Dilatory defence. - If it must be instantly verified?
E Hume v. Francis Stuart
Date: 2 July 1630 Case No. No 155.
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In a poinding of the barony of Coldingham, for a yearly annualrent, the defender offering to improve the execution of the summons against him; and the pursuer answering, that seeing he compeared, he thereby affirmed in effect the citation, and this offering to improve ought not to stay this process; but the defender, if he pleased, may intent his action by way of pursuit thereupon; and cannot now be received, being a dilator, which has not instant verification, as it ought to have, if it could be here received;—and the defender answering, That he compeared only here to quarrel the citation, and proponed the improbation, as a peremptory in the cause;—the Lords found That the improbation of the execution might be proponed peremptorie in this judgment et hacloco, and received the same, without necessity of instant verification; but found, that the proponer ought to have all the terms for improving, which are given to prove other exceptions; for seeing, if the defender were decerned in absence, he might reduce the decreet upon that reason, to offer to improve the execution, so he might now propone it by way of exception, which would be relevant by way of reduction, albeit he now compeared.
Act. Advocatus & Nicolson.Alt. Craig.Clerk, Gibson.
Fol. Dic. v. 2. p. 188. Durie, p. 523.
