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.

Macbrair of Netherwood
v.
John Robertson and James Vere

Date: 18 November 1737
Case No. No 293.

A pursuer cannot recur to the defender's oath, after having made his election, and examined witnesses.

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Netherwood brought a process against Robertson, &c. on several acts of Parliament, for fishing in forbidden times, which he offered to prove by their oaths,

To this it was objected; That the acts being penal, they could not be obliged to depone.

Answered for the pursuer; That these statutes were only penal as to the third attachment or crime, but that this being the first, he restricted his action to the pecuniary mulcts and damages therein enacted for the first fault. With this debate, avisandum was made; after which, Netherwood offered to prove his libel, prout de jure; whereupon, before answer, an act and commission was granted, in consequence whereof several witnesses were adduced, but upon finding the proof not sufficient, the pursuer thereafter referred his libel to the defenders' oaths. To which they objected, That the same was not now competent, seeing, by the extracted act, the pursuer had betaken himself to a proof by witnesses, and accordingly had led the same; which must hold more particularly in this case, as the reference to oath at first was strongly opposed, and avisandum made with the debate thereon.

Answered; The probation prout de jure, being before answer, and including all manner of probation the pursuer thought fit to make use of, can no ways debar him from the defenders' oaths.

The Lords found, that the pursuer having made his election, and examined witnesses, he cannot now recur to the oath of party.

C. Home, No 75. p. 126.