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 Approx. 159 KB of XML-encoded text transcribed from 23 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2003-01 (EEBO-TCP Phase 1). A61250 Wing S5179 ESTC R13544 13586992 ocm 13586992 100573 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A61250) Transcribed from: (Early English Books Online ; image set 100573) Images scanned from microfilm: (Early English books, 1641-1700 ; 851:15) 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. 44 p. Printed by the heir of Andrew Anderson ..., Edinburgh : 1681. Reproduction of original in Huntington Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Scotland. -- Court of Session. Process -- Early works to 1800. Process -- Scotland -- Early works to 1800. Civil procedure -- Early works to 1800. Civil procedure -- Scotland -- Early works to 1800. 2000-00 TCP Assigned for keying and markup 2001-11 SPi Global Keyed and coded from ProQuest page images 2002-03 TCP Staff (Oxford) Sampled and proofread 2002-03 Judith Siefring Text and markup reviewed and edited 2002-04 pfs Batch review (QC) and XML conversion 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 rai●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 ●dinb●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 ●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 , Li●erenters , Wad●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 cou●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 produ●e a De●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 S●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 again● 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 fi●st cited , the second Citation must be given to a new Diet by Messengers , when any Point is re●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 Protest●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 Copy● and give him a short Diet more , to produce , with Certification that Protestation will be admitted . And then calling the third time , the Ordinary will admit Protestation unless the Process be produced . Upon which Protestation the Defender may raise a Summons against the Pursuer to insist , with Certification if he insist not , never to be heard again . Wherein if the Pursuer of the principal Cause appear , he will get a Day to produce and insist : at which time Certification will be admitted . Or if at the first , the Defender compear not , the Day of compearance being past , if the Pursuer of the principal Cause appear , he gives in his Summons to a Sub-clerk who calls the same after the Day of compearance is past , though there be no Judge present . And if none appear for the Defender , the Clerk writes thereupon , and either decerns or assigns a Day to prove as the Procurator demands , or grants Certification . But if the Cause be not ordinary and obvious , the Clerk must advise with the Lords : who will consider the Relevancy of the Summons , and the sufficiency of the Probation , and either give Act or Sentence as they see just ; or otherwise forbear , if the Libel be not relevant and proven . In ordinary Cases the Clerk extracts the Decreet or Act , as if it were done upon special notice of the Lords . If any Compearance be made for the Defenders , the Clerk then marks upon the Summons or Act of Continuation the names of the Pursuer's Advocat and Defender's in these terms , Actor such a man , alter such a man to see . After which there can be no further procedure till the Process be seen by the Defender's Advocat . And if there be several Advocats for several Defenders , the Process is marked to be seen in such a mans House , where they should either conveen to consult their several Interests , or borrow the Process for that effect , and return it . But the Pursuer doth more safely , when he takes back the Process from the first Party , and gives it to be seen severally to the rest . For otherwayes they will delay him when they come to the Dispute , and will at least get liberty to see the Process in the Clerks hands till the next Calling , that in the mean time they may borrow the Process from the Clerk ( upon their Receipt ) and see the same . Processes were accustomed not only to be seen and called once every Session , and if they were not marked by the Clerks so called , there could be no Process till a Summons of Wakening was raised : for they were not only said to be asleep in the mean time , but also the Defender's Advocats were not obliged to answer , unless they had seen the Process that same Session . But since the Act of Regulation , a Process being once seen is not to be seen again , unless there be Alterations in the Summons , or new Productions . Yea when the Process hath not been called for a whole year , and that thereupon there be a Citation upon a Wakening , the Cause goes on as it stood in the Roll before , and is only seen with the Wakening in the Clerks hands . The Pursuer's Advocat when he gives out the Process to be seen , writes upon the back thereof , Given out by &c. to &c. to be seen , and subscribes the same . And after two or three dayes calls for the Process back . He doth also ordinarly write an Inventary of the Process apart , or upon the back of the Summons and the Defender`s Advocat by accepting of the Summons , is presumed to have received the same the day mentioned upon the back of the Summons , and to have received the Peeces of the Process mentioned in the Inventary : because if these be not truely set down , he may refuse to accept of the Process . If then the Defender`s Advocat deliver back the same , he must write upon the back , that they are seen by him and subscribe his name . Which if he refuse to do , and to give back the Process , the Pursuer by a Ticket may complain to the President , or Ordinary upon the Bills , who will call the Defender's Advocat and amerciat or fine him , till he produce . Or otherwise the Pursuer upon a Copy of the Summons , may cause the Sub-clerk call the Defender's Advocats to reproduce the Process , With Certification that if he do not , his Copy will be holden as a principal , and holden as proven , whereupon the Defenders will be decerned . Which Certification being admitted , a Decreet for not Reproduction may be extracted , which will have all Execution as any other Decreet in absence : and albeit it be more easily suspended , yet not ordinarly without Caution . But for the Security of Parties , that they may not be wronged by the Clerks , all that passes every day , is mentioned in the Minute Book : which Book is read in the Outer-House every day after twelve a clock , and nothing can be extracted till it be read in the Minute Book and twenty four Hours thereafter ; that in the mean time either Party may compear and produce , or take up the Process and get the Decreet delet out of the Minute Book , and oftimes at the very reading of the Book , they compear and get it delet . If the Pursuers after the Process is seen , make any alteration therein by production of new Writs , and altering or mending of the Summons ; the Defender must see of new again the Peeces of the Process , or the Pursuer's Title , where there is any required to be produced , ( which is in most Causes ) and which instructs the Pursuer's Right , as the Summons , or Charge , with the Executions Acts of Process , and Writs produced for Probation . Processes allowed to be seen in the Clerks hands being kept up beyond the time appointed , upon Complaint from the Clerk , they are ordained to be delivered the next day under a certain Penalty , as ten or twenty Dallers . And upon the second Complaint , Warrant is given to debar Advocats from coming within the Barrs , and to incarcerat Agents and Servants , till the Process be reproduced and the Fine payed . Processes being thus seen and ready for Dispute , the same are inrolled according to the Dates of the Return marked upon the backs thereof ; he who is first ready being first to be discuss'd , without preference of the Parties : except the Kings Causes , which after fight may be called without inrolling , at any time upon 14. dayes Intimation to the Defender's Advocats , wherein Donatars Processes are not comprehended . Which Rolls being affixed on the Walls of the Outer House Parties and Advocats may inform themselves , to be in readiness to dispute without surprisal , or tergiversation . Ordinary Actions after they are seen , returned and inrolled are called by the Roll. If the Pursuer compear not to insist , the Defender may crave Protestation upon his Copy . But ordinarly the Pursuer compears , and relates the Cause shortly , if it be an ordinary Summons , the tenor and nature whereof is fixed and known ; which therefore he needs not relate , but only mention the Summons and crave Decreet , if there needs no further Probation : and if there do , he then craves a Day to prove . But if the Cause be upon a libelled Summons , not having a particular known Stile , the Pursuer doth more fully relate , not only the tenor of his Summons , but the merits of his Cause , to inforce the justness and equity of the Cause in particular : unless the Lords upon hearing the relation of the Summons stop him , till it appear whether the Defender controvert the Relevancy thereof , yea or not . For it is an improfitable spending of time , for the Pursuer to inforce the Relevancy of the Summons , if the Defender controvert not the same . In the next place , the Defender if he resolve to dip upon the merits of the Cause , or to adhere rigorously to exact form in the order , then he relates the merits of the Cause , and odiousnesse of the Pursuit , and thereupon proceeds to his Defenses . Defenses do not only comprehend Exceptions properly so called , but all Objections against the Relevancy of the Summons , Order , and Interest . And therefore the Defender propones his Defenses against the Order of the Process ; and first , That the Day of compearance is not yet past . And because the Day of compearance in the Summons and Letters by negligence is left blank , the Defender uses to score the same , or to fill up a wrong Day , and to object thereupon . But if the Day of compearance be mentioned in the Execution , it will be sufficient , albeit the Blank be scored : and if it be wrong filled up , the Ordinary will sometimes cause the Clerk immediatly mend it , and so proceed . And at other times doth as he seeth the Cause favourable , or not . The second Defense is upon the Dayes of Citation : wherein the common Rule is , that against Persons without the Kingdom , Citation should proceed at the ●iercat Cross of Edinburgh and Peer and Shoar of Leith , upon threescore Daye● for the first Summons , and fifteen Dayes for the second ; and for Persons within the Kingdom upon twenty one Dayes for the first and six for the second . From this Rule are excepted Summons upon recent Spuilzie , Ejection , Intrusion , or Succeeding in the Vice of Persons against whom Decreet of Removing is pronounced , which are priviledged by Statute to proceed upon a Citation of fifteen dayes . And by Custom Removings , Causes alimentary , Exhibitions Summons for making arrested Goods or Sums furthcoming , Transferrings , Wakenings , Poindings of the Ground , special Declarators , Suspensions , Prevento`s , and Transumpts are commonly priviledged by the Lords Deliverance upon six Dayes . And the second Citation when it is needful is always upon six dayes except against the Inhabitants of Edinburgh , and the contiguous Suburbs thereof , where the second Citation may be upon twenty four Hours which is declared by Act of Sederunt . Iune 21. 1672. concerning priviledged Summons . And the Writers to the Signet are prohibited to insert any other Priviledge . The third Defense is , That the Summons hath not two Citations conform to the Act of Parliament 1672. For clearing whereof it is to be considered , that the reason of double citation is , that the Defender may have more Citations before any Process be sustained against him , not only to give him competent time to propone his Defenses , but to ascertain him of the Citation , which is some times clandestinely done , but not so easily when there are reiterat Citations . Some times Causes are priviledged to proceed upon one Citation by Law and Custom , and sometimes by the Lords Deliverance . The Law allows no Continua●ion of recent Spuilzies , R●movings , and Actions accessory to the Lords Decreets , as special Declara●ors ; unless the Cause be of the greatest importance , as Reductions , Daclarators of Property , and Declarators of expyring of Rev●rsions . For though ●hese require no further Probation either by Writ or Oath of Party ; yet because of their importance they must be continued . And so must all Summons which are to be proven by the Defender's Oath of Ve●ity , or by Witnesses . The fourth Defense is upon the tenor of the Executions . As first , if the Pursuer crave the Defender to be holden as confess`d , then the De●ens● is , That he was not personally apprehended by a Messenger at Arms , or That the Execution bears not that a Copy was delivered : but if it bear a Copy delivered it will be sufficient , albeit it bear not personally apprehended , because it doth import it . Secondly , if the Defender was not cited personally but at his Dwelling-House , the Execution will be null if it bear not , That the Executer gave six Knocks at the most patent Door or Entry of the Defender's House , designing the same , and that he either delivered a Copy to the Wife , ●●irns , or Servants ; or that he affixed a Copy upon the most patent Door or Gate . It must also contain two Wi●nesses at least : and it mus● be stamped . If any of th●se be omitted the Execution will not be sustained . But the Pursuer may take up his Summons and mend the Executions , abiding by the verity thereof : and it must be seen again by the Defender . The fi●th Defense useth to be upon the Pursuer`s Title , whereby the Defender alledgeth , No Process , because the Pursuer produced no sufficient Title in initio li●is . As if an Heir pursue without production of his Retour , an Executor without a C●nfirmation or Licence , an Assigny without an Assignation , &c. And almost in every Process , that does not meerly consist in facto , a Title in Writ must be produced in initio litis : whereupon there ariseth much debate , ( and very divers and different , ) what Writs must be produced as the Title in initio litis , which were too tedious here to relate . The sixth Defense is upon the Interest of the Defenders not cit●d : whereby the Defender alledgeth , That all Parties having Inter●st are not called . As i● a Pupil were called without his Tutor's being called , at least in general , at the Mercat Cross where the Pupil dwells : or if a Vassal 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 the Writs produced , and the Objections made against the same . Wherein the terms are not , That the Writs are not relevant , but that they instruct not , or that they are not to be respected for such reasons : and the Pursuer endeavours to inforce the same , and answer the Objections . In all which it is improper to mention Relevancy . The ninth Defense is upon the Competency , Whether the Suit be competent hoc ordine . For albeit the Libel be relevant , yet it may not be competent . Exceptions , so properly called , are not founded upon the Defects of the Pursuit , but are founded upon some positive Right or Fact , distinct therefrom , exclusive thereof : and that either for a time , or for ever . Those Exceptions which exclude the Defense but for a time , are therefore called Dilators : those which elide the Cause for ever , are therefore called Peremptors , quia perimunt seu destruunt causam . And albeit Dilators may assolzie the Defender ab instantia aut lite , yet never ● causa . And therefore some Dilators are more properly termed peremptoriae instantiae . To make both clear by example ; in the most frequent Pursuits , as in Actions for Debts , if the Defender alledgeth that the Pursuer cannot insist for payment of the Debt , because the Debitor by his Promise or Writ is engaged not to seek the Sum for a time , or hath renounced or discharged Action or Sentence ; if the time be not very long to come , Sentence will be pronounced , suspending execution till that time : which qualifies the Sentence , and is dilatory as to the execution . But if there be an absolute Paction upon the Debitor's part de non petendo , or that the Defender hath his Discharge or Renounciation of the Debt , or if the Defender alledge Payment or Compensation ; these Excep●ions are peremptory , which if proven willassolzie the Defender for ever . And though commonly all Defenses , whether they be Exceptions or Objections , are called dilatory , if they do not absolutely determine the Cause : yet it is clear what difference is betwixt an Exception and Objection : the Objection being only the alledging of a Defect and Nullity in the Pursuit , and therefore are partes judicis , which if he do accurately notice , although there were no Defender , he would not decern . As if there were an Act or Sentence craved before the Day of compearance were come , or if the Summons were not upon the Dayes requisit by the Law , or if the Executions were defective in the Requisits ordained by Law , or if the Libel were not relevant , or any member thereof , or were not competent in such a Process : all which reasons are negative , and require no further Probation . But proper Defenses are positive and are not proper to the Judge to supply : and are not founded upon deficiency of the Process , but upon some positive Right or Fact competent to the Defender . Dilators must be instantly ve●ified , and there can be no Term assigned for proving thereof . Secondly , they are not competent to be proponed a●ter proponing of Perempto●s . Thirdly , all Dilators must be proponed together , or at least at the second Calling , that they may not be drawn in length . As to the first , that Dilators must be instantly verified , the reason is because they do not determine the Cause , and to run a course of Probation for instructing a Dilator , were tedious and expensive , and not worthy of the work . Therefore Defenders are to prepare themselves , and have in readiness the Writ or Witnesses to inctruct the Dilator , which will be received without any Citation or Diligence , but being instan●ly called by a Macer will be admitted . For instance , if a Tenent be pursued to remove , and alledge , all Parties interessed are not cited , viz. his Master , to whom he is Tenent by payment of Maill and Duty before warning : this is a Dilator , and it must be verified instanter , that the Person he condescends upon was his Master before the warning : which may be done either by production of his Master`s Discharges , or by Witnesses , if they be in readiness . Yet in some Cases a Term may be granted to instruct a Dilator , as if the Defender have a Supersedere of the Pursuer for a considerable time , or a probable cause for which he hath not the Writ in his own hand : if he make faith de calumnia , he may get a short time cum onere expensarum . Which is most fully performed without assigning a Term or Diet to instruct the Dilator , but repelling it as not instructed , yet superse●ing the extract of the Act or Decreet for some short time , that if in the mean time he De●ender produce the same , it may be received . If a Dila●or be sustained , the Defender may extract the Sentence thereupon , which in effect is an Absolvitor from that Ins●ance . And if the Pursuer do not mend the Executions and Libel before it be extracted , he will not be heard thereupon till new Citation . As to the peremptory Exceptions this is a Rule , that exceptio falsi est omnium ul●ima . and after Improbation is proponed the Defender can return to no other Defense , unless i● be emergent , o● new come to his Knowledge . But where Improbation is not by Exception , but by way of Action joynt with Reasons of Reduction , the Reasons of Reduction and Improbation may be insisted in together , and Probation allowed in both joyntly , or severally , because they are but two Lib●ls in one Process . When a Peremptory is proponed , the Dispute then runs first upon the Compet●●c● ●h●reof , and next upon the Relevancy ; both which are the Objections agai●st th● Exception , and are not Replys . For as the Exception is upon some Right or Fact positively alledged , eliding the Libel , albeit defective in nothing ; so is the Reply to the Defense , and the Duply to the Reply , &c. As to the Competency of Defenses , the chief Objection is , That such an Alledgence is not receivable by way of Exception without Reduction . As if any person be pursued upon a Bond , and alledge Minority and Laesion , or alledge Interdiction , or that the Bond was granted by his Predecessors in lecto aegritudinis ; these will be repelled as incompetent . Much more , if in any Pursuit upon a real Right , it should be alledged to be a non habente potestatem . So also nullitates facti upon Clauses of Failzie , bearing that in such and such Cases such Rights should be null , are incompetent by way of Exception , even albeit the Clause bear that the same shall be null without Declarator : for the Lords notwithstanding , will not sustain the same without a preceeding Declarator . If these Provisions be penal , the Lords will also allow the Parties to purge the Failzie , by performance at the Bar , in the Declarator : and therefore not sustain such Alledgences by Exception , or by Suspension ; but by Reduction , or Declarator : especially in heritable Rights , and matters of great moment . Though in matters of small moment , when the Parties are poor , they will indulge that favour , which is competent to them by the eminency of their Office , whereby they are not altogether straitned by the limits of ordinary Form. For albeit the Act of Parliament 1621. against fraudulent Alienations make them null by Exception , or Reply ; yet the Lords do not sustain it , in regard that no Infeftment can be taken away , without the Superiors and Authors be called . But Nullities in Law , whereby there is a visible defect in the Solemnities requisit to a Writ or Right , which requires not the calling of a third Party ; are competent by way of Exception , or Suspension : and in effect are rather Objections , than Exceptions . As , That a Writ is null by the Act of Parliament 1540. because it wants Witnesses : or because , the Witnesses , or Writer , or both are not designed : or because , being a Writ of importance , it is subscribed by one Notary , and not by two Notaries and four Witnesses . Against the Defense of Nullity upon the want of Witnesses , this Reply is relevant , That the Writ is holograph , all written and subscribed with the Granter`s own hand ; which is probable by Witnesses : not only if they prove , That they saw the Writ subscribed ; but if they positively affirm , and clearly cognosce , That it is the ordinary Hand-writ of the Party , both as to the Body and Subscription . Against which Reply , this Objection is competent ; That the point to be proven , is concerning the Date , or time of the Subscription : which the Writ cannot instruct , albeit it be proven holograph . Yet the Lords will sustain the same , if it be proven by other Adminicles , and Witnesses who saw the Writ subscribed of the Date it bears ; or who saw the Writ before the time in question : but such Witnesses must be above all exception . As when a Discharge granted by a Cedent , is excepted on , against an Assigny ; who if he alledge , That it is null , as wanting Witnesses , and the Defender in fortification of his Defense offer to prove , That it is holograph : and the Pursuer yet objects , That it cannot prove the Date ; the Defender in fortification of his Defense offering to prove by Writs relating to the Discharge , or Witnesses above exception , That they saw the Discharge as it now stands , before the Intimation of the Assignation ; the Lords will sustain the Defense , if so fortified . Which albeit it appear to include a Duply , and Quadruply ; yet it is but a complex Defense : seing as to the members thereof , there interveens no Reply , nor Triply , but only two Objections : which the Lords upon advising , might supply , albeit not objected by the Party . As if in a Reduction of a Bond against an Assigny , as being payed before the Intimation , or Assignation ; if the Defender be absent , and a holograph Discharge be produced , the Lords , if they advert to it , will not find the Reasons proven ; unless the Pursuer prove it holograph , and instruct the Date thereof to be true , or at least anterior to the Intimation . The Nullity of the want of the Writer`s name insert , or the Witnesses , is elided by condescending upon the Writer , and his designation , and upon the Witnesses : seing thereby the intent tf the Act of Parliament is fulfilled , which is that there may be means to improve such Writs if questioned . All these hold not in Writs that are regulat by the Law of Nations , and not by the proper Law of our Country , in which the Consuetude of Nations is sufficient to astruct the Writ : as Bills of Exchange , Orders , Letters of Advice , Accompts , and Receipts amongst Merchants , which do require no such Solemnities . And in like manner Writs not made in Scotland but abroad . secundum consuetudinem loci , are valid without these Solemnities , and take effect in Scotland . But the Custom of that Place's observing , or not observing such Solemnities , must be instructed . As Writs subscribed by one Tabellion , in France , and Germany ; and Writs sealed and delivered , in England , or Ireland ; prove , though the Writer be not mentioned , nor the Witnesses designed . But in these two Kingdoms , if the Writ bear only to be signed , but not to be sealed and delivered ; it doth not yet prove , till it be approven by the Oaths and Testimonies of the Witnesses . In proponing of Exceptions , the Defender ought not to give Reasons for the Competencie , or Relevancy thereof , unless the Judge call for them : as when they are not ordinary , and appear not to him relevant and competent , though there were no answer made . Otherwise , having repeted his Defense , he should be silent , untill he see if the Pursuer object against the Competency or Relevancy thereof ; or whether he propone a proper Reply , to elide the Exception , without further Debate . In which the Dispute goes over to the Reply , and so unto the Duply , untill the Point be discuss'd . The Defender may also propone several Defenses , which , if found relevant and competent , he will be heard upon all . And what he omits , that was then competent , will not be receivable in the second Instance , by Suspension , or Reduction : nor will be admitted after Litis contestation , unless it be then instantly verified , or be emergent , and new come to Knowledge . The reason is , that Process be not drawn in length , to the vexation of the People in their Rights , by perpetuating of uncertainty of Plea. Which was alwayes used as necessary in ordinary Actions ; and now of a great while , also in Suspensions : the reason being alike in both . Exceptions are so various and many , that it is not proper here to enumerat , much less to explain them : what we intend by this , being but to give a short view of the forme and not of the matter of Process . It shall suffice to name some few most common and most ordinary . Besides what hath been said of Defenses before , and besides the obvious Exception of Satisfaction , Payment , or Discharge , and the Personall Exception against persons being Rebells , and so not having personam standi in judicio ; which will exclude the Pursuer , till it be elided by Relaxation , or till the Rights and Process be assigned , for then ( it being personal ) it will not follow the Assigny : which is also competent against the Defender , whom though the Pursuer hath called to appear , yet he may hinder him by Horning , but cannot hold him as confest , if he will not suffer him to depone : for albeit the King`s Officers might exclude him , yet Horning being but a civil Rebellion ; it is against reason , that he that provokes him to Judgment , should exclude him from it . Wherein neverthelesse , Pursuers will sometimes be so cruel as to crave the Defender to be holden as confest ; albeit they wil not suffer him to compear , and depone , which the Lords do not admit . I say , besides these , there are further the common Exceptions of Praescription , Renounciation , Innovation , Transaction , and the Exception rei judicatae , and litis contestatae . Praescription was once as large as Exception , till it was appropriat to this chief kinde of Exception . We have many Praescriptions in Scotland . As 1. of a Year : and so Tutors of Law not serving themselves within a Year , their Interest praescribes , and there is place for a Dative . 2. Of three Years : so Inquests can not be called in question by Summons of Error , so as to inferr any prejudice against the Persons of Inquest after three Years . Recent Spulzies , as to their speciall Priviledge of summar Process , Oath in litem , and violent Profits , praescribe , not being intented within three Years after the Warning . So also Actions for House-maills , Servants-Fees , and Merchants Compts , praescribe , as to the manner of Probation by Witnesses , if not intented within three years : and are then only probable scripto , vel juramento . So the Preference of the Creditors of the Debitor , to the Creditors of the Heir in affecting the Estate of the Defunct , by the Act of Parliament praescribes in three years . 3. In four Years , the Action of Reduction upon Minority and Laesion prescribes , after the Partie's Majority . 4. In fiue Years , the Right of any holden and repute Heritable Possessors , ( & so possessing for five years , ) praescribes so in the case of Forfaulture , that if the Possesor be forfaulted , & the KING succeed ; all other Parties Rights are excluded , unless they have interrupted the Possession , and raised Process within five years before the Forefaulture . 5. The effect of Infeftments of Property , and Possessory Judgments thereupon , praescribe by the Defender`s possessing seven Years , by vertue of an Infeftment , or Tack , from a third Party : so that thereby Actions for Maills and Duties , or Removings , are excluded , and the Defender`s Right cannot be taken , away but by Reduction , being clad with seven years lawful Possession . 6. The legal Reversion of Apprisings which did expire or praescribe , by seven years after the Date of the Apprising doth now expire and praescribe by the course of ten years , from the deducing thereof . And of Adjudications , the Legal expires in five years , if they be special ; and if general , in ten years . 7. Summons of Error , or Reduction of Retours deduced since 1617. do praescribe , if the Summons be not intented within twenty years after the Service . 8. And lastly , Heritable Rights● and all other Rights praescribe , if not pursued , nor possessed by , during the space of fourty years . The Exception of Praescription of 40. years , is elided first by the Reply of Minority , because that Praescription runs not against Minors : and therefore there must be 40 years , besides the years of their Minority . 2. All Praescription are elided by Improbation , because the Case of Falshood is excepted . 3. The Praescription of three years as to the quarrelling the Persons of Inquest , runs not against Minors , or Absents foorth of the Countrie . Neither doth the Praescription of the Legal of Apprisings , run against Minors . And if a Major succeed to a Minor , he hath a Year after his Succession to redeem . 4. And last of all , Praescriptions are elided by Interruption , in the manner prescribed by Law : whether the Interruption be by natural Possession , or civil by intenting competent Process , or by legal Acts or Instruments . Renounciation is a common Exception : whereby the Pursuer renouncing the Right or Action , he ( or any representing him , ) is thereby excluded therefrom But in Real Rights , singular Successors will not be excluded by Renounciation , unless there had been a Process against the Partie Renouncer , whilst he had Right , whereby the matter became litigious , which is vitium inhaerens , descending to singular Successors . But in all Personal Rights , the Renounciation of him who hath Right for the time , is valid , not only against his Heirs , but against singular Successors . Innovation is also a common Exception : whereby any new Right is given , not in Security or Corroboration , but in full Satisfaction of a former Right ; whereby that former Right is extinct and there can be neither Action nor Defense thereupon . Transaction is also a common Peremptory Defense : for thereby the former Right is either taken away in whole , or in part , and in so far only is the Defense peremptory . For there can be no Transaction , ( properly so called , ) but where the Right transacted is either innovat , or simply renounced , or quit for a Sum of Mony , or an onerous Cause , or at least abated . Exceptio rei judicatae , is where the same Cause now pursued , hath been judged before , and decerned . For there is no new Process therea●ent can be sustained : else there could be no end of Pleas. But this Exception is elided by several Replyes . As if the Pursuit be indeed for the same effect , but not super eodem medio : as when the Person pursuing , pursues as Executor for a Debt , and the Defender alledging that the Debt is Heritable , be as●olzied ; if the Pursuer thereafter enter Heir , and pursue super hoc titulo , the Absolvitor will not exclude him . And sometimes , though the medium be the same , and have been referred to the Defender's Oath , and he thereupon be assolzied ; yet if Writ after be emergent , that doth not infer Perjurie , or contradict the Oath , but proveth more nor what the Defender knew , or remembred ; it will not be excluded by an Absolvitor upon the Oath : especially if the Deponent was not positve , but to his Knowledge and Remembrance . The Exception of Litiscontestation is rather a dilator , than a peremptor Exception , because thereupon the Cause is not determined . But the Pursuer may be thereby excluded from any other Process , without prejudice to him to insist in that wherein lis est contestata : unless the new Pursuit be different from the former , at least super diuerso medio . All the foresaid common Exceptions are aswel competent by way of Reply Duply , Triply , or Quadruply , as by Exception ; and may be libelled upon , as good Reasons of Suspension , Reduction , or Declarator . In all Processes whatsoever whether in ordinary Actions , or in Reductions , and sometimes in Suspensions , Litiscontestation may be made . Which is done when those Points which are to be proven or either part , are discuss'd and determined , as to the Relevancy , and Competencie ; and that is put to Probation which will end or carry the Cause , for the Pursuer or Defender , according as the Point shall be proven , or secumbed in . Whereupon there is an Act extracted , deducing the Process , and Points sustained and admitted to Probation , and likewise those that are repelled : which doth contain the Libel , or Suspension , the Compearance of the Parties , and the Production , and the Dispu●e of all Parties compearing , and the Interlocutor of the Lords . But when all is instantly verified , or needs no further Probation , there is no Litiscontestation : which is sometimes in ordinary Actions , and frequently in Suspensions and Advocations , when the Ordinary doth at once , judge the Relevancy and Probation . But Probation after Litiscontestation , must be advised by the whole ●ords . Litiscontestation may be against the Defender absent , and then the Libel is only admitted to the Pursuer's Probation . Wherein , if he do cautiously libel , he will libel that which may take off the Objections , compe●ent in Law , against his Titles : as if they be holograph , or ancient and past Prescription ; that they are preserved by Minoritie , or Interruption , particularly libelling and proving the same . Otherwise the Lords may stick to give him Sentence : or if by inadvertency they do , the 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 Litiscon●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 Quan●●ties and Prices libelled . In which case , by the Act of Litisconte●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 Qu●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 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 Iusti● 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 ● 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 cogno●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 the just Deduction or Consequence , admitted by the Judge . This Presumption doth more easily admit contrary Probation : and therefore such Presumptions are said , to transfer the onus probandi ; that is to say , they prove sufficiently for the Adducer , unless the contrary be proven , in which case , presumptio cedit veritati , in comparison whereof it is said to be but veri similitudo , verisimilis veritas , or conjectura . And yet it is not necessary , that either of the two Alledgences of the Parties , must be true ; but that which ought to be , is presumed , albeit it be not certain : according to the Maxime of Law , quod inesse debet , inesse presumitur . In all Summons and Acts , as there is a Will , or Command of the Judge ; so there ought to be a Certification , certifying what the Judge will do , if his Command be not obeyed , as the sting in all Processes , without which they would be long of coming to an Issue . For if nothing could be done , but the charging , denouncing , and incarceration of the Party , ( if he were found , ) until he gave Obedience , or declaring him Fugitive , or denouncing him Rebel , or Outlaw for his Contumacy ; litle benefit would thence arise to the other Party , and the contumacious Party might long stand out . And therefore more expedite Certifications are invented , of which we have as many , as apposite , and as effectual as any Nation whatsoever . Of which we shall adduce the prime instances . The first and most general Certification is , That the Lords will proceed to do Justice . Whereupon when Defenders appear not , they do proceed to Litiscontestation , and do admit Probation , and give Sentence , as if the Defender did appear . The Romans had no such Certification , and therefore unless the Defender were compearing willingly , or by compulsion , they could do nothing , but ( in some Cases ) put the Pursuer in Possession . Neither can the English give any Sentence against a Partie absent : but if he compear not , they do no more , but give out an Outlawry against him , declaring that since he will not obey Law , he shall not have the benefit of Law , in any Case . As Judges in Criminal Causes in Scotland commonly do , if the Defender compear not , they declare them Fugitive , which is Out-law : whereby his Escheat falls . But our Civil Certification is more equal and apposite : seing thereby the Lords in contumacious Defenders absence , do the same that they would if they were present . The next general Certification is , either in Summons or Acts , against Parties cited to give their Oaths , with express certification , That if they compear not and depone , they shall be holden as confess`d : that is , as if they compeared and confessed that which is alledged against them . Which is a most usual Certification , and concludes more Processes than all the other . It is also very important , and will be hardly rescinded : and therefore it is not sustained , unless it be particularly expressed , and unless the Party be cited by a Messenger of Arms , and be personally apprehended , that so his contumacy may be palpable . The third ordinary Certification is , against Parties ( who have intented any Process , ) to insist , with Certification , That if they insist not they shall never be heard thereafter . Which is of great use ; for thereby Defenders put themselves to certainty , and are not obliged still to attend the motion of the Pursuer , who may readily wait his opportunity of the infancy , or evil condition of the Defender`s Heir , and insist against him when he is least able to defend himself ; and letting the Process sleep , may so continue it , were it never so long . In opposition whereof , either this Certification , or a Declarator of Right may be intented by the Defender , to determine the Cause , whilst he finds himself in a capacity . There is another Certification in the case , when the Lords by hearing any Debate , do before answer , ordain the Writs by which either Party will prove what they have alledged , to be produced ; with certification , That they shall not be heard thereupon thereafter : and that their Alledgence shall be holden as not proponed . And more generally , at the entry of several Causes , especially in the Competition of many ●arties , and many Rights , the Lords ordain all the Parties to produce such Writs as they have in the Cause , with certification , That they shall not be heard thereafter . But in regard the Terms of Production are not granted so frequently , and so large as in other Cases ; the Lords do extend the Certification no further , than as to such Writs as the Parties have in their hands , the time of ●he Certification . Whereupon they do sometimes ordain the Parties to depone , and if not , if any Party produce and alledge upon a Writ , not produced before the Certification was admitted ; if the Certification be alledged against the same , it will be rejected . But if the Producer offer to make faith , he had it not the time of the Certification , it will be admitted . Sometimes no particular Certification will be exprest , but the Act bear , With Certification , &c. And the effect thereof is , that the Lords do admit thereupon such Certification as is just , and ordinary in such Cases . But if there be no ordinary Certification in such Cases , the Act is ineffectual . As also other Acts wherein , through negligence , no Certification is exprest ; unless the fulfilling the Desire of the Act concern the Pursuer . In which case he will get no Process , till he fulfil the same : which is equivalent to Certification . In stead of Certification , the Law sometimes allows Protestation : which differeth from Certification in this , that the Certification which is exprest in the Summons , or Act , besides that which is not ordinary nor proper to be so insert , is sometimes admitted by way of Protestation . And albeit it be free for every Party to protest for what he pleaseth , yet only a few Protestations use to be admitted ; such as Protestations at the instance of Defenders , upon the short Copies of Suspensions or Summons : wherein albeit there be no Certification , That if the Pursuer compear not to insist the Defender shall be freed from the Instance ; yet the Defender`s Protestation , as being just and ordinary , is instantly admitted , as effectually as if there had been a Certification in the Summons , That if the Pursuer did not insist , he should fall from that Instance . Such is the Protestation lately introduced in favour of the Pursuer , whereby upon the large Copy of the Summons , if the Defender refuse to produce the Process , the Pursuer protests , That the Copy may be holden as a Principal , and that the same may be holden as instructed , and proven , and Decreet pronounced . Which Protestation the Lords admit , in respect of the Contumacy of the Defender's Advocate , who refuseth to produce the Pursuer`s Process . Such also is the Protestation of the Pursuer after Probation , at the Conclusion of the Cause , whereby when the Defender has produced his Writs , or Witnesses , conform to the Act of Litiscontestation , he protests , That he may be admitted to produce no more , and that the Cause may be holden as concluded : which Protestation the Ordinary admitteth , whereby the Cause is concluded ; and neither Party can use further Probation regularly . So the Lords will advise whether the points whereupon Litiscontestation was made , be proven , or not proven . In other Cases either Party may protest what they please : but their Protestation receives no present Answer . The greatest use it hath is , that it be not presumed those who protest , do acquiesce by their silence : nam qui silet consentire videtur . And therefore when one of the Parties makes any such Protestation , the other Party useth ordinarly to protest in the contrary : and there is no Answer given to either of their Protestations : but they use to be insert , unless they be clearly contrary to Law ; in which case they will not be suffered to be 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 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 Signe●● 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 Ca●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 unj●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 principal Cause , if it be given out when the Copy is first called . The Charger's Advocate , at the giving out of the Charge , writeth on the back thereof , the D●y that it was given out , and sets his name thereto : and is not obliged to receive the Suspension , unless the Suspender mark on the Process , That he hath seen and returned the same ; but may take out his Protestation , as if the Principal were not produced . According to the Date , of the Return of the Charge , the Suspension is inrolled : and when it comes to be discuss●d , the Cause being called , the Charger produceth the Copy marked by the Clerk , as aforesaid , and thereu●pon craveth a Protestation from the Ordinary , which he obtains , if the Suspender●s Advocate produce not . Yet sometimes , the Charger`s Advocate will hold the Copy for a Principal , and the Suspender will repete his Reasons of Suspension : which though they be not admittable upon a short Copy , in strict form , ( because all Reasons of Suspension , both principal and eked , ought to be set down in Writ , and given to the Charger to see ; ) yet frequently , the Charger will rather dispute the Cause , than take a Protestation , which is easily suspended again : and therefore will answer to the Reasons , as verbally repeted . But if the Suspender compear , and the Charger do not insist , he may produce the principal Suspension , and crave the Letters to be suspended ay and while the Charge be produced : which puts him in tuto , that no Protestation can be taken upon the Copy , till the Charge be produced . Yea , if the Suspender extract and produce the Charge , and refer his Reasons to the Lords ; they will advise the same : and if they find the Reasons relevant , and proven , will suspend the Letters simpliciter . In which case , the Decreet of Suspension is as other Decreets in absence ; and may be reduced upon a Summons of Reduction : wherein the Lords will reconsider the Reasons , and hear the Parties debate thereupon ; and may recall what they formerly did , albeit super eisdem deductis : which they cannot do in Decreets upon compearance . But when the Defender is absent , the Lords do not so accurately consider the Cause , seing there is a Remedy : and likewise because , albeit they find the Reasons relevant , as before ; the Party may elide the same by relevant Answers and Duplys . If the Charger compear , and also the Suspender , and the principal Suspension is produced ; then the Charger doth briefly repete his Charge , or Decreet suspended , and declares what he insists in . And if there be any thing general , he useth to give in a Condescendence in writ , at the beginning , to be seen with the Charge ; which therefore is called the special Charge . And if the Charge have in it many Members , he declares what Points he insists in primo loco : and if he do not , the Suspender may insist upon any Reason of Suspension he pleaseth , against any of the Points . The Suspender in repeting his Reason , should condescend by the number , what Reason it is ; and whether it be libelled or eked . For Suspenders may add or eke to their libelled Reasons , if they will. So that if the Reason they repete , be neither eked nor libelled , in strict form , it may be repelled : or if the eked Reason hath not been at first produced , and seen , with the Suspension , it ought not to be received . Yet many times the Ordinary will indulge that favour , and cause the Charger either answer it instantly , or take it up till a Day , to see : which he may do , without expunging of the Cause out of the Roll ; but may call the Cause again at the Day appointed . And if the Charger hath seen the Reason , may proceed . In like manner , Reasons of Suspension ought to be instantly verified by Writ , unless they be referred to the Partie`s Oath : in which case , the Charger's Procurators , to hasten the Process , will take a Day to produce the Charger to give his Oath . But if the Reason of Suspension be founded upon a Writ , which is not the Suspenders own Writ ; as when Cautioners suspend upon Discharges granted to the principal Debitor : the Suspender will get a Term to prove ; as he will , when the Reasons of Suspension consist in facto , and are to be proven by Witnesses . The first point of Debate in Suspensions is , upon the Relevancy , and Verification of the Reasons . The next point is , upon the Competency of the Reasons . For many Reasons are competent by way of Reduction , that are not competent by way of Suspension ; because Suspension stops the Execution of a Decreet already obtained : and therefore the Execution should not be delayed , except upon Reasons relevant , and a short Probation ; but the Execution ought to proceed . And if the Decreet whereupon Execution pass'd , be reduced ; all that hath been taken away by the Execution , will be recovered . So a Reason upon Minority and Laesion , is not receivable by way of Suspension , but by Reduction . Neither a Reason upon Inhibition , Interdiction , Iniquity , Nullity ; or upon any Clause irritant , not being declared ; ( albeit it bear to take effect without Declarator ) except in few Cases . If the Reason of Suspension be sustained , then the Charger propones the Answer to the Reason ; which is so termed , to difference it from Defenses proponed in ordinary Actions : because the Reason of Suspension is a Defense in the principal Cause , and the Answer is a Reply thereto . The Answer being proponed , is first debated as to the Relevancy , and Competency thereof : but it needs not be instantly verified , because the Charger may delay himself . Many things are not competent by way of Answer , which are relevant : as upon Interdictions , Inhibitions , Minority , and most Nullities , and Clauses irritant , and Failzies ; which require Reduction . But if the Suspender have a Reduction , and will hold the Production thereof satisfied ; he may repete the Reasons by way of Answer , if coincident with his Reasons of Suspension . If the Answer be sustained , the Suspender may propone his Reply , which doth not consist in any Alledgence against the Relevancy or Competency of the Answer ; but in some distinct Writ , Clause , or Fact , eliding the Answer , in the same way as the Answer did elide the Reason : and so the Charger insists in his Duply , and the Suspender may insist in his Triply , and the Charger in his Quadruply , &c. Albeit the Suspender be obliged to verifie his Reasons of Suspension instantly , yet he needs not instruct his Reply : because that ariseth upon the Charger's Answer , and he will get a Term to instruct the same , or his Quadruply . Some Reasons of Suspension , do not conclude to suspend the Letters simpliciter , and so take away the Decreet suspended for ever , but to suspend the same for a time ; and then the Decreet of Suspension bears , The Lords suspend the Letters a● and while , &c. Otherwise ( when the Reasons conclude so , and are sustained ) The Lords suspend the Letters simpliciter . If in discussing the Suspension , there be nothing admitted to be proven in the future , then the De●reet of Suspension follows : which is the 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 partic●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 discuss●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 it be more ordinary , and regular , that the Defender should produce what he can upon his hazard , and Certification should be granted against the rest . So that all the Writs whereby the Defender can defend himself , being in the field , the Dispute may be clear , and intire : which otherwise may be drawn out into a very long endurance . Seing the Defender , if it be found that he hath not produced sufficiently , may still drop in one single Writ , and renew the Debate thereupon , and alledge he hath now produced sufficiently , and make as many Disputes as he hath single Writs , contrary to the intent of this kind of Process , which is to force Defenders to produce all they have , before they begin to Dispute . But the Defender will not be heard after the first additional Production , before Certification : but if what he then produceth , doth unquestionably elide the Pursuers Production , he will be assolzied . But if the matter remain any wayes dubious● the Lords will rather observe the ordinary Form , by concluding the Production first , and then falling upon the Reasons of Reduction . Before the Act of REGULATION there were two Terms allowed in Reductions and four in Improbations for production of the Writs called for . After the first Term of Production was come , and the Act extracted , the Pursuer's Advocats caused the Clerk call thereupon , to satisfie the desire of the Act , and he upon calling it , assigned a Day for that purpose : and after that called the second time , and assigned some Diets more , with Certification . But he could go no further , till the Act was called by the Ordinary , who assigned a second Term , whereupon a second Act was extracted . The Ordinary upon calling the second Act in the same manner as the first , was accustomed to assign a third Term , which being come , and a third Act extracted and called as aforesaid , if the matter were of consequence , and concerned the Right of many Lands , and that the Defender would take a fourth Term to close the Production of his own consent , the Ordinary did give him it : otherwise he would grant Certification contra non producta conditionally , That what the Defender produced betwixt and such a day should be received . Which favour was only granted least the Parties and Advocats should be surprised . But since the Act of Regulation , there are only two Terms to produce in Improbations , and one in Reductions : which must be assigned by the Ordinary . Reductions , unless when they are coincident with Suspensions , are to be discuss'd as to the Production in the Outer-House : but because of their importance , they are priviledged only to be discuss`d in the Inner-House , as to the Reasons of Reduction , unless the Lords upon Supplication grant Warrant to the Ordinary to hear and discuss the same . And therefore when the Production is closed , and the Certification concluded , either by the Pursers holding the Production satisfied with what is produced , or by extracting the Certification contra non producta ; the Cause is again called . but the Defender may propone his Defenses against the Production , which were reserved in initio litis , before Certification be extracted , or if he insist not therein , when the Pursuer repetes his Reasons of Reduction , the Defender will refer the same to the Lords . And unless there be a Warrant to hear the Cause extra , the Ordinary will only make a Great Avisandum to both Parties to be ready , to dispute the Reasons when the Lords call : and in the mean time , ordain the Defender to see his own Production in the Clerks hands , as he will be served . But if there be a Warrant to hear the Cause , he will give the Defender some time to revise his own Production in the Clerks hands , and be ready at the next Calling . This is called a Great Avisandum in opposition to the ordinary Avisandum , whereby the Ordinary upon any dubious Point returns ●his Answer to the Advocats , That he will give the Lords Answer , that he will advise with the Lords . The main Defense competent in Reduction besides those which are common to all other Actions , upon the Executions and Order , are first , upon the Pursuers Title and Production , That it cannot give him any interest to reduce , or improve any of the Writs called for . And if his interest be sustained , then the Defense runs upon registrat Writs . If they be registrat in the Books of Council and Session , ●he Defender alledgeth , No Certification , because he condescends upon the time of the Registration , whereby the Pursuer is obliged to search the Register , and to insist against the Clerks to produce the principal Writs r●gistrat . But if they be registrat in inferior Courts , Certification will be granted , unless the Clerk of the Court be called . But if he be called , his not compearing , or not producing , is upon the hazard of the Defender : and the condescending on the Date of the Registration , will not be sufficient in that Case ; but the Defender upon his own peril , must search for the principal , and produce them . But if the Writs alledged registrat in the Books of Session , be not found therein , according to the Condescendence ; Certification will be admitted against the same . There is also an ordinary Defense against the Production of Apprisings , That the Charter and Seasin following thereupon , are produced ; and that before the year 1624. Apprisings were left at the Signet , as Warrants thereof : so that no Certification can be granted against such . Neither will Certification be granted against the Executions of Warnings , or other Executions of Summons , which are small inconsiderable Papers , easely lost ) if Reduction or Improbation be intented long after obtaining of Decreets . But the Registration of Seasins will not stop Certifications against them , because the principal Seasin is not left at the Register . The like holds in Reversions , Assignations and Fikes the●eto , and in Writs registrat during the Vsurpation , when the principals were given back to those that registrat them . But the chief Debate anent Production is , about the general Clause , whereby it is craved that the Defender may produce all Writs and Evidents made and granted by the Pursuer`s Predecessors and Authors of , and concerning the Lands and Rights in question , As to which it is alledges , No Certification against Writs made by the Pursuer , and his Authors , unless his Right and Progress from these Authors be produced : which is sustained , and the Certi●ication so qualified . Albeit it be sometim●s debated that the Pursuer being Infeft , and in Possession of the Lands ; especially if he can alledge , That he hath produced a Progress of fourty y●ars time , which by the Act of Prescription 1617. if clad with Possession uninterrupted during that time , maketh an absolute Right , against all deadly ; it seems to give interest to all for , and reduce the opposit Rights made by whomsoever , whether the Pursuer show that he hath Right from the Authors thereof , or not : especially since the Act of Parliament 1617. It useth also to be alledged , No Certifi●ation against Writs made to the Defenders , and their Authors , unlefs these Authors , or some representing them , were called : which the Lords will sustain , because no man is obliged to dispute his Author 's Right , unless he be called . But it will s●ffice to call his apparent Heir : and the Rights belonging to the Defenders may be produced , al●eit they be not actually entered Heirs , or infest . And therefore the general Clause is sustained as to All Writs and Rights granted to the Defenders and their Predecessors to whom they may succeed jure sanguinis , or against All Writs granted in favours of their Authors , and in favours of these that their ●uthors might r●present jure sanguinis , if the Authors , or any that do , or might represent them be called . But Certification will not be admitted against Writs granted by the Pursuer's Predecessors , except such Predecessors to whom he is actually served Heir , immediately , or by progress . It useth also to be alledged , that no Certification can be granted against the Writs called for , but such only against which a Reason is libelled : which is taken off when improbation is included . Because that Reason , That all the Writs called for , are forged false and fenzied , reacheth all : and where Improbation is not libelled , the common Alledgence upon Nullities , or the like , useth to be insert . And if a Reason be libelled that may reach them , the Pursuer is not obliged to dispute , Whether the Reason be relevant ot not . And therefore as the Nullities upon the Subscription of original Rights , so generally Nullities of registrat Writs are libelled , as being Acts or Decreets extracted contrary to the Warrant of the Judge . There uses also incident Diligences to be raised , and produced to stop Certification . Which incident Diligences are Summons of Exhibition against the Havers of any of the Writs called for ; especially against the Defenders Superiors , Authors , and others . For albeit the Superior , and other Authors might be called ; yet if they compear not , the Defenders compearing ought not to lose their Rights . And therefore Law allows them time to use Diligence for recovering of their Rights , not only during the Terms of Produ●tion , but also ay and while the Incident be discuss'd . But the Incident will seldom be sustained , for recovering the Defenders own Writs : because without consideration of the Dependence of the Process , he had sufficient interest to pursue the Exhibition , and Delivery of these ; unless they were common Writs , of the Defender's Lands and Rights , and of other Lands and Rights , the custody whereof did not belong to the Defender , by the agreement of Parties , or because he hath the lesser Interest : or unless the Defender be , or hath been minor , and the Writs in the hands of his Tutors , or Curators . So as it is the Defenders fault that he hath not his own Writs : and therefore cannot thereby delay the Pursuer , but must content himself with the ordinary Terms of Production . If the Terms of Compearance in the Incident be not past before the Term of production in Reductions , or the first Term in Improbations ; it will not be sustained , nor stop the course of the Action . But if the Incident be raised and execute debito tempore , and all Solemnities and Formalities exact therein , it will be sufficient : but in the mean time the ordinary Terms will proceed , not only for the Writs for which the Incident is sustained , but specially for all other Writs called for . For it were against reason , that after the Incident is ended , any Terms of Production as to these Writs should then be demanded . In discussing the Reasons of Red●ction there is litle singular from ordinary A●●ions . For the Reasons are in effect the Libel , and as in any particular Libels concluding either against divers W●●●s , or against the same Right super diuer●●s ●ed●●● . And therefore the Defender's Ex●cep●ions against the Reasons● are not designed an Answer as in a Suspension , but ● Defense whereunto the Pursuer replys , the Defender duplys , &c. until the Points be discuss'd and Litiscontestation be made . The Pursuer may insist against any Writ he pleaseth , primo loco : and upon any Reason may make Litiscontestation , and may obtain Decreet ; and thereafter may insist agai●st the rest of the Rights . But if he make no preference , the Defender may propone his Defenses against any of the Reasons of Reduction , he pleaseth to choise first . Upon the discussing of the Reasons of Reduction , Litis●on●●station is never made for proving any thing by Writ , as the progress of any Right : because the Certification contra non producta , cuts off all other Writs , but such as are produced . So that whatever can be alledged upon Writ is instantly verified . Yet Litiscontestation may be made for proving Points of Fact , as the proving of Minority , Interruption by possession , Deeds of homologation , and offers , which may be proven by Oath of Party , or by Witnesses . Thus Litiscontes●ation is cleared in all kinds of Processes : and it is the main Point in all of them , fixing the same , and ordering , not only the ●atter to be proven , but the manner and Terms assigned for Probation . After Acts of Litiscontestation are extracted , both Parties are in tuto till the Term pass : if they do take out Diligences for proving the Points admitted to their Probation ; whether it be for exhibition of Writ , for proving of Points found probable by Writ , or for citing the Parties to compear and depo●e upon Points referred to their Oaths , with Certification to be holden as co●fess●d , if they compear not . For albeit in discussing of Suspensions or Advocations● Chargers do not put Suspenders , or Raisers of Advocation , to ●ake Terms to cite them , which would give them delay , but their Advocat● do take the shortest Terms they can , to produce them to depone ; yet in other Cases , when any P●int is referred to a Partie's Oath , he must be cited by ● Messenger at Arms , personally apprehended , with Certification to be holden as ●onfest . And if the Point to be proven be by Witnesses , Diligences are granted , to compell the Witnesses to compear . For which there were many Terms granted , and more to the pursuer ( who wa● not presumed to delay himself ) than to the Defender ; which were in the way of Letters of four Forms● the first being only a Citation to compear and bear Witness , the second a Citation with certification that Letters of Horning would be direct , the third a Horning , the fourth a Caption● But now these being long out of use in any Case , there are only two Diligences granted against Witnesses , either for the Pursuer or the Defender ; the first by Horning , the second by Caption . The Diligence for production of Writs to prove , are either ordinary or incident . Ordinary Diligences are competent to Part●es , even for recovering of their own Writs● but incident Diligences are for recovering of Writs belonging to others● at least are in the hands of T●to●● a●d Curators . For when Parties are to prove by other ●ens Writs they have no Title● 〈…〉 them exhibit the same● but incident●● as they may be made use of in ●●oces●●● . And therefore they are called i●●ident Diligen●es , being in the tenor of an Exhibition of Writs for in●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 qualifica●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 determine● 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 Pu●suers put to depone de calum●ia upon the whole Libel , before it be discuss●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 pr●●●● pr●●● at ●●rt . For by our Law , Witnesses are not ad●itted to prove matters of importance , where Writ ●●eth● and may be interpo●●d to secure again●t ●erjury , and as a penalty upon the negligence of these who might have ma●e ●fe of Write , and did not . As the Roman● did exclude naked Pactions , without Stipulation ; so Witnesses cannot prove the lending or delivery of Mony , above an hundred pou●● 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 ● and the Reply be Recompensation or discharge of that Debt , whereupon the Compensation is called ; if the Pursuer prove the Debt , he may crave the Term to be circumduced against the Defender for not proving the Debt , whereupon he craves Compensation , albeit the Pursuer prove not the Reply . In this case also the Defender may crave the Term to be circumduced against the Pursuer , for not proving of his Libel , albeit the Defender prove not his Defense . But if the Pursuer adduce Probation , or use Diligence for proving of the Libel , the Defender cannot crave the Term to be circumduced against the Pursuer , for not proving his Reply , till the Defender prove his own Defense . The like holds in the Duply , or in any other Point . The Term may be circumduced , and yet no Decreet pronounced . As if the Pursuer have adduced probation of his Libel , Quantities , and Prices not acknowledged by the Defense , and renounced Probations , he may crave the Term to be circumduced against the Defender ; to the effect the Cause may be concluded and advised . In Circumduction of the Term , or granting of Certifications , the Ordinary useth to do it conditionally , That what shall be produced betwixt and such a time , shall be received : ( especially if the Defender's Advocat declare , that the Writs called for , are not at present in his power , but that he expects the same ) the time of which Qualification is in the discretion of the Ordinary , who will give longer time , if any impediment or hinderance appear . Item if the Point be to be proven by Oath of Party , and at calling of the Act , the Advocat for the Party who is to give his Oath , produce Testificats of his Sickness or Infirmity , or other necessary obstacle or impediment : and therefore craves a further Term , or Commission , which will be granted , if the Testimony be upon Conscience from known Persons ; especially Ministers , and Physitians . Especially if that obstacle was not known to the Partie's Advocat , when Litiscontestation was made , but emergent , and new come to Knowledge . And though it be not sustained , yet if there be any probability therein , the Term will be circumduced conditionally to such a Time , that the Party holden as confest may compear and depone . And these conditional Circumductions the Lords , upon Supplication , do oftimes prorogat , as they see Cause . In posterior Diligences , there is only Warrant granted to cite such Witnesses as were in the former Diligence , unless there be a Warrant for it by the Lords , upon the emergency of the notice of further Witnesses , or the Death , or Removal of others before cited : and regularly no more than twenty four Witnesses can be adduced for the same Points . Witnesses will be received upon the very Day of compearance assigned for them : and they are brought judicially to the Bar , and the Parties being also called to the Bar , their Oaths are taken by the Ordinary , who may hear and discuss the Objections made against them , or may refer the Objections till the afternoon , to be received by those who receive and examine the Witnesses . Who , if any Debate arise upon any Objection , will ordain the Witnesses to attend the next Day , and in the mean time will advise with the Lords thereane●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 ●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 Adducer● 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 agai●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 Inter●st in the Cause excludes Witnesses , not only if they may tine or win in the Cause , as being sharers therein ; sed si ●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 Witn●s●es , whereby sometimes VVitnesses who by their Circumstances , appear to be ne●essary VVitness●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 al●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 necessary , seing men use not to be present at that time . Sometimes also the Lords will admit VVitnesses cum nota : and generally , when VVitnesses are examined ex nobili officio , all VVitnesses whatsoever are admitted , and the Lords consider how far to make use of their Testimonies , at the advising thereof . The Probation being closed , the Cause comes to be concluded . VVhich is two wayes : for either the Pursuer renounceth Probation , and refers the Cause to the Lords ; or otherwise , if the Defender have adduced Probation , and have no more Terms current , or competent , then the Pursuer doth protest , That the Cause may be holden as Concluded , which also will be admitted . At the conclusion of the Cause , when VVrits are produced , the Producer is not obliged to dispute that the VVrits produced will prove , or not ; yet it must appear , that the VVrits have contingency with the Points to be proven : for the production of any VVrits , is not sufficient , and will not stop the Circumduction of the Term ; but notwithstanding thereof , if they make nothing to the Points to be proven , the Term will be circumduced . VVhen Commissions are granted to examine VVitnesses in the Countrey , the Term will be circumduced if the Report be not produced . And if it be produced , but contain no Testimony of VVitnesses , but the Procedure of the Commissioners ; there the Dispute arises , whether he who was to report the Commission , or the other Party have failed or not : for if they have failed , the Term will be circumduced . And therefore they alledge these Reasons to purge their failzies . 1. That the Commissioners , ( one or more ) necessary to have proceeded , kept not the Dyet , or that having kept it , they refused to examine the VVitnesses in respect of the other Parties not compearance , upon any Question arising , whether the Witnesses were receivable , yea or not : wherein the Commissioners are to follow the common Rules o● Exceptions against Witnesses as aforesaid : and if any extraordinary Objections be alledged , they may mention the Objections , and receive the Witnesses ; but they may not reject the Witnesses , but ought to leave it to the Lords consideration , what use they will make of the Testimony . And therefore if they reject the Witnesses without the ordinary Exceptions , the Party grieved will alledge , That the Commission ought to be renewed to them , with order to receive these Witneses which they have refused ; or to other Commissioners ; or that the Witnesses ought to be called before the Lords . Or if the Commissioners refuse to examine the Witnesses , upon the Interrogators proposed , if the Lords find these Interrogators pertinent , they will grant a Commission and ordain the Witnesses to be examined thereupon . Or if any accident hath befallen the Party , who was the Adducer of the Witnesses , or other considerations occur , moving the Lords , they will either grant Commission de novo , or otherwise a Term to adduce Witnesses before themselves . When any Party craves Commission to adduce Witnesses in the Countrey , it is upon their peril of moving the Witnesses to appear . For in that case they are not to expect Terms , and several Diligences , as if they adduced them before the Lords : the very demanding of a Commission importing a passing from the ordinary Terms , if the same be granted . Causes being concluded in manner foresaid , there ought to be an Act extracted thereupon . After which it comes to be advised . The Saturday ordinarly is spent in advising concluded Causes : and either Party may protest to be heard , at the advising of the Cause , as they think fit . But whether Parties do protest or not , the Lords doth always call them , and hear them . If the Probation be by Writ , or by Oath , containing any Quality . But if the Oath be simple and plain , the Lords will advise without calling the Parties . Or if the Probation be wholly by Witnesses , the Testimonies are not published unto the Parties : and therefore the Lords advise the same with closs Doors . If the Probation be by Writ they are heard , Whether the same prove or prove not , and the whole Writ , or the Clauses in question , are read in audience of the Parties . In like manner Objections are competent against Nullities of the Law , which are visible in the Writs adduced : as want of Witnesses , or Writer , or Witnesses not designed , or as vitiat in substantialibus . Yea not only Objections are competent , but Exceptions that may elide the Writ produced , are also competent ; especially if in the Act there be a Reservation to alledge a contra producenda . And if the Alledgence doth elide the Writ produced , it should be such , as could not have been known the time of the Litiscontestation . But the Alledgence ought to be instantly verified , except in singular Cases , in which there will be a new Probation admitted , which makes an exception from the common Rule , That there cannot be two Litiscontestations in the same Cause . There are also frequent Debates upon qualified Oaths , Whether the quality adjected be competent , or not . Wherein this a general Rule , That whatsoever the Alledgence referred to Oath , relates to any Writ , Fact , or Deed wherein the Alledger pitches upon what makes for him , admitting the other Points and Circumstances , when it is proper for the Deponent to express the whole tenor of the Writ , Bargain , Promise , or Fact , as well that makes against him as for him . And these are called intrinsick Qualities : because the Qualifications or Conditions are inherent in the same Fact , or Right . As if a Party be pursued on an alledged Bargain for delivery of Victual , or Ware , at the prices libelled ; if he depone , It was true the Bargain was made , but with this Condition , if the Mony was not delivered against such a time , the Bargain should be void ; And that it was not delivered , nor offered at that time ; this is a competent Quality . In like manner , if one be pursued for a Debt , or for a Promise made , or Goods delivered ; as the libel , if it be referred to Oath , will not be relevant , except the Subsumption bear , That the same is resting , owing , or unperformed , so the Deponent doth properly and plainly depone , both upon the truth of the Debt , Promise , or Receipt , and also that the Debt is not resting , but was payed and received , either by the other Party himself , or others by his direction , and warrand . Nor will he be obliged to produce or prove these : seing his Obligation is not proven by Writ , or Witnesses . In which last cases , the Presumption of Not-payment , and Not-performance being negative , transfers the onus probandi : and therefore Payment or Performance must be proven . But there are other Qualities extrinsick , and unproper , which will not be admitted by way of Quality , to be proven by the Deponent's own Oath : but ought to have been proponed and proven by Exception . As if a Party being pursued for a Debt , acknowledge the same , but depones● That the Pursuer was owing him as much : this is extrinsick , and resolves in an Exception of Compensation . And therefore will not be regarded in the Oath , but the Defender will be decerned , reserving 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 Proponer●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 ca●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 , ●ill they advise the Cause de novo . After all that the Lords ●ind necessary for a finall Sentence , is done and they have advised the Cause , they pronounce Decreet cond●●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 ●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 e●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 nov●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 Improb●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 Sequestra●ion o● R●-ex●mination of Witnesses : and many such Desires as neither came within the comp●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 Ac●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 negl●cted any Point , they may represent it to the Lords , by ●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 , b●t urge that he may have the Lords Answer upon the Bill ; the Ordinary upon an Am●undae , will not r●●use it . Reprobators also , may be used during the Dependence of Process , for rejecting of Wi●n●s●es , or their Tes●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 Witn●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 raise , and insist in the same , before Decreet be extracted : which is the most p●●per way of Reprobators , and whereupon the Lords will supersede to advi●● the Testimonies ( if they see probable evidence of the inhability of the Wi●nesses ) till the Reprobation be first advised . But if Parties neither raised Summons before the examination of the VVitnesses , nor do then protest ; they are presumed to acquiesce in the hability of the VVi●nesses , unless the VVitnes●es be adduced in absence . But even after Sentence , Reprobators are Competent , though far less favourable , ( and after a considerable time ought not to be admitted ; ) because if they be insisted in , sho●tly after Sentence , the Adducer of the VVitnesses , if any of their Testimonies should come to be rejected upon inhability , might adduce more VVitnesses for the same Point , unless by the Probation he were found accessory , to the Corruption of the VVitnesses . Reprobators cannot proceed upon pretence of the falshood of the Testimony , but upon the incapacity , or inhability of that Party to be witness in that Cause . VVhich will not be excluded , because the VVitnesses have deponed , either generally , or particularly , concerning their hability ; whether upon the motion of the Judge , who ordinarly purgeth all VVitnesses of partial Counsel , or upon the Alledgence of the Party referring any Objection to their Oath . The reason of the difference is , because the Testimony in the Cause could not prove , unless there were other VVitnesses concurring : but as to the hability , there is no such concourse , every VVitness Deponing for himself . But if the ground of Reprobature be referred to the Oath of the Adducer of the VVitnesses , it will be most favourable , and sustained ; except the Adducer be alledged author of , or accessory to the Corrupti●● ; which could not only be criminal , but capital : and therefore he is not obliged to depone thereanent , after Sentence , when the Corruption hath become effectual . The main ground of Reprobators , is the Corruption , or Prevarication of the VVitnesses . For if before the Testimony quarrelled , they have sworn inconsistently therewith , it will canvel the Testimony upon Prevarication , and infer Infamy ; but no Oath emitted thereafter , will weaken the former Testimony . Especially post sententiam qua jus est acquisitum parti . Albeit in Re-examinations , recently taken , if there be Prevarication , and Inconsistency ; the Lords proprio motu will reject the Testimony . Giving or promising good Deed , besides the ordinary Expenses , and prompting , and instructing VVitnesses how to depone , or threatning them if they do not so , or so , depone ; are pregnant grounds of Corruption and Reprobature . Civing partial Counsel by instigating the Parties to the Plea , and promising to depone for him likewise a relevant Reason of Reprobature . And likewise the Infamy of the Witnesses . as being before condemned for an atrocious Crime , or declared infamous . And likewise interest in the Cause : whereby the Witnesses may have a considerable Gain or Loss . But there be many other Exceptions which might exclude a Witness before Examination , that will not be sustained by way of Reprobature after : in which there is a Latitude in arbitrio judicis . As if the Witness were Cousin German to the Adducer , or were not accompted a vertuous Person , or had given his opinion to the Party how to proceed , or been present at Consultations . Or if the Witness , before he were adduced , had declared to the Par●y what he would depone , without any Pro●ise , or Assurance , so to depone ; or instigating the Plea thereby . For after Process are intented , though Persons express what they know in the matter , it will will not amount to proditio testimonij . When Reprobators are sustained , to be proven by Witnesses , they ought to be condescended upon , and be above all exception . Otherwise Reprobators may get run round , and leave Causes to a perpetual incertainty . Upon the Decreets of Session , all manner os Executorials do proceed in course , by Letters under the Signet . As for arresting the moveable Sums , or Goods to be made forthcoming for satisfying the Decreet : which cannot be Loused upon Caution , except in singular Cases . Inhibition , hindering the Party decerned against , to dilapidat his Lands or Heritage . Horning , for charging him to make payment , and for denouncing him Rebel if he fail . Poinding , for distraining of his moveable Goods . Apprising , or Adjudication of his Lands and heritable Rights in satisfaction . And Caption for incarcerating the person of the Party decerned , if being denouned to the Horn , he have not performed . All which Executorials may proceed jointly or severally , except only , that if the Creditor possess by vertue of Apprising or Adjudication , he cannot detain the Debitor in Prison . But this Imprisonment , as its last Remedy , admits of Liberation super cessione bonorum , proceeding upon Humanity , and Mercy . For albeit many Nations do allow the selling , or using the Debitor as a Slave ; yet our Incarceration is designed but to compell him to do all things , in his power , to satisfie the Debt . And therefore when he dispones all that he hath , heritable , or moveable , to his Creditors , and delivers the same and the Evidents thereof ; he is set at Liberty , and is ●ecure against all Creditors whom he hath cited for that purpose , as to his personal Freedom . Yet without prejudice to them , to use real Execution against any Goods that he shall thereafter acquire . And this Decreet doth no longer protect him , then he wears for his outmost Garment , the Habit appointed by the Lords for Bankrupts , in which he must come out of Prison , unless this be dispensed with upon special consideration , of the manner how he broke , if it was without fraud or prodigality , ( as in the case of Merchants ) if it were by Shipwrack , or Insolvency of Debitors , or by fire , Robbery , or other accident . Against this cessio bonorum , there are only two Defenses accustomed : the one is , That the Bankrupt hath dilapidat some part of his Estate , since his Incarceration , further then his necessary Aliment . The other , if the Creditors offer to Aliment him in Prison : which can be but a dilator Defense , till they may have time to discover what latent Rights ha ●ath , or what fraudulent Rights he hath made , before or after his Incarceration . And is with express Condition , that they pay him for his Aliment , so much as shall be modified weekly , and if they faill one Week , he will be se● at Liberty . FINIS .