Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Agnes Peacock v. Matthew Baillie
Date: 3 July 1662 Case No. No 269.
Improbation of a writ by exception being proponed, and an act extracted, the defender was not permitted to allege nullities.
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Agnes Peacock, as executrix to her husband, having pursued Matthew Bailie for payment of a sum of money, he offered to prove payment, and at the term produced a discharge, whereupon the pursuer took instruments of the production, and offered to improve the same; and craved that the defender might be ordained to compear personally, and bide by the same; and a term being assigned for that effect, and the pursuer ordained to consign a pawn, in case she succumb in the improbation, and an act extracted thereupon, the defender coming from the country, and appearing personally, the pursuer alleged the discharge is null, wanting witnesses. The defender alleged non competent in this state of the process, after the exception of falsehood, quæ est exception ultima; but if the defender had alleged the same at the production, the defender would have replied, that it was bolographon, and excluded any improbation.
The Lords found the exception of nullity not competent in this state of the process.
