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
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
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
the Writs produced and the Objections made against the same Wherein the terms are not That the Writs are not relevant but that they instruct not or that they are not to be respected for such reasons and the Pursuer endeavours to inforce the same and answer the Objections In all which it is improper to mention Relevancy The ninth Defense is upon the Competency Whether the Suit be competent hoc ordine For albeit the Libel be relevant yet it may not be competent Exceptions so properly called are not founded upon the Defects of the Pursuit but are founded upon some positive Right or Fact distinct therefrom exclusive thereof and that either for a time or for ever Those Exceptions which exclude the Defense but for a time are therefore called Dilators those which elide the Cause for ever are therefore called Peremptors quia perimunt seu destruunt causam And albeit Dilators may assolzie the Defender ab instantia aut lite yet never â— causa And therefore some Dilators are more properly termed peremptoriae instantiae To make both clear by example in the most frequent Pursuits as in Actions for Debts if the Defender alledgeth that the Pursuer cannot insist for payment of the Debt because the Debitor by his Promise or Writ is engaged not to seek the Sum for a time or hath renounced or discharged Action or Sentence if the time be not very long to come Sentence will be pronounced suspending execution till that time which qualifies the Sentence and is dilatory as to the execution But if there be an absolute Paction upon the Debitor's part de non petendo or that the Defender hath his Discharge or Renounciation of the Debt or if the Defender alledge Payment or Compensation these Excepâ—ions are peremptory which if proven willassolzie the Defender for ever And though commonly all Defenses whether they be Exceptions or Objections are called dilatory if they do not absolutely determine the Cause yet it is clear what difference is betwixt an Exception and Objection the Objection being only the alledging of a Defect and Nullity in the Pursuit and therefore are partes judicis which if he do accurately notice although there were no Defender he would not decern As if there were an Act or Sentence craved before the Day of compearance were come or if the Summons were not upon the Dayes requisit by the Law or if the Executions were defective in the Requisits ordained by Law or if the Libel were not relevant or any member thereof or were not competent in such a Process all which reasons are negative and require no further Probation But proper Defenses are positive and are not proper to the Judge to supply and are not founded upon deficiency of the Process but upon some positive Right or Fact competent to the Defender Dilators must be instantly veâ—ified and there can be no Term assigned for proving thereof Secondly they are not competent to be proponed aâ—ter proponing of Peremptoâ—s Thirdly all Dilators must be proponed together or at least at the second Calling that they may not be drawn in length As to the first that Dilators must be instantly verified the reason is because they do not determine the Cause and to run a course of Probation for instructing a Dilator were tedious and expensive and not worthy of the work Therefore Defenders are to prepare themselves and have in readiness the Writ or Witnesses to inctruct the Dilator which will be received without any Citation or Diligence but being instanâ—ly called by a Macer will be admitted For instance if a Tenent be pursued to remove and alledge all Parties interessed are not cited viz. his Master to whom he is Tenent by payment of Maill and Duty before warning this is a Dilator and it must be verified instanter that the Person he condescends upon was his Master before the warning which may be done either by production of his Master`s Discharges or by Witnesses if they be in readiness Yet in some Cases a Term may be granted to instruct a Dilator as if the Defender have a Supersedere of the Pursuer for a considerable time or a probable cause for which he hath not the Writ in his own hand if he make faith de calumnia he may get a short time cum onere expensarum Which is most fully performed without assigning a Term or Diet to instruct the Dilator but repelling it as not instructed yet superseâ—ing the extract of the Act or Decreet for some short time that if in the mean time he Deâ—ender produce the same it may be received If a Dilaâ—or be sustained the Defender may extract the Sentence thereupon which in effect is an Absolvitor from that Insâ—ance And if the Pursuer do not mend the Executions and Libel before it be extracted he will not be heard thereupon till new Citation As to the peremptory Exceptions this is a Rule that exceptio falsi est omnium ulâ—ima and after Improbation is proponed the Defender can return to no other Defense unless iâ— be emergent oâ— new come to his Knowledge But where Improbation is not by Exception but by way of Action joynt with Reasons of Reduction the Reasons of Reduction and Improbation may be insisted in together and Probation allowed in both joyntly or severally because they are but two Libâ—ls in one Process When a Peremptory is proponed the Dispute then runs first upon the Competâ—â—câ— â—hâ—reof and next upon the Relevancy both which are the Objections agaiâ—st thâ— Exception and are not Replys For as the Exception is upon some Right or Fact positively alledged eliding the Libel albeit defective in nothing so is the Reply to the Defense and the Duply to the Reply c. As to the Competency of Defenses the chief Objection is That such an Alledgence is not receivable by way of Exception without Reduction As if any person be pursued upon a Bond and alledge Minority and Laesion or alledge Interdiction or that the Bond was granted by his Predecessors in lecto aegritudinis these will be repelled as incompetent Much more if in any Pursuit upon a real Right it should be alledged to be a non habente potestatem So also nullitates facti upon Clauses of Failzie bearing that in such and such Cases such Rights should be null are incompetent by way of Exception even albeit the Clause bear that the same shall be null without Declarator for the Lords notwithstanding will not sustain the same without a preceeding Declarator If these Provisions be penal the Lords will also allow the Parties to purge the Failzie by performance at the Bar in the Declarator and therefore not sustain such Alledgences by Exception or by Suspension but by Reduction or Declarator especially in heritable Rights and matters of great moment Though in matters of small moment when the Parties are poor they will indulge that favour which is competent to them by the eminency of their Office whereby they are not altogether straitned by the
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
in the tenor of an Exhibition of Writs for inâ—tructing any Point of Right or Fact Incident Diligences were formerly most tedious expensive and wearisome to Parties For the user thereof might for proving that the Party cited had the Writs he called for make use of Witnesses and thereby had four Terms to cite the Witnesses And if thereby he obtained Decreet of Exhibition he had Terms against the Havers by Horning and Caption and several Terms also against Magistrats to put the Caption in Execution All which Defenders were ready to pretend necessary when they knew there was nothing to be found and did it only to procure delay But by the Act of Regulation these Delays and Pretences are much cut off For as the Subjects in every Society are oblieged to promove Justice by bearing witness upon their Oaths so are they oblieged to depone whether they have any Writs that may prove the thing in controversie and if they acknowledge the having thereof they ought to exhibite them ad modum probationis Therefore incident Diligences do now proceed by Horning against the alledged Havers charging them to appear and depone whether they have the Writs called for and to produce them in so far as they have them and if they obey not the Charge of Horning Letters of Caption are direct to incarcerat them till they depone and exhibite what they acknowledge There be three sorts of Oaths Oaths of Verity Oaths of Calumny and Oaths in litem Oaths of Verity do affirm or deny the truth of the point refered rhereto wherein if the Deponent deny he may either do it simply or qualificaâ—e so far as he knoweth or remembers in which case his Oath will not exclude other Probation But if his Oath be affirmative he may not so qualifie the same Oath of Calumny doth only require the Party to depone That he doth not calumniously alledge any Point knowing it not to be true but that he believes it to be likely And if by this Oath he do not so assert the Point offered thereto or be holden as confest for not deponing it is a sufficient Probation against him There is not so much consideration to be had in the Oath of Calumny of the Iustice of any Point which the Judge should determineâ— but of the Partie's opinion of the verity thereof For by our Custom Oaths of Calumny are not taken till the Lords sustain the Relevancy Nor are Puâ—suers put to depone de calumâ—ia upon the whole Libel before it be discussâ—d If the Party be present whose Oath is craved upon the Libel or Alledgance he must either depone or be holden as confest and if absent he may be cited by a Messenger with that Certification Which goeth on as a distinct Process Advocats are also put to depone de calumnia that they do not invent their Alledgances but were truely so informed When Witnesses are allowed to prove the Act bears those Points in which they are allowed to prove To be prâ—â—â—â— prâ—â—â— at â—â—rt For by our Law Witnesses are not adâ—itted to prove matters of importance where Writ â—â—ethâ— and may be interpoâ—â—d to secure againâ—t â—erjury and as a penalty upon the negligence of these who might have maâ—e â—fe of Write and did not As the Romanâ— did exclude naked Pactions without Stipulation so Witnesses cannot prove the lending or delivery of Mony above an hundred pouâ—â— Scots And they can in no case prove Promises Commands or Warrants Neither can Witnesses be taken to take away Writ except as to delivery of Victual The Terms of Probation being come and bygone either Party against whom any Point is to be proven causeth the Clerk call the Act of Litiscontestation and the Advocats therein mentioned and intimats to the parties to satisfie the Desire of the Act and thereafter the Act is called by the Ordinary before other Causes be discuss'd The Act having been first intimat by the Clerk and thereafter called by him before the Ordinary the Advocats therein mentioned are called to the Bar and then the Pursuer's Advocat craves That the Term may be circumduced and oft-times much time is spent in relating of the Cause and Tenor of the Act especially by the Defenders Advocats who many times have need to bring themselves in remembrance of the Cause by speaking of it for avoiding whereof The Sub-clerk who calls the Act should peruse it and be in readiness to relate to the Ordinary in a word what is the Point to be proven which may be done without so much as repeting the Process but only the kind of the Action and then whether the same or a Defense Reply or Duply was admitted reading the interloqutory words of the Act which expresses what was admitted to Probation The ordinary terms accustomed in such Cases are that the Advocats who cause call the Act craves That the Term may be circumduced or That certification may be granted or specially That the Party may be holden as confest if that be the certification Likewise the Pursuer causeth call the Act when any Defense Duply or Quadruply is admitted to the Defender's Probation In which Case he craves The Term to be circumduced against the Defender As also if the Pursuer be to prove the Point by the Defender's Oath then he causeth call the Act and craves The Defender to be holden as confest If the Point whether it be the Reply or Triply be to be proven by the Pursuer then the Defender calls the Act and craves The Term to be circumduced against the Pursuer Or if the Defender be to prove any thing by the Pursuer's Oath then he craves The Pursuer to be holden as confest But if there be Points to be proven hinc inde as if the Defence do not acknowledge the Libel then if the Pursuer call the Act albeit the Defender call not at the same time yet he will alledge That Certification cannot be admitted until the Pursuer prove his own Libel and prove the Quantities or Prices which will be either granted or at least no Decreet can be granted till the Pursuer's part be proven and whatever the Defender produceth medio tempore will be admitted but regularly Certification should not be admitted The same holds in other Points of the Process to be proven by the Defender when the Defenses do not acknowledge the Points to be proven by the Pursuer But if the Defense acknowledge not the Libel nor the Reply the Defense then if the Pursuer call and renounce Probation as to his Libel he may crave the Term to be circumduced for not proving the Defense though he prove not the Reply that being only necessary to be proven in case the Defense be proven As if the Defense be Compensation â— and the Reply be Recompensation or discharge of that Debt whereupon the Compensation is called if the Pursuer prove the Debt he may crave the Term to be circumduced against the Defender for not proving the Debt whereupon he craves Compensation
albeit the Pursuer prove not the Reply In this case also the Defender may crave the Term to be circumduced against the Pursuer for not proving of his Libel albeit the Defender prove not his Defense But if the Pursuer adduce Probation or use Diligence for proving of the Libel the Defender cannot crave the Term to be circumduced against the Pursuer for not proving his Reply till the Defender prove his own Defense The like holds in the Duply or in any other Point The Term may be circumduced and yet no Decreet pronounced As if the Pursuer have adduced probation of his Libel Quantities and Prices not acknowledged by the Defense and renounced Probations he may crave the Term to be circumduced against the Defender to the effect the Cause may be concluded and advised In Circumduction of the Term or granting of Certifications the Ordinary useth to do it conditionally That what shall be produced betwixt and such a time shall be received especially if the Defender's Advocat declare that the Writs called for are not at present in his power but that he expects the same the time of which Qualification is in the discretion of the Ordinary who will give longer time if any impediment or hinderance appear Item if the Point be to be proven by Oath of Party and at calling of the Act the Advocat for the Party who is to give his Oath produce Testificats of his Sickness or Infirmity or other necessary obstacle or impediment and therefore craves a further Term or Commission which will be granted if the Testimony be upon Conscience from known Persons especially Ministers and Physitians Especially if that obstacle was not known to the Partie's Advocat when Litiscontestation was made but emergent and new come to Knowledge And though it be not sustained yet if there be any probability therein the Term will be circumduced conditionally to such a Time that the Party holden as confest may compear and depone And these conditional Circumductions the Lords upon Supplication do oftimes prorogat as they see Cause In posterior Diligences there is only Warrant granted to cite such Witnesses as were in the former Diligence unless there be a Warrant for it by the Lords upon the emergency of the notice of further Witnesses or the Death or Removal of others before cited and regularly no more than twenty four Witnesses can be adduced for the same Points Witnesses will be received upon the very Day of compearance assigned for them and they are brought judicially to the Bar and the Parties being also called to the Bar their Oaths are taken by the Ordinary who may hear and discuss the Objections made against them or may refer the Objections till the afternoon to be received by those who receive and examine the Witnesses Who if any Debate arise upon any Objection will ordain the Witnesses to attend the next Day and in the mean time will advise with the Lords thereaneâ—t In some cases also Witnesses are sequestrat that neither party may have access to them that so they may be more free and their Testimonies without corruption Objections against Witnesses as all other Dilators must be instantly verified Witnesses not being obliged to attend till the verity of the Objection be proven Nor are two Litiscontestations admittable regularly in one Cause Therefore Reprobators have been sometimes protested for but the effect thereof hath been very rare Requisites of Witnesses are That they be famous equal and inconcerned in the â—arties or Cause Hence arise the Objections 1. That the Witnesses are infamous as being so cognosced and declared by the Sentence of a Judge competent as by the Counsel and Session and Justice General 2. Upon the same Point of Infamy Persons known to the Lords to be debauch'd or in no reputation albeit they be not so judicially declared will be excluded and such as are not worthy the Kings Vnlaw Upon which ground it is that Beggars are excluded 3. Witnesses are excluded upon their Interest in the Adducerâ— and that either by Consanguinity Affinity or Service By Consanguinity Cousin-germans or of a nearer Degree are excluded And where there is not penuria testium sometimes Witnesses adduced of a further Degree will be excluded as in penuria testium Degrees regularly prohibite will be admitted The Degrees of Affinity are not so clearly determined But unless there be penurie the same Degree is likewise to be observed in Affinity as is Consanguinity But there is no affinitas affinitatis and therefore a man will not be admitted in the Cause of his Wif`s Brother and Sister but he may be Witness in the Cause of his Wif`s Sister`s Husband because that is but affinitas affinitatis Much more in Cases more remote As Interest in the Adducer so Prejudice or Enmity with the other Party may exclude Witnesses who in that case are not presumed to be equal and impartial And likewise upon the Point of Interest not only domestick Servants but moveable Tenents who may be removed at the arbitriment of the Adducer having no standing Tack nor Infeftment are not ordinarly admitted but Vassalls and Tenents having a Tack are Witnesses are also excluded upon inequality if they have given partial Counsel in prejudice of the Party against whom they are adduced or have received or accepted a Promise of any benefit or good deed for bearing testimony other then the ordinary Expences allowed to Witnesses And therefore albeit these be not objected agaiâ—st the Party the Lords use to cause Witnesses purge themselves of partial Counsel which they explain to them not only of their partiality by good deed whereby they may be presumed to have promised and intended not to be exact in the truth of their testimony but also if they have stirred up the Party to the Plea and promised to bear Witness for him and advised him how to mannage it The Point of Interâ—st in the Cause excludes Witnesses not only if they may tine or win in the Cause as being sharers therein sed si â—oveant consimilem causam whereby they may be suspected to give their testimony so as may advantage the interest of the like Cause wherein they are concerned But in all Cases there is much in the arbitriment of the Lords wherein they ponder the Moment of the Cause the antiquity and capacity of Witnâ—sâ—es whereby sometimes VVitnesses who by their Circumstances appear to be neâ—essary VVitnessâ—s are admitted contrary to the ordinary Exceptions And albeit in civil Cases the Lords do not admit VVomen yet in some Cases wherein they are necessary VVitnesses they will be adduced even in matters of greatest Moment As if the Question be concerning the return of Tocher or the Enjoyment of a Joynture and if it be alledged That alâ—eit the Marriage was dissolved within year and day yet there was a living Child born and heard cry and weep in this case the Mid-wife and other VVomen who were present at the birth of the Child will be admitted VVitnesses as being
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