Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Auchmoutie v. Laird of Mayne
Date: 25 November 1609 Case No. No 237.
An exception of noviter veniens ad notitiam was received after conclusion of the cause, the proponer making faith, and the same being referred to the pursuer's oath of verity, being present.
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Mr Robert Auchmoutie pursued a spuilzie of teinds against the Laird of Mayne, Hay, a part of the quantity contained in the summons being elided by an exception referred to the pursuer's oath of verity, and the rest referred to the pursuer's probation in termino probatorio. The pursuer, by his oath, declared the exception not to be of verity, and therefore condemnatur behoved to be given for that part; for the rest referred to the pursuer's probation. The defender sought circumduction of the term, because no diligence was produced. It was alleged by the pursuer, That the term could not be circumduced, because he offered to refer the matter to the defender's oath of verity. It was answered, That he could not be heard, because his term was expired without diligence, and so could not be supplied. The Lords found by interlocutor, That the term should be circumduced, especially because the rest of the cause was concluded, and the defender was not present in the town; and they would not give letters to summon him, and delay the process, seeing he had done no diligence in the first term. Thereafter, the defender alleged, That he had an exception noviter veniens ad notitiam, to wit, that the pursuer had promised to Robert Hay, who, in name of the defender, accepted the said promise, that if ever he compeared at the bar in the said cause, he should be content to discharge the defender his hail teinds. It was answered, That that exception could not be received, first, because the cause was concluded; and next, because the promise not being made to the party present, and accepted by himself, it was not obligatory, Notwithstanding whereof, because the pursuer was present, and defender's procurator offered to make faith, that the said exception was newly come to his knowledge, and offered to refer the verity thereof to the pursuer's oath, they found the exception relevant to be proved by the party's oath, which being sworn, denied the same.