Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Gordon of Clunie v. M'Culloch, or M'Clellan
Date: 15 June 1622 Case No. No 243.
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In an action of spuilzie pursued at the instance of —— Gordon of Clunie against one M'Culloch, or M'Clellan, wherein after litiscontestation made, admitting the summons to probation, in absence of the defender, the defender compeared, and desired to be restored to propone a peremptory exception, which he offered to verify instantly, there being no witnesses produced, neither of before, nor at that term any ready to be produced, nor no other probation deduced by the pursuer: Which the Lords would not admit, nor suffer the defender to compear to propone any defence, albeit the pursuer had adduced no probation upon the libel, because of the state of the process, which stood not at the first term of probation, but that it was at the second term of further diligence, after which the order and course of the process could not be interrupted as after the first term, by receiving of any exception; and so found that in the like cases, after the second term, the defender should not be heard to propone any defence against the action, which was competent before litiscontestation.
Act. Belshes.Alt. Nicolson.Clerk, Gibson.
Fol. Dic. v. 2. p. 199. Durie, p. 26.
*** Nota, This same was found in the like case in terminis, betwixt the Sheriff of Forest and the Earl of Nithsdale, February 2. 1625, Nicolson being for the pursuer, Hope for the defender, Gibson clerk.
