Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Tenants of N v. Magistrates of Selkirk
Date: 11 February 1541 Case No. No 226.
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Litiscontestatioun is not maid nor inducit be proponing of ony dilatour exceptioun, nor be interloquutour gevin be the Judge; bot the samin is understuid to be maid in ony actioun or cause, efter the proponing of ane peremptour exceptioun, or quhen the summoundis, or ony part thairof, or ane peremptour exceptioun or allegeance is admittit be the Judge to the persewar's or defendar's probatioun.
Balfour, [1itiscontestation.) No 1. p. 342.
*** The like was found in the case of —— against the Heirs of Inverugie, 20th May 1542. Balfour, eodem loco.
*** This case is reported by Sinclair, MS.
In the cause of spuilzie intented by certain poor tenants of —— against the Provost and Community of Selkrik, as I remember, touching certain peats and fuel casting, the said tenants' procurator, Mr James M'Gill, failed in the libelling of the summons; and in the conclusion thereof, asked the said tenants to be decerned to restore the said peats, when he should have sent and asked the persons libelled to be decerned, and for this fault of the summons, Mr Andrew Blackstone, procurator for the other party asked absolvitor from the sentence sought by the summons causante illa ineptitudine. The said M'Gill answered. That he would have his words, ‘the said tenants’ pro deleto, and so his summons was yet of perfect sentence, and the conclusion thereof, and desiring them, or any of them, to be decerned to have done wrong, and said, that the word ‘them’ referred to the persons libelled sufficiently. The Lords found by interlocutor, That the said Mr James M'Gill might do the same, et in hoc corrigere libellum suum habendo illa verba pro deleta, because of the practicks and law, usque ad litiscontestafionem libellus potest emendari modo predicto, and also, lis coram dominis concilli per propositionem dilatoriam, et interlocuturas desuper latas, non induciturnsed tunc commiesa est ad probationem, et terminum statutum ad probandum, which was not done yet in this cause; and also, in this cause, the Lords mended the libel, and shew the same to the said Mr James M'Gill, and thereafter, that the said Mr Andrew had proponed exceptionem hanc inepti libelli, and asked therefore absolvitor for his client.
