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.

Hamilton of Kinkel
v.
Aiton of Kinadie

Date: 15 December 1671
Case No. No 272.

After proponing peremptors, the defender may not deny the passive titles; but before extracting the act, he may pass from his peremptors.

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Hamilton of Kinkel having pursued Aiton of Kinadie, as heir to his father, to fulfil a minute anent the disposition of certain lands. Kinadie compeared and alledged prescription, whereunto interruption being replied, he insisted no further in that defence; he did also allege, that the pursuer, or his author, was denuded, which was repelled as jus tertit, at last he alleged that the minute was fulfilled;

Which was found relevant; but thereafter he desired, before extracting of the act, that he might be admitted to deny the passive titles.

The pursuer answered, That after proponing of peremptors he might not deny the passive titles, it being only proper to a person who represents to make litiscontestation upon peremptory defences. Likewise, the pursuer's oath was taken upon the performance, and so he could not resile from that peremptory. It was answered, That it was only an oath of calumny, and no act as yet extracted.

The Lords found that the pursuer was not obliged to prove the passive titles if the defender adhered to his peremptory; but they allowed him to pass therefrom, and admit the libel and passive titles to the pursuer's probation.

Fol. Dic. v. 2. 199. Stair, v. 2. p. 26.