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
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
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
Sentence will be easily suspended or reduced unless supplied as aforesaid And therefore if the Defender appear not the Pursuer will call for the Libel and insert what is necessary to make it effectuall and make Litisconâ—estation and Probation accordingly When Litiscontestation is made parte comparente sometimes the whole Objections and Defenses of the Defender are repelled and the Summons is found relevant and admitted to the Pursuer's Probation Sometimes the Defender`s peremptory Exceptions one or more are found relevant and admitted to his Probation which when they do import the verity of the Libel the Pursuer is liberat from Probation thereof Otherwise the Defender propones his Defenses denying the Libel or denying the Quanâ—â—ties and Prices libelled In which case by the Act of Litisconteâ—tation the Pursuer is ordained to prove his Libel and the Defender his Exceptions For instance if the Pursuit be for Payment of a Debt if the Defender propone his Defense upon a general Discharge not relative to any particular Debt or if he do propone Compensation he doth not acknowledge the Truth of the Libel and so he may deny the same and if he prove either of his Defenses or the Pursuer fail in proving the Libel the Defender will be assolzied But if the Defender propone an Exception of Payment it doth acknowledge that the Debt was due and therefore the Pursuer needs not prove his Libel but the Defender is to prove his Defense wherein if he succumbe the Pursuer will prevail without further Probation In like manner in a Pursuit of Spuilzie if the Defender except upon lawful Poynding he doth acknowledge the Libel as to intromission with the particulars in his Exception but he may deny the rest or he may deny the Prices libelled which therefore the Pursuer must prove But if the Defender omit to protest That he acknowledges not the Quâ—ntities and Prices the Pursuer will not be put to the proving thereof but the Defense will be holden as affirming the Libel And if the Defender succumbe he will not be heard to quarrel the Prices or Quantities libelled for want of Probation thereof As the Exception doth sometimes acknowledge the Libel and sometimes not so doth the Reply sometimes acknowledge or not acknowledge the Exception as to the Quantities or Prices and the Proponer will yet be put to the proving thereof And the Duply is in the same case as to the Reply c. So that sometimes the Pursuer will have to prove his Libel and Reply and the Defender his Defense and Duply For instance in a Pursuit for Debt due by Bond if the Defender except upon Compensation and the Pursuer reply upon a Discharge of the Debt compensed on and the Defender alledge That he hath right to the Sum wherewith he would compense as Assigny and if any such Discharge was it was posterior to his Intimation there the Libel Exception Reply and Duply must all be proven And if the Pursuer succumbe in proving his Libel whatsoever be done in the rest the Defender is assolzied If the Pursuer prove the Libel and the Defender succumbe in proving his Exception albeit the Pursuer faill to prove the Reply he carries the Cause If the Pursuer prove the Libel and Reply and the Defender prove not both the Defense and Duply the Defender will be decerned In discussing of Processes before Litiscontestation the Ordinary hears the Advocats on both sides debate and if the Point be clear according to Law and Custom he decides But if it be dubious or new then he adviseth with the Lords If he decide the terms he useth are Sustains the Order or the Title or Libel or otherwise Sustains the Alledgences against the same And if the Libel be irrelevant or the Title insufficient he assolzies simpliciter or ut libellatur If he sustain the Libel and proceed to the Defense and find the same relevant the terms are Sustains the Defense or otherwise Repells the Defense And if he find the Reply relevant and presupposing the Defense then he repells the Defense in respect of the Reply And if the Defense did also acknowledge the Libel he assigns a Term to the Pursuer to prove the Reply and not the Libel Or otherwise he assigns a Term to prove the Libel and Reply Or if the Reply be elided by a Duply presupposing the truth of the Reply as the former Points did of the preceeding then he assigns only a Term to the Defender to prove the Defense and Duply and so forth of the rest And if he resolve to advise with the Lords his term is you shall have the Lords Answer which he will seldom refuse if the matter be doubtful especially if the Defender offer a Daller to be forefault as an Amande if his Alledgence be not sustained Before an Interlocutor be reported the Process is brought to the Ordinary who peruseth the same and prepares it for the Lords And either Party give their Informations to the Lords containing the deduction and favour of the Cause and the Dispute which they may inlarge by reasons in their Informations as much as they please but may alledge no matter of Fact by way of Defense or Reply but what was proponed at the Bar. The Ordinary doth the next Day or soon after relate the Cause and repete the Dispute to the Lords And if he find any matter of Fact in the Parties Informations which was not proponed at the Bar he either hears them again upon it or he reports and shows to the Lords that it was not proponed And if they find any thing weighty therein they will desire him to hear the Parties upon it either before Interlocutor or after as they see cause Upon report of the Dispute the Points that any of the Lords think material are stated and ordered and any of the Lords reason thereanent And if they be not unanimous the Points whereupon they differ go to the Vote And then the Ordinary causeth call the Parties in the Outer-house and reports the Interlocutor which is minuted by the principal Clerk and declares what the Lords sustain or repel And immediatly after ordains the Defender to insist in his further Defenses or the Pursuer in his Replys and so proceeds from Day to Day to new Interlocutors until the Cause be fully discuss'd either by Decreet or Protestation or Litiscontestation And if either Party have omitted any thing upon their application to him before the Sentence or Act be extracted while he sits without he will hear them And thereafter if by Bill they represent any new matter of moment the same of course is appointed to come to the Ordinary and he will hear them thereupon And if he refuse them the Lords upon hearing of the Bill if they find cause will ordain the Ordinary or some other to hear it Each Ordinary doth also order the extending of Acts whereof either Party gets a Scroll before they be extracted And if they differ the Ordinary determines
declined if they be of any of those Relations to the other Party Fifthly If the Judge be a Party or have any interest in the Cause Sixthly If he have showen any malice or enmity against the Complainer Seventhly If he have committed any Iniquity by repelling any relevant or competent Alledgence or sustaining that which is irrelevant or incompetent against the Complainer These or like Reasons of Advocation being found relevant and instructed Letters of Advocation are pass'd under the Signeâ—â— commanding the inferior Judge to proceed no further but to send the Process and all that hath been done therein to the Lords for which a Term is assigned Which being past the Pursuer of the principal Cause and Defender in the Advocation gives in to the Clerk a short Copy of the Advocation and craves Protestation and Remit which is admitted of course by the Clerk if none compear to produce the Advocation But if any appear some Dayes after are assigned to him to produce which is marked by the Clerk upon the Copy and being again called with certification That if he do not then produce Protestation will be admitted and the Cause remitted to the inferior Judge at that time if he produce not Protestation will be admitted If the principal Advocation be produced the same is given up to the Defender against whom if he do not return it within four Dayes together with the Clame before the inferior Judge Protestation is admitted But if he return it the same is inrolled in the Roll of Advocations according to the Date of the Return And when it comes to be called by the Ordinary the Pursuer of the principal Cause produces his Clame with the Copy of the Advocation which was returned and craves Protestation and Remit which if the Raiser of the Advocation do not compear or insist not in his Advocation is accordingly granted But if the Raiser of the Advocation compear and insist the Advocate for the Pursuer of the Principal Cause doth briefly relate the Cause and before what inferior Court it was pursued and craves it to be remitted and the Advocate for the Raiser of the Advocation repetes his Reasons of Advocation for which he alledgeth the Cause ought to be advocat to the Lords which stand mainly in the Points before adduced The Reason of Advocation upon Incompetency of the Judge is most ordinary and that either in regard of a personal Priviledge of the Party conveened as in the case of the Members of the Colledge of Justice who by Act of Parliament have the priviledge that they may advocat their Causes from any inferior Court to the Lords or in regard of the matter so no inferior Judge is competent to discuss the Nullities of any Right neither are they competent to Declarators of Escheat and several other Actions The Reason of Incompetency may also be founded upon the Parties not being within the Iurisdiction All these Reasons of Incompetency are elided by the Partie`s compearing and proponing any Defense except it were a Declinator For by proponing any other Defense he acknowledges and homologates the Authority of the Judge and therefore cannot question the same upon the point of Incompetency But if the Incompetency arise upon the matter in question which did not not appear at first but appeared thereafter upon the Debate of the Parties as if the Cause dipped upon the discussing and competition of different heritable Rights or if there arise a Debate upon the Nullity of any Right in these Caâ—es compearance and acknowledgement of the Auctority will not exclude the Reason of Advocation The Reason of Advocation upon suspition of the Judge as too much interessed in the one Party or too much unfriend to the other stands much in the arbitrement of the Lords the precise Degree of Consanguinity or Affinity or the acts of Enmity not being determinat in Law And it is the same in the case where there are more Judges and the Reason meets but with some of them or only with the Deputes or some of them or only with the Clerk When the Reasons of Advocation are dubious sometimes the Pursuer of the principal Cause and sometimes the Ordinary will offer to the Raiser of the Advocation to advocat of Consent provided the Pursuer of the principal Cause will dispute the Cause instantly or otherwise will dispute the same without further sight of the principal Process or extracting an Act of Advocation For when otherwise the Parties advocat of Consent they are to do it when the Clerk calls and there must be an Act extracted upon the Consent If the Cause be advocat upon the Relevancy of the Reasons the same must be instantly instructed and if they consist in facto as the Residence of the Party the Affinity or Enmity of the Judge the Raiser of the Advocation ought either to have Witnesses instantly ready to prove or at least Testificaets of Persons above exception and known to the Lords For there the question is not for deciding of the principal Cause Advocations are hardly sustained after Litiscontestation before inferior Courts unless it be upon the Reason of Iniquity which is alwayes sustainable and doth sometimes with one breath determine both the Advocation and principal Cause The Cause being advocat either of Consent or by Authority of the Judge the principal Cause advocat being seen by the Raiser of the Advocation thereby become Defender of the Cause together with the Act of Advocation extracted then it comes in as an ordinary Cause in the first Instance But the Defender will be reponed and heard upon any Defense which was unjâ—stly repelled to him by the inferior Court and upon any other he pleaseth because one being unjustly repelled he was not obliged to propone any further The order in discussing of Suspensions is thus The Charger against whom the Suspension is obtained after the Day of compearance in the Suspension is past gives a short Copy of the Suspension to a Clerk and causeth call it in the Outer-House If none compear for the Suspender Protestation is admitted of course If an Advocate compear for the Suspender then the Clerk assigns a short Day to him to produce the principal Suspension and at that same time the Charger may give him out the Charge being the Decreet or Sentence obtained The first Diet being come the Clerk calls the Copy again and assigns a second shorter Time with certification That if he produce not Protestation will be admitted And then calls the third time and if the principal Suspension be not produced with the Charge if it was given out in time Protestation is admitted All which is marked by the Clerk on the back of the Copy and being put in the Minut-Book and read it may be extracted the next Day But during that time the Production of the Principal with the Charge to the Party Clerk or Keeper of the Minut-Book will stop the Protestation The which order is also used for getting back of Advocations and seing
the same according to the Minuts and meaning of the Lords In all which hardly can any Party get hurt but by their own negligence or the fault of the Clerks who if they extract any thing unwarrantably the Lords will mend the same even after it is extracted In discussing of Processes it is ordinary for Parties not called to compear for their interest but they will not be heard till their Interest be produced and then they will be heard in the same manner as if they had been Parties in the Cause There ariseth oftimes upon this occasion the competition of many Rights which are mutually interchanged and every one of the Parties admitted for their interest must see the Productions of all the rest In which case the Lords do frequently ordain all Parties to produce such Writs as they will make use of in the Cause with Certification that they shall not be heard to produce any thereafter which nevertheless extends only to such Writs as they then have in their power And then the principal Cause proceeds and is either referred to some of the Lords to be heard in the afternoon or otherwise the Ordinary sees and compares the Productions of the Parties and at the calling of the Cause he declares what he finds evident and clear as to the Preference And then ordereth the Parties to dispute allowing the second Right to be first dispute with that which he finds preferable and which of them prevails the rest in order to compete therewith untill all be discussed and one only be preferred or otherwise some of them jointly or some of them primo loco and others secundo loco c. Competition of Rights doth also come in by Double Poinding and that either by way of Suspension or Action whereby the several Parties are cited to produce their Rights and to hear and see it found and declared who hath the best Right that thereby the Parties liable may be out of hazard The Action of Double Poinding proceeds on a simple Summons on six dayes The Suspension is like other Suspensions but that it suspends the Right of all Parties till it be discuss'd This is the ordinary way of discussing of Processes by premitting the Point of Iustiâ— or Relevancy and then admitting the Point of Verity to Probation according to what is found just and not till it be found just for frustra probatur quod probatum non relevat In the Probation the benefit or burthen thereof is ordinarly assigned to one Party without joint Probation Whereupon ariseth the frequent Debate Who shall be preferred in Probation especially where the Alledgences are contrary As if one offer to prove violently spuilzied and taken away by force the other Party alledgeth voluntarly delivered and taken away by consent the question will be Who shall be preferred in Probation wherein the common Rule is That where the Defense is contrary to the Libel he that is in libello is preferred But even there and in all Cases the most special and pregnant Probation is preferred As in Spuilzies the Pursuer libels violence the Defender offers to prove lawfully poinded which is contrary yet being to be proven by Writ viz. by the Executions of the Poinding the Defender is preferred Thereafter the Parties are ordained particularly to condescend on the Circumstances and sometimes on the Witnesses Names that the most special Condescendence and the most unsuspect â— Witnesses may be preferred But in several Cases the Lords premit the Probation to the Discussing of the Relevancy and therefore before Answer ordain Witnesses ex officio to be adduced And where they see it dubious who ought to be preferred in Probation they use before Answer to the Dispute to ordain Witnesses to be examined hinc inde and such Writs and Evidents to be adduced as either Party will make use of And then they advise the Relevancy and Probation together and must not admit new Probation or new Alledgences in Fact competent before the Act but the Act before Answer stands as an Act of Litiscontestation in all Points and hath the same Terms to prove with Litiscontestation In Acts of Litiscontestation not only the Points to be proven are determined but also the manner of Probation which is either by Presumption Writ Oath of Party or Witnesses Presumptions are not put to probation in the future but are cognoâ—ced in the very Act and instantly verified though from the Probation it self Presumption may arise And therefore the manner of Probation is ordinarly appropriat to Writ Witnesses and Oath of Party and that which is presumed is said to need no Probation Presumptions are of three sorts either juris de jure or juris or judicis Praesumptio juris de jure is that which the Law determineth and presumeth upon the Point of Right which is so strong that it is a full Proof and admits no contrary Probation Unto which is reduced fictio juris that which the Law for utilities sake presupposeth to be and holdeth to be true though it be not So the Heir is presumed to be one Person with his Predecessor and the Defunct's Possession is esteemed the Heir`s Possession whereby whatever was possessed by the Defunct if it was not effectually transmitted is repute as possest by the Heir though he exercise no possessory act either of body or mind thereanent Most of our Certifications are founded upon such Presumptions as a Writ is improven for not production upon this Presumption that the Defender keepeth it up because he knows it is forged and therefore it is declared to be forged Which Presumption doth not admit contrary Probation So a Partie`s being holden as confess`d is founded upon the Presumption that by his Oath he could not deny the truth of what is alledged So the using of false Writs proprio nomine without Protestation expressing the way how the Vsers came by them is a Presumption of their being accessory to the Forgery Praesumptio juris is when the Presumption is acknowledged in Law but admitteth contrary Probation So Dispositions of Moveables Tacks c. made to a Rebell`s Bairns Friends or Servants are presumed by Act of Parliament to be fraudulent and to the behoof of the Rebel yet so as the contrary may be proven if any equivalent Cause be instructed In like manner Dispositions of Lands c. made by Persons Bankrupt or insolvent are presumed by Act of Par. to be fraudulent and in prejudice of Creditors without an equivalent onerous cause And albeit in themselves they bear expresly an onerous cause either generally or particularly for Sums of Mony or Deeds done yet when granted in favour of conjunct and confident Persons they are presumed to be without a true onerous cause and the Rights themselves bearing the same are not trusted albeit the contrary may be proven by instructing the onerous cause for which they were granted Praesumptio judicis called also praesumptio hominis is that Presumption which is not expresly in Law but