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
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
common name both of Decreets in favour of Suspenders and of Decreets in favour of Chargers whereby the Lords find the Letters orderly proceeded either simply or ay and while such a thing be done And sometimes the Lords suspend the Letters for a part and find the Letters orderly proceeded for the rest If any Point be admitted to be proven either of the Reasons of Suspension Reply Duply c. whether it be in favour of on of the Parties only or of both when they have different Points to be proven then Litiscontestation is made and an Act must be extracted which is an Act of Litiscontestation But ordinarly in Suspensions there is a present Decreet In all Reductions there are several things different from ordinary Processes for thereby Decreets Acts or other Rights are craved to be reduced or rescinded either upon Nullities therein or upon Reasons in facto or other Rights eliding the same albeit of themselves they be not null So that whatsoever is competent as a reason of Suspension is much more competent as a Reason of Reduction albeit many things be not competent by Suspension which are competent by Reduction And therefore when that occurrs Suspenders use with the Suspension to raise a Reduction that when the Suspension comes to be discuss'd those things that are not competent by Suspension may yet be received in the Suspension because of the Reduction Especially if the Reduction be seen and the Pursuer hold the production satisfied by the Charge Then repeting his Reason of Suspension and Reduction as coincident he will get the same Terms in both But if he will not hold the production satisfied by the Charge then he must debate the Reason of Suspension alone and if they be not found competent and sufficiently instructed the Letters will be found orderly proceeded in the Suspension reserving the Reduction as accords And if the Reduction be seen and be probable to be soon ready and upon relevant Grounds then the Decreet upon the Suspension will be suspended to be extracted for a time that in the mean while the Suspender may insist in his Reduction which sometimes is prorogat upon Supplication as the Lords see cause And when the Decreet of Suspension is extracted if there be Reduction depending the Suspender doth oftimes obtain a second Suspension that he may conclude his Reduction but the giving or extracting the second Decreet of Suspension is seldom delayed upon a Reduction which was either not rised or not ready the time of discussing the first Suspension In Reductions the Will commanding the Defender to be cited is put in the first place and then the Writs called for to be reduced in the next and last the Reasons of Reduction which with the Writs called for are left blank ordinarly at the raising of the Reduction and filled up afterwards before it be given out to be seen containing such Reasons as the Pursuer knows relating in particâ—lar to the Writs called for and such other general Reasons as commonly may be alledged against any Writ as wanting Witnesses or the Designation of them or wanting the Designation of the Writer or being vitiat in the Date or other Substantials which are libelled mainly to compell the Defender to produce because he is obliged to produce no Writ but such against which there is a Reason libelled But after the Writs called for are produced the Pursuer useth to cut the Summons and to libel such Reasons as he sees thence emergent whereupon the Dispute follows But because Certifications upon Reductions alone do only conclude the Writs called for to be reduced ay and while they be produced which will be sufficient until the Decreet of Reduction be reduced and till in the Reduction the Writs reduced be produced for till that time no use can be made thereof against that Right whereupon they were reduced and because the Certification in Improbations is far more absolute and strong bearing That the Writs called for shall make no faith in Iudgement but shall be repute as false and fenzied because they were not produced therefore in the same Libel Reduction and Improbation are frequently joyned whereby all the Writs called for have a general Reason of Falshood libelled against them Which Reason of Falshood may not be eiked in the Reduction but the Improbation must be libelled upon a Bill pass'd with the concourse of His Majesties Advocat as in crimine falsi The calling upon the Copy of Reductions and obtaining Protestations by the Defender is alike as in other Process And when the Pursuer compears if the Defender be absent the Clerks calling the Summons of Reduction do admit Certification of course and if compearance be made the Reduction with the Titles Grounds and Instructions thereof are given out to the Defender's Advocat And if they be not returned in due time the Pursuer causeth call upon the large Copy to reproduce the Process against such a Day and then assigns another Day with Certification and then admits Certification Which may be extracted within twenty four Hours after it is read in the Minute-Book unless the Process be reproduced And that Decreet is the strongest of any of that kind because Decreets of Certification in Reductions and Improbations require no Probation but are granted upon the contumacy of the Defender who refuseth to produce And therefore that Certification is intended to force them to produce since otherwise the Right will be reduced and improven and be holden as false and fenzied When Reductions are seen returned and inrolled at the calling thereof by the Ordinary the Pursuer`s Advocat doth shortly relate his Title and the Writs he calls for to be reduced and improven generally or particularly and then craves Certification contra non producta The Defender`s Advocat may also relate the Cause and doth then propone his Defenses against the Executions the Pursuers Title or upon the Interest of either Party or alledgeth That all Parties interessed are not called and urgeth the Pursuer particularly to condescend on the Writs called for and debates whether he hath interest by his Title produced to call for them either for reducing or improving of them Where there ariseth many important Debates which being discussâ—d the Defender takes a Term to produce and sometimes the Term is assigned Reserving all the Defenders Defenses against the Interest of the Party and the Alledgences against the Production which Reservation continues till all the Terms of Production be run And when Certification is granted contra non producta if the Defender produce any thing he will then be heard to dispute Why he ought to produce no further and that not only from the Interest of the Pursuer whereby he cannot call for any other Writ than what is produced but also upon the Ground That the Defender hath produced sufficiently to exclude all Rights produced by the Pursuer In which Case the Lords will sometimes hear the Parties debate their Rights even before the Production be closed
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