Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XII.

Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.

Laird of Bargeny
v.
-

Date: 15 February 1575
Case No. No 233.

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The Laird of Bargeny pursued —— for spoliation of certain goods. The defender proponed a good peremptory exception; and because no day was assigned or taken to prove the said exception, the pursuer would have passed from that instance, but the defender alleged he should have absolvitor, he proving the peremptory; which allegeance of the defender, the Lords found relevant, and repelled the pursuer's allegeance; and decerned, that from the time litiscontestation was made, that is, when the defender proponed a peremptory exception, and the same referred to his probation by interlocutor, that the pursuer might not renounce the instance, nor gang frae the summons as is libelled, albeit the defender had taken no time to prove his exception, but absolvitor should be given therefrom, the defender proving the exception, or else the pursuer should pass from the whole cause.

Fol. Dic. v. 2. p. 196. Colvil, MS. p. 252.