Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Earl Queensberry v. The Lord Torthorwold
Date: 20 July 1636 Case No. No 267.
Found that, after protestation, after citation to insist, and after a term given, and taken by the party then appearing, he could not thereafter pass from his appearance.
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The Lord Torthorwold being summoned to insist in a reduction of the rights of Tortholwold, moved at his instance against the Earl, after protestation, as use is in such cases; and a term being assigned to the Lord Tortholwold, compearing then by his procurator to insist, with certification; at the day whereof assigned by the act, the procurators declared that they would not compear; and it being questioned, if the certification of the summons should be granted against him, as compearing, or as absent, in respect of his procurator's declaration, that he would be absent; and who alleged, That he might be lawfully absent, sicklike as in improbations, after terms, assigned to defenders compearing, and taking days to produce, they might thereafter, nevertheless of their compearance to take days to produce, lawfully be absent, and it is permitted to them in form, to pass from their compearance, so ought the like in this case. The Lords found, that after protestation granted in the principal cause, and after citation by an ordinary action, by two summonses to insist, and after a term given and taken by the party, then compearing to insist, he could not thereafter pass from his compearance, and be absent; but the Lords found, that the certification ought to be granted against him, as compearing, and decerned so against him, he having taken a day to pursue his own action, and not doing the same, being his own pursuit; and the Lords were of the mind, that although such certifications were granted in absence, yet that such sentences and certifications should be irreducible.
Act. Advocates & Nicholson.Alt. Stuart & Johnston.Clerk, Scot.
Fol. Dic. v. 2. p. 196. Dure, p. 818.
