Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
L Touch v. E Hume.
Date: 9 June 1624 Case No. No 244.
After litiscontestation the Lords refused to receive either exception or reply, as noviter veniens ad notitiam, where the same consisted in jure.
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In an action betwixt the L. of Touch and the E. of Hume, after litiscontestation was made, and the term of probation come, admitted for proving of an exception, the pursuer desired to be permitted to propone and reply for eliding of that exception, which reply was newly come to his knowledge, since litiscontestation, and whereupon he was content to make faith: The Lords found, that, after litiscontestation, neither exception or reply might be proponed, as noviter veniens ad notitiam, where the same consisted in jure, seeing no party ought to be ignorant of the law; and therefore that allegeance, of noviter venientis ad aures, could not be desired to be proponed by any party, but where the same consisted in facto, and also where the proponer instantly shewed the instruction and verification thereof: But it being contested by the defender, that it was against all law, to suffer a pursuer to propone a reply, as noviter veniens ad notitiam, seeing it was only competent in an exception, and not in a reply; the Lords gave no answer to this doubt, if the pursuer might propone a reply, as noviter perveniens ad notitiam, or not, but left it undecided.
Act. Stuart & Craig.Alt. Hope.Clerk, Gibson.
Fol. Dic. v. 2. p. 200. Durie, p. 127.
