Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
L Thornton and Dr Strachan v. Keith
Date: 10 January 1627 Case No. No 246.
Even after an extracted act of litiscontestation, upon the defence of payment, which the defender failed to prove, he was allowed to object against the foundation of the debt.
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In an action pursued by the L. of Thornton and Dr Strachan against Robert Keith, burgess of Aberdeen, for payment of a legacy left by a defunct to the defunct's legatar, which the defunct ordained to be paid by her executors, at the time of the marriage of the said legatar, and in the mean time that the sum left in legacy should be employed upon profit to the use of the said legatar; these pursuers being made assignees by the legatar to the said legacy, pursue this defender as executor to the testatrix, for payment of the principal sum left in legacy, and of the annualrent thereof continually since, as well before the time of the legatar's marriage as since the time of the marriage; and the defender compearing and proponing an exception of payment of the legacy to the cedent before the assignation; which being admitted to probation, and he having succumbed in proving thereof; thereafter the defender, when the exception was found not proved, and the decreet was to be pronounced conform to the desire of the summons, he alleged, That the Lords ought not to pronounce a decreet for any years' profit since the marriage, seeing the legacy, which was the ground of the pursuit, astricted the executor only to pay profit to the legatar, to the time of the marriage, When the principal sum should have been paid, so that after the marriage there was no action competent for any profits thereafter: The pursuer answered, That this was not competent now to be proponed, after the proponing and admitting of a peremptory exception, wherein the defender succumbing, there rested no more but sentence conform to the summons; which could not now be quarrelled upon irrelevancy, or how far the same should be extended after succumbing, as said is, but ought to have been proponed before litiscontestation: The defender answered, That this was competent to be considered at all times by the Judge, albeit the party had omitted the same, for the Lords, ex officio nobili, ought to decern nothing but that which is relevant and reasonable, albeit the party should omit the same, quia quæ desunt partibus et advocatis, Judex debet supplere. The pursuer Answered, That this supplement of the Judge is not now to be received, being the party's fault, et non juris, wherein the Judge of the law may supply. The Lords found, that notwithstanding of the defender's succumbing to prove the exception proponed, and omission to propone this allegeance, that they, as Judges, ex officio nobili, might in this same state of the process, after the defender had failed in probation, yet consider how far the debt should extend as to the profits, for that was incumbent to the Judge, to see that their sentence should proceed upon reasonable and relevant grounds; and therefore seeing the testament was the only ground of the pursuit, which appointed profit to be paid to the time of the marriage, and that the pursuit was not moved upon that ground, viz. that the profit was sicklike due sinsyne ob moram, for not payment of the principal sum at that time; therefore the Lords found, That decreet should only be given for the profit to the time of the legatar's marriage, there being no profit sought, as said is, upon any other ground ob moram, in not paying thereof then; and this was found might and ought so to be done by the Judge, albeit it was not proponed by the party, and albeit of the failzie to prove ut supra.
Fol. Dic. V. 2. p. 199. Durie, p. 254.
*** It must be kept in view, with regard to the pursuer, he is not barred by litiscontestation from making new allegeances, and insisting upon new media concludendi; for if a decree does not exclude him, far less an act of litiscontestation.
