Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Crawford v. Cunninghame
Date: 8 June 1627 Case No. No 248.
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In an action betwixt Crawford and Cunninghame, where Cunninghame was convened as heir to his predecessor, who was cautioner for the Laird of Lesnories for payment of L. 400, which the defender's predecessors were obliged to pay, as said is; in the which action, an exception being admitted to the defender's probation, and a term assigned to prove the same, and the act being called by the pursuer, who sought protestation thereon, the defenders desired to be heard to propone another peremptor, whereupon he was ready to make faith, that it was noviter veniens ad notitiam since the term of the act; and the pursuer contesting, that it ought not to be granted to him, in respect of his compearance in the act and the state of the process, and that the same had depended almost two years; the Lords found, seeing this was desired to be proponed by the defender at the first term of the act, that the said exception might be proponed and received; but first they took consideration of the defender's probable ignorance, whereby he could not have known this exception of before, when litiscontestation was made, viz. that it was in facto alieno, being anent his umquhile predecessor's cautionry for another person, and the exception being conceived upon satisfaction granted by the principal party, by selling of land to the creditor, whereof by the law, as he might be presumed, and was excusably ignorant, so he made faith by his oath in presence of the Lords, that he never knew thereof but since the term of the act; as also, the Lords took his declaration upon the probability of his knowledge, and after what manner he got notice thereof since the term, viz. he declared by his oath, that the principal party had given him sinsyne inspection of the writ, whereupon the exception foresaid was founded: In respect of the which oath and trial, anent both the probability of his ignorance and also of his knowledge had since the term of the act, the Lords received the exception now come to the defender's knowledge; but the Lords would not grant incident to prove the exception foresaid, but assigned a long term to prove, at which term they declared they would conclude the cause without further diets, and in the mean time, that the defender might use that diligence by incident or otherwise, as he pleased, but to be concluded against the term foresaid.
Act. Nicolson & Miller.Alt. Mowat & Scot.Clerk, Gibson.
Fol. Dic. v. 2. p. 200. Durie, p. 296.
