The Lords refused to allow a party to propone an exception rei judicatę after litiscontestation.
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The Lady Essilmonth, sometime Countess of Errol, having warned certain tenants to flit and remove from certain lands pertaining to her in liferent, they excepted, That she had given a back-bond to her husband; that although she was infeft in the said lands in liferent, yet if she, after his decease, intromitted with any of his goods, she should renounce that infeftment, and it should be null. And they offered to prove, that she had intromitted with 1000 merks worth of his gear. This exception being admitted to probation, and in termino probatorio, witnesses being produced, her advocates alleged, That no process should be received, because the thing to be proved was her intromission with her husband's goods and gear, which was taken away by the testament lawfully confirmed, wherein there rested no free gear but only L. 6. Likeas also she being charged by this Earl of Errol before the Commissary of St Andrews, to make count and reckoning of her husband's gear, she was exonered and discharged of all intromission therewith, except only L. 6. And so two judicial sentences standing, given by the said Commissary, obstabat perpetua rei judicatæ exceptio, and so the witnesses could not be received. Answered, The party could not be heard to propone that, post statutum terminum probationis, et litem contestatam, as is the ordinary practick. Replied, The exception made was exceptio rei judicatæ; et dicuntur hæ exceptiones rei judicatæ, jurisjurandi, et transactionis, exceptiones perpetuæ; quæ in quacunq; litis parte proponi possunt, tam ante quam post litem contestatam: Quia res judicata semper pro veritate accipitur, juxta, L. Præscriptionem, C. De Except. For otherwise there might be two contrary sentences of one thing, quod semper evitandum est. The Lords would not admit the defenders to propone this allegeance illo statu causæ.
Fol. Dic. v. 2. p. 186. Spottiswood, [1itiscontestation.) p. 197.*** Colvil reports this case:
The Lady Essilmonth, and sometime Countess of Errol, having warned tenants of Redgoil to flit and remove from certain lands, as appertaining to her in liferent, it was excepted by the tenants, That they ought not to flit and remove, because the said Lady, non obstan suo vitali reditu, made a covenant to her husband, that albeit she was infeft in the said lands in liferent, yet if she, after his decease, intromitted with his goods and gear, she should renounce the said land and covenant, likeas it was of verity that she had intromitted with 5000 merks worth of his gear after his decease. The exception being admitted to probation, et in termino probatorio, witnesses being produced, it was alleged by the said Lady's advocate, That there ought no witnesses to be received, because the thing that was admitted to probation was her intromission with the gear, the which was taken away by her husband's testament, lawfully confirmed, whereuntil there rested no free gear, but only the sum of; and also the said Lady being charged by my Lord of Errol, before the Commissaries of St Andrews, to give count and reckoning of her husband's gear, she was exonered and discharged by the said Commissaries of all her intromission of her husband's gear, except only the sum of specified in the said decreet, and so these judicial sentences standing of the two Commissaries obstabat perpetua rei judicatæ exceptio, and so the witnesses could in no manner of way be received. To which it was answered, That the party could not now be heard to propone the said allegeance, post statutum probationis terminum, et post litem contestatam, but the same would have served for a relevant reply to have elided the exception; and of the daily practick post terminum admissum, the party will not be heard to come back to propone any new allegeance. To this was answered, partly by the advocates at the bar, and partly among the Lords themselves, That the allegeance which was made was exceptio rei judicatæ, et dicuntur hæ exceptiones rei judicatæ, jurisjurandi, et transactionis exceptiones perpetuæ quæ in quacunque litis parte proponi possunt tam ante quam post litiscontestationem, quia res judicata semper pro veritate accipitur, L. 8. C. De Exceptionibus, et ibidem Doctores, for otherwise it might fall forth that there should be two contrary sentences, and decreets of one thing, which should be a great absurdity, quod semper evitandum est. The Lords, after long reasoning, found by interlocutor, that they would receive no new allegeance of whatsoever estate or quality, post litem contestatam, et statutum terminum, licet nonulli in contraria fuerunt opinione.
