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The Lord Rollo having pursued his chamberlain for intromissions, conform to a particular account libelled, the defender have compeared, offered to prove he was discharged; which was found relevant; and now producing the same, it proves but for a part; whereupon the pursuer craved sentence for the rest. It was alleged for the defender, That there was nothing produced to instruct the intromission. The pursuer answered, That the defender having made litiscontestation, upon a discharge, without denying the intromission, he has acknowledged the libel, and the pursuer cannot be put to prove the same, without inverting the order, and making two litiscontestations in the same cause. The defender answered, That this being but an omission of the advocates or clerks, of a thing palpable, the Lords might repone the defender.
The Lords adhered to the act of litiscontestation; but referred to some of their number, to move the parties to what was equitable; and it was thought, that if the defender would allege that he was not intromitter for these particulars, but that they were in the pursuer, or his other chamberlain's hands, and were instantly verified by his oath, it were receivable.
