apprisings That the Charter and Seasin following thereupon are produced and that before the year 1624. Apprisings were left at the Signet as Warrants thereof so that no Certification can be granted against such Neither will Certification be granted against the Executions of Warnings or other Executions of Summons which are small inconsiderable Papers easely lost if Reduction or Improbation be intented long after obtaining of Decreets But the Registration of Seasins will not stop Certifications against them because the principal Seasin is not left at the Register The like holds in Reversions Assignations and Fikes theâ—eto and in Writs registrat during the Vsurpation when the principals were given back to those that registrat them But the chief Debate anent Production is about the general Clause whereby it is craved that the Defender may produce all Writs and Evidents made and granted by the Pursuer`s Predecessors and Authors of and concerning the Lands and Rights in question As to which it is alledges No Certification against Writs made by the Pursuer and his Authors unless his Right and Progress from these Authors be produced which is sustained and the Certiâ—ication so qualified Albeit it be sometimâ—s debated that the Pursuer being Infeft and in Possession of the Lands especially if he can alledge That he hath produced a Progress of fourty yâ—ars time which by the Act of Prescription 1617. if clad with Possession uninterrupted during that time maketh an absolute Right against all deadly it seems to give interest to all for and reduce the opposit Rights made by whomsoever whether the Pursuer show that he hath Right from the Authors thereof or not especially since the Act of Parliament 1617. It useth also to be alledged No Certifiâ—ation against Writs made to the Defenders and their Authors unlefs these Authors
Advocats from coming within the Barrs and to incarcerat Agents and Servants till the Process be reproduced and the Fine payed Processes being thus seen and ready for Dispute the same are inrolled according to the Dates of the Return marked upon the backs thereof he who is first ready being first to be discuss'd without preference of the Parties except the Kings Causes which after fight may be called without inrolling at any time upon 14. dayes Intimation to the Defender's Advocats wherein Donatars Processes are not comprehended Which Rolls being affixed on the Walls of the Outer House Parties and Advocats may inform themselves to be in readiness to dispute without surprisal or tergiversation Ordinary Actions after they are seen returned and inrolled are called by the Roll. If the Pursuer compear not to insist the Defender may crave Protestation upon his Copy But ordinarly the Pursuer compears and relates the Cause shortly if it be an ordinary Summons the tenor and nature whereof is fixed and known which therefore he needs not relate but only mention the Summons and crave Decreet if there needs no further Probation and if there do he then craves a Day to prove But if the Cause be upon a libelled Summons not having a particular known Stile the Pursuer doth more fully relate not only the tenor of his Summons but the merits of his Cause to inforce the justness and equity of the Cause in particular unless the Lords upon hearing the relation of the Summons stop him till it appear whether the Defender controvert the Relevancy thereof yea or not For it is an improfitable spending of time for the Pursuer to inforce the Relevancy of the Summons if the Defender controvert not the same In the next place the Defender if he resolve to dip upon the merits of the Cause or to adhere rigorously to exact form in the order then he relates the merits of the Cause and odiousnesse of the Pursuit and thereupon proceeds to his Defenses Defenses do not only comprehend Exceptions properly so called but all Objections against the Relevancy of the Summons Order and Interest And therefore the Defender propones his Defenses against the Order of the Process and first That the Day of compearance is not yet past And because the Day of compearance in the Summons and Letters by negligence is left blank the Defender uses to score the same or to fill up a wrong Day and to object thereupon But if the Day of compearance be mentioned in the Execution it will be sufficient albeit the Blank be scored and if it be wrong filled up the Ordinary will sometimes cause the Clerk immediatly mend it and so proceed And at other times doth as he seeth the Cause favourable or not The second Defense is upon the Dayes of Citation wherein the common Rule is that against Persons without the Kingdom Citation should proceed at the â—iercat Cross of Edinburgh and Peer and Shoar of Leith upon threescore Dayeâ— for the first Summons and fifteen Dayes for the second and for Persons within the Kingdom upon twenty one Dayes for the first and six for the second From this Rule are excepted Summons upon recent Spuilzie Ejection Intrusion or Succeeding in the Vice of Persons against whom Decreet of Removing is pronounced which are priviledged by Statute to proceed upon a Citation of fifteen dayes And by Custom Removings Causes alimentary Exhibitions Summons for making arrested Goods or Sums furthcoming Transferrings Wakenings Poindings of the Ground special Declarators Suspensions Prevento`s and Transumpts are commonly priviledged by the Lords Deliverance upon six Dayes And the second Citation when it is needful is always upon six dayes except against the Inhabitants of Edinburgh and the contiguous Suburbs thereof where the second Citation may be upon twenty four Hours which is declared by Act of Sederunt Iune 21. 1672. concerning priviledged Summons And the Writers to the Signet are prohibited to insert any other Priviledge The third Defense is That the Summons hath not two Citations conform to the Act of Parliament 1672. For clearing whereof it is to be considered that the reason of double citation is that the Defender may have more Citations before any Process be sustained against him not only to give him competent time to propone his Defenses but to ascertain him of the Citation which is some times clandestinely done but not so easily when there are reiterat Citations Some times Causes are priviledged to proceed upon one Citation by Law and Custom and sometimes by the Lords Deliverance The Law allows no Continuaâ—ion of recent Spuilzies Râ—movings and Actions accessory to the Lords Decreets as special Declaraâ—ors unless the Cause be of the greatest importance as Reductions Daclarators of Property and Declarators of expyring of Revâ—rsions For though â—hese require no further Probation either by Writ or Oath of Party yet because of their importance they must be continued And so must all Summons which are to be proven by the Defender's Oath of Veâ—ity or by Witnesses The fourth Defense is upon the tenor of the Executions As first if the Pursuer crave the Defender to be holden as confess`d then the Deâ—ensâ— is That he was not personally apprehended by a Messenger at Arms or That the Execution bears not that a Copy was delivered but if it bear a Copy delivered it will be sufficient albeit it bear not personally apprehended because it doth import it Secondly if the Defender was not cited personally but at his Dwelling-House the Execution will be null if it bear not That the Executer gave six Knocks at the most patent Door or Entry of the Defender's House designing the same and that he either delivered a Copy to the Wife â—â—irns or Servants or that he affixed a Copy upon the most patent Door or Gate It must also contain two Wiâ—nesses at least and it musâ— be stamped If any of thâ—se be omitted the Execution will not be sustained But the Pursuer may take up his Summons and mend the Executions abiding by the verity thereof and it must be seen again by the Defender The fiâ—th Defense useth to be upon the Pursuer`s Title whereby the Defender alledgeth No Process because the Pursuer produced no sufficient Title in initio liâ—is As if an Heir pursue without production of his Retour an Executor without a Câ—nfirmation or Licence an Assigny without an Assignation c. And almost in every Process that does not meerly consist in facto a Title in Writ must be produced in initio litis whereupon there ariseth much debate and very divers and different what Writs must be produced as the Title in initio litis which were too tedious here to relate The sixth Defense is upon the Interest of the Defenders not citâ—d whereby the Defender alledgeth That all Parties having Interâ—st are not called As iâ— a Pupil were called without his Tutor's being called at least in general at the Mercat Cross where the Pupil dwells or if a Vassal
his Action for that other Debt as accords Yet if it be dubious whether the Quality be competent or not the Lords will sometimes find it relevant as an Exception and assigne a Term for proving thereof or will decern and preserve that Alledgence contra executionem by way of Suspension At the advising of the Cause many times new Defenses and Alledgences are proponed which are received if instantly verified but not otherwise though emergent or new come to the Proponerâ—s knowledge unless he have raised Reduction of the Act of Litiscontestation thereupon or upon Nullities as if it hath been extracted contrary to the Minutes or meaning of the Lords But such Alledgences emergent or new come to knowledge may be reserved by way of Suspension or Reduction for thereby the other Party gets Decreet and may use Inhibition or other real Execution thereupon and get Caution before he be put to dispute these Points VVhen the Lords proceed to advise the Cause they either find the Points referred to probation proven or not proven Or otherwise they find thè same proven simpliciter or they find the same sufficiently proven ad victoriam caâ—sae that albeit all that was offered to be proven be not fully proven yet that as much is proven as alone would have been relevant If the Lords at the advising of the Cause find some Points not clear they will ordain such further Probation to be adduced by either or both Parties as they see fit If they find semplenam probationem they will ex officio take the Oath of either Party for their further evidence of the Truth And after this will proceed â—ill they advise the Cause de novo After all that the Lords â—ind necessary for a finall Sentence is done and they have advised the Cause they pronounce Decreet condâ—â—natory or absolvatory according as they find proven or not proven by the Probation Against which till it be extracted either Party by Snpplication may represent what they desire which the Lords will take in consideration and the Supplication aud Interlocutor thereupon will be insert in the Sentence The Decreets of the Lords being â—he Supream ordinary Judicatory in all civill Causes is unquarrellable upon point of Iniquity and therefore nothing that was proponed and repelled will be admitted in the second Instance super eâ—sdam deductis Whereby it is not meant that those Sentences are not quarrellable unless there be new considerations or reasons in jure alledged but that unless there be new reasons and new matter in facto Neither is that receivable in the second Instance which was competent in the first Instance but what is emergent and was not competent the time of the Litiscontestation The Lords are not so ready to reduce or suspend their Decreets upon Points and Reasons not emergent but it being alledged that either the matter of Fact is new come to knowledge or at least the Writs or Evidents for proving thereof it being hard to instruct what was or now is in the knowledge of the Partie the common Rule is Praetextu novâ—rum instrumentorum non retractantur sententiae Yet the Lords will sometimes when they see it is without all suspition of fraud or negligence admit what is new come to the Parties knowledge though not emergent Neither will the Lords recall Decreets upon Certification or Circumduction of the Term especially Certifications in Improbâ—tions neither any other but upon singular Reasons impeding the Party to keep the Term or otherwise upon emergent Writs instructing that wherein the Party succumbed or new come to knowledge without any suspition of fraud or the Partie 's designing to delay This is the ordinary Form of Process before the Lords of Council and Session then which there can be nothing more rational more regular every Form being the product of long experience from clear reason and necessity For the Lords are still supplying and perfiting as they see cause and whatsoever seems convenient at first if it prove afterward inconvenient is laid aside So that what is retained is that which hath for a long course been found rational and convenient But besides the ordinary Form many things are incident in Processes which are extraordinary and fall not under the ordinary points of Process at least in the ordinary way which therefore are offered to the Lords by Supplication and proposed in the time of the Dispute verbo not comprehending any Defense Reply or Duply Such as the Sequestration of Goods in question or the Sequestration of Mails and Duties of Lands or naming Factors for unlifting the same medio tempore the taking of the Oath of Parties or Witnesses to remain in retentis before the ordinary time if they be sick or going out of the Country or very old yea when persons are near the point of Death the Lords will ordain them to be examined upon Supplication although the Process be not so much as called Such are also the Production of Writs or Exhibition of things in question the Sequestraâ—ion oâ— Râ—-exâ—mination of Witnesses and many such Desires as neither came within the compâ—ss of Reply or Duply In like manner Points emergent or new come to knowledge are represented by a Bill at any time during the Dependence and are then admitted And also whatsoever hath been forgotten the Lords will receive before the Acâ—s or Sentences be extracted and before these are extracted they will rectifie the same upon Supplication if they have been extracted otherwise then according to the Minuts of Process and meaning of the Lords especially when the Complainers Advocat hath not seen the Scroll before extracting or his Objections thereanent have not been considered But nothing should come in by Bill which is an extraordinary Remedy where an ordinary Remedy is competent and therefore whilst a Cause is in discussing Parties are ordained to make their address to the Ordinary and ought not to trouble the Lords with Bills But if the Ordinary`s time be past and the Act or Sentence not extracted if they have neglâ—cted any Point they may represent it to the Lords by â—ill which the Lords of course will refer to the Ordinary who heard the Cause who comparing the Bill with the Process if he find any thing new therein will hear the Parties thereupon But if the Supplicant rest not satisfied bâ—t urge that he may have the Lords Answer upon the Bill the Ordinary upon an Amâ—undae will not râ—â—use it Reprobators also may be used during the Dependence of Process for rejecting of Wiâ—nâ—sâ—es or their Tesâ—imonies For seeing no Exception against the hability of Witnesses is receivable unless it be instantly verified when they are examined Parties may raise Summons of Reprobator even before the Witnesses are examined when they suspect such Witnâ—sses as are cited against him to the effect that thereupon they may cite VVitnesses to prove their grounds of Reprobator at the Term assigned for the VVitnesses to appear Or they may protest for Reprobators when the VVitnesses are examined and