Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Lady Westmuirland v. Lady Hume
Date: 29 January 1639 Case No. No 268.
A party who had chosen his mean of proof, by writ or witnesses, and allowed the term for proving to elapse, was not admitted thereafter to refer the libel to the defender's oath.
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In an action betwixt them, wherein litiscontestation made, and some articles of the summons were admitted to the Lady Westmuirland her probation, which were found only probable, either by writ, or oath of party, and at the term assigned for probation, the pursuer producing incident diligence, for recovering of the writs, whereby she would prove, the defender asked instruments thereupon, and alleged, That seeing the summons was probable, and so found, either by writ or oath, that now the pursuer should make her election, and declare by what manner she will prove; after which declaration, that it might be found that she could not vary again, and therefore seeing if she used the incident, which was an election to prove by writ, that she could never be heard thereafter, to refer it to the Lady Hume's oath, or to crave her oath. The Lords permitted to the pursuer, to make her election, whether she would prove by writ, or by the party's oath; and having chosen any one of them, the Lords found that she could not be heard, to return to the other; so that if she used incident diligence, and took terms therein, she could have no liberty to crave the defender's oath, albeit she were at present at the bar; and which the Lords declared they would ever observe in all time to come, to cut off that delay, whereby, after long and many terms' delay, it has been, usual, after all the terms were run out, to refer the matter, for which the incident was used, to the party's oath, which the Lords found that they would refuse hereafter, as a thing also unreasonable in this case, to be granted, as it were against reason, if the matter were referred to the party's oath, and sworn, to suffer writ to be produced to prove the same, and to impugn the oath.
Act. Nicolson, Mowat, & Hog.Alt. Advocates & Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 200. Durie, p. 871.
