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
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
MODUS LITIGANDI OR FORM OF PROCESS OBSERVED BEFORE THE LORDS OF COUNCIL AND SESSION IN SCOTLAND By Sir IAMES DALRYMPLE of STAIR PRESIDENT of the SESSION EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1681. MODUS LITIGANDI OR FORM OF PROCESS Before the LORDS of COVNCIL and SESSION A PROCESS comprehends the Instruments and order of Procedour in the Administration of Justice By Instruments are meant Writs and Testimonies as Oaths of Parties Witnesses c. Processes are brought in before the Lords divers wayes some in the first Instance some in the second In the first Instance the most ordinary way was of old by ordinary Summons which were drawn up by the Writers to the Signet without any Bill or Warrant from the Lords because the Stile and nature of them was current and known in the same manner as the Brieves of the Chancery But where there was any thing singular or extraordinary it behoved to proceed by special Warrant of the Lords whether it were different from the common Stile in relation to the Diets or endurance of the Citation or in relation to the Table and Roll by which Summons were to be called or in relation to the mater it self And therefore a Bill was presented to the Lords and pass'd and the Summons thereupon bears Ex deliberatione dominorum concilii which the ordinary Summons bear not Now most part of Summons are raiâ—ed upon Bills Processes also come in upon naked Supplication without a Libel passing the Signet in some Causes especially if they concern Advocats Clerks Writers Agents and other Attendants of the House which the Lords call upon Complaint by the Macers summarly and thereupon grant Processe And now since the discussing of Causes by a Roll is established by Act of Parliament the Lords for dispatch of Complaints of smaller moment upon special consideration represented by Bill do grant Warrant to Macers or Messengers to cite Persons in â—dinbâ—rgh or the Suburbs upon 24. Houres to answer before the Ordinary upon the Bills who discusseth the same summarly without any signetted Libel and so without abiding the course of the Roll. They do also upon complaint of any Contempt as if Parties proceed to Execution where Stops of Execution are granted summarly give Warrant by a Deliverance on the Bill of Complaint to cite the Persons complained upou wheresoever they dwell which is summarly discuss'd by the Ordinary upon the Bills Processes do likewise come in by Letters of Horning without an antecedent â—earing of Parties especially where Horning is ordained to proceed summarly by Act of Parliament or ancient Custom So Letters are granted for the King`s Revenues and likewise for the Charges of Commissioners of Parliament for Reparation of Kirks and Kirk-yards and for Removing from Gleebes designed for Ministers c. These are called GENERAL LETTERS because they bear not warrant to charge any particular Person but generally all and sundry concern`d as Heretors Liâ—erenters Wadâ—etters Tenents and Possessors c. And therefore such Charges differ litle from other Summons and are easely suspended because the Party or Messenger has power to make the Application But they require no Diet or Continuatìon and yet the Party charged or Defender ere he can be heard must suspend and sind Caution All other general Letters of Horning are prohibited where either the thing charged for is not specially express'd or the Names of the Persons charg'd except as to benefic'd Persons to serve for an Intimation of their Provisions but not to denounce any Party Par. 1592. cap. 240. Yet oftimes general Letters in other Cases pass of couâ—se but thereupon Escheats fall not though Caption doth follow For preventing whereof the Lords by Act of Sederunt Iune 8.1665 did prohibite the Writers to draw or Clerks of the Bills to write upon any general Letters of Horning either as to Benefices or modified Stipends untill the Incumbent produâ—e a Deâ—reet conform in his own Person although he produce one in the Person of his Predecessor Ordinary Actions may pass without Bill or by Bill both passing the Signet The Sâ—iles and Tenors of ordinary Summons and of most part of priviledged Summons passing by Bill as now become fix'd and ordinary are commonly known and observ'd by the Writers to the Signet and are contained in their Stile-Books which they are obliged and every Session enjoyn`d punctually to observe And they will be censured by the Lords if they transgress not only in the Stile of Summons without Bill but also in presenting common Bills of course without special notice of the Lords upon trust of the Writers and Servants in the Bill-Chamber who write the Deliverance upon the back of the Bills The like if the Stile be altered in general Letters or other Letters of Horning Diligence and Executorials All these Warrants of the Lords contain a Command to Messengers or Sherisjs in that part to cite and charge the Parties And in ordinary Summons the Citation is to a Day which is left blank that the Obtainer thereof may make use of any Day he pleases within a year after the Summons are rais`d Most part of Summons formerly did abide Continuation that is the Defender being cited and the Day of compearance past the Clerk marked the Summons as being called and continued till such a Day albeit in reality they they were not called because the Defender was not obliged to answer till he was cited againâ— which was by Letters pass`d under the Signet making mention of the first Summons of the Citation and Continuation of the Summons and commanding Messengers to cite the Party to the second Diet which also was left blank that the Obtainer might use it any time within a year after their obtaining thereof Such Summons were not continued as were instantly verified by Writ or needed no other Probation than the Summons it self as being negative or presumed in Law to be true But if the Summons behoved to be proven by the Oath of the Defender or by Witnesses the same was then to be continued except in some few priviledged Causes as in Actions of recent Spulzie Ejection and others And though Summons upon Bills by the Deliverance of the Lords bare expresly to proceed without Continuation yet that passing of course was but periculo petentis and the Summons behoved to be continued The Act also of Continuation behoved to be extracted before Process could proceed But now by the Act of Par. 1672. cap. 6. Acts of Continuation and second Summons are discharged And it is ordained That in Cases where second Summons were before required there shall now be one Summons with two Diets in which the Executions to the first Diet may be given by any Person as being Sheriff in that part constitute by the Letters But after the Day to which the Party is fiâ—st cited the second Citation must be given to a new Diet by Messengers when any Point is reâ—err'd to the Defender's
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