Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	court_n	king_n	plea_n	3,508	5	9.7258	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61250	Modus litigandi, or, Form of process, observed before the Lords of Council and Session in Scotland by Sir James Dalrymple of Stair, President of the Session.	Stair, James Dalrymple, Viscount of, 1619-1695.	1681 (1681)	Wing S5179; ESTC R13544	50,051	44

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 in●●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 Instance● 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 Prote●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

be called in the Reduction of his Right or in a Declarator of Property and Cognition of his Marches without calling of his Superior But this yeelds no Defense for principal Debitors or for Cautioners bound conjunctly and severally as Principals for one of them may be called withoue the rest The seventh Defense is the order of discussing whereby the Defender alledgeth No Process against him till such other Parties be discussed As Cautioners not being bound conjunctly and severally as full Debtors are not liable till the Principals be discuss'd And so Cautioners for Tutors or Executors are not lyable till the Tutors or Executors be discuss'd So Heirs-male till the Heirs of Line be discuss'd nor Heirs of Tailzie till the Executors Heirs of Line and Heirs-male be discuss`d The eighth Defense is That the Libel or some member thereof is not relevant For clearing whereof it is necessary distinctly to understand what the Relevancy is which is so frequent and important a Term in our Law Relevancy is a relevando to relieve or help and therefore a thing is said to be relevant when if it be true and proven it would relieve the Pursuer or Complainer and give him the Remedy which he infers and concludes in his Libel and craves to be done as due by Justice For every sufficient Libel contains an argument or ratiocination sometimes in form of a Syllogisme when the point of Law is fi●st deduced as the major Proposition and then the matter of Fact is related as the minor or Subsumption and thence the Conclusion is inferred as consequent in Justice applying the Law to the Fact subsumed and craving the Remedies of that Law to be applyed to this Fact for the help or remedy of the Pursuer in his Complaint And therefore in the Libel he is called Complai●er But more frequently Libels are framed as an Enthimeme wherein the matter of fact is deduced as the Antecedent and it is thence inferred that in Justice such remedy should be adhibited Where sometimes after the matter of fact is deduced and before the Conclusion or Remedy craved the Law is mentioned either generally That the Fact related as done or omited by the Defender is contrary to Law Equity Reason or Justice or specially contrary to such Points of Law Or otherwise it is subjoyned to the Conclusion That upon the matter of Fact libelled it ought to be declared or decerned as is libelled according to Law Equity or Justice or particularly according to such Points of Law So then the Relevancy of the Libel or Complaint is the Consequ●nce of the Conclusion of the Libel from the Premisses thereof Or it is the Iustice of the Libel or the Sufficiency and Goodness of the Plea And the Probation is the Verily or Truth of the Libel So that the Remedies of Law proceed upon Justice and Truth The effect is the same● in Suspensions and Reductions though the form be different For the Conclusion or Remedy of Law is first proposed and the Premisses are subjoyned as Reasons for adhibiting the Remedy proposed Every Reason being a several Syllogisme or Enthimeme inferring the proposed Remedy and in effect a several Libel If the Libel be instantly verified and require no further Probation as when the Law presumes it to be true or when it is instructed by Writ or when the Defender is craved to be holden as confess'd or there is any other Certification containing a presump●ive Probation as that if Writs be not produced it is presumed to be because they dare not abide Tryal but would be found false or null therefore if they be not produced they are declared to be holden as false or null in these Cases if the Libel be instructed there is nothing can be controverted but the Relevancy Inference or Justness of it And therefore the Defense That the Libel or such a Member of it is not relevant imports this That the Conclusion craved is not just or that there is no sufficient ground for it in Law or Equity And therefore the Pursuer must condescend upon what ground o● Law or Equity he foundeth unless it be clear and evident to the Judge In which Case without putting the Defender to answer he sustains the Libel that is he finds that if the Fact related be true the Remedy craved is just And if he find the Libel relevant and instantly verified he decerns either simply in all points according to the Libel or in part finding ●ome Members of the Conclusion just but others not just or qualificate when he finds the Conclusion just but not in the way that it is demanded and grants it as it ought to be demanded Which is ordinarly done in favourable Cases nor will the Decreet be quarrellable as ultra petita or disconform to the Libel But if the Case be unfavourable he may forbear to qualifie the Conclusions and assolzie a libello ut libellatur which will not exclude new Summons where the Conclusion is rightly qualified as neither will an Absolvitor in a Reduction exclude a Reduction in the same Cause upon new Reasons upon different points of Fact or differently qualified But it is not so in Suspensions where the Decreet suspended not having taken effect by Execution the Suspender remains in effect Defender and the Charger who obtained the Decreet is still Pursuer to get his Decreet put to execution And there●ore whatever Reasons were competent and omitted in the first Suspension are not receivable in any posterior Suspension But if the Libel be simply relevant the Judge doth simply assolzie If the Libel be not instantly verified the Pursuer craves no Decreet but a Term to prove And the Question will still remain Whether the Libel be relevant that is Whether if it were proven to be true it would also be just For frustra probatur quod probatum non relevat Relevancy comes to be debated not only as to Summons and Libels but as to Exceptions Replys Duplys Triplys or Quadruplys c. which will not be sustained or admitted to Probation if they be irrelevant and would not relieve or avail the Proponer It is to the same effect when the Dispute is Whether the Defense Reply c. be good or sufficient For the goodness or sufficiency thereof is the justness or Relevancy of it But the Term Relevancy is most formal and frequent with us and more than with any other Nation The Roman Law and the Nations that follow that Law do but seldom mention it and the English know it not But their Dispute to the same purpose is of the sufficiency or goodness of the Plea or Defense c. Yet we do never adhibite the term Relevancy but to a matter of Fact proven or to be proven whether in the Libel Exception Reply or Duply c. But when the Alledgence is only an Objection we do not debate whether the Objection be relevant As when Writs are adhibited to instruct a Libel ab initio the Ordinary will hear the Dispute upon