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.

Walwood
v.
Walwood

Date: 22 Jnne 1678
Case No. No 278.

Found in conformity to Auchmoutie against Main, No 237. p. 32126.

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In a process betwixt Walwood and Walwood, the defender having proponed a defence, which being remitted to his probation prout de jure, and a term assigned for that effect, which being past, the pursuer craved the term to be circumduced. The defender alleged, The term could not be circumduced, because he was content to refer his defence to the pursuer's oath. It was answered, That the pursuer was neither present, nor cited to give his oath, so that no diligence being done, the term ought to be circumduced, otherwise this would prove an ordinary delay in processes, wherein any point were to be proved prout de jure, for the defender would ever procure delay, by letting the term pass, and then offer to prove by the pursuer's oath.

The Lords found, That in probations prout de jure, the party who was to prove, might cite the other party to depone, and yet might resile from the oath, and use any other probation ready at the term, by writ or witnesses, and might cite the other party, if he were present, apud acta, or if he were present the time that the act were called, might require his oath, being an instant verification, but otherwise there could not be a new term assigned to take the pursuer's oath.

Fol. Dic. v. 2. p. 200. Stair, v. 2. p. 624. *** Fountainhall reports this case:

The Lords in a case betwixt Walwood and Walwood, declared, by an act where a pursuer is to prove his libel, or reply, prout de jure, and when the term is circumducing against him for not proving thereof, and then he offers to refer it to the defender's oath, that they would not oblige the defender to swear thereon, unless he were present within the town of Edinburgh, because if he was absent, it made two litiscontations in one cause. It may be doubted, if the same should be where the defender so refers his allegeances to the pursuer's oath, who is ever presumed to be present and ready to insist, whereas the defender, by the Emporer Justinian's laws is called ϕινγων (fugiens.) I think both of them ought to elect their manner of probation at the time of the act. What if a party refer any allegeance or exception to the oath of the other party, whether pursuer or defender, and when he comes to depone, he resiles, and offers to prove by witnesses; that makes two litiscontestations, and yet is permitted; only I think the party's expenses should be paid to him by the resile.

Fountainhall, v. 1. p. 5.