Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Sir James Cockburn
v.
The Lady Crumstain

Date: 9 February 1681

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The Lady Crumstain having pursued a declarator against Sir James Cockburn, which being disputed in the Outer House, and the Ordinary having ordained some writs alleged upon to be produced before answer;—which being now produced, the Ordinary having called the cause again,—

It was alleged for Sir James, That writs being produced upon an act, the Ordinary could not determine thereon, but only the Lords in præsentia.

It was answered, That here was no act of litiscontestation, nor an act before answer equivalent thereto, but only a warrant to produce writs which were in the parties' hands, that an allegeance might be founded thereupon, according to the tenor of the writs.

The Lords found, That this being no act of litiscontestation, or equivalent thereto, the Ordinary ought to hear the parties upon the writs produced.

Vol. II, Page 857.