A reply instantly verified is receivable post conclusum in causa, unless it has been dolose omitted.
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Muirask having pursued a declarator of redemption of the lands of Balmellie, against Sir Robert Farquhar, litiscontestation was made in the cause, wherein the order was sustained, proceeding upon an adjudication against Sir John Urquhart, as heir to his goodsire, and it was offered to be proved, that he died in the right of the reversion of this wadset, which was but base and holden of the granter, for proving whereof his charter was produced, bearing the barony of Craigfintrie and Balmellie, per expressum. At the advising of the cause, it was alleged, That the defender having protested for reservation, contra producenda, it is now instantly verified, that the grandfather died not in the right of the reversion, but that he was denuded by disposition to his son, instructed by his charter produced. The pursuer answered, That he opponed the state of the process; and if such a defence were now competent, it ought to be repelled, because he hath right from Sir John Urquhart, who is heir served and retoured to his father, in whose favours his grandfather was denuded, and has declared that he consents to the declarator upon that ground, and renounces all other right. The defender answered, That the order having been only used upon the adjudication from Urquhart, as heir to his grandfather, if that be excluded, albeit the pursuer have another right, he must use the order de novo, and redeem thereupon. 2do, Sir John Urquhart's right produced renounces, but does not dispone any right to the pursuer.
The Lords having considered the state of the process, found that a reply instantly verified, is receiveable post conclusum in causa, unless it were alleged to have been known to the proponer, and dolose omitted, by which the pursuer might be put to a duply, suffering new probation. But the Lords found, that the charter produced, bearing the grandfather to be denuded, did not instantly verify, because it expressed not Balmellie; and would not allow a term to prove part and pertinent.
It was further alleged by the defender, no declarator till the sums consigned were produced at the bar, especially seeing it was offered to be proved, that the pursuer lifted them himself, and he being at the bar, it is instantly verified.
The Lords sustained the same, and declared the sums being reproduced before extract, and that the pursuer shall be liable for annualrent, or the wadsetter shall retain the duties effeiring thereto.
