Scottish Court of Session Decisions

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

Crawford of Ardmillan
v.
The Lord Bargeny

Date: 23 June 1681

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Crawford of Ardmillan, having charged the Lord Bargeny for payment of a sum contained in his bond;—he suspended, and Alleged Compensation, and payment of a part.

Which being found relevant, and a term assigned; at the calling of the act to circumduce the term, Bargeny produceth some writs; and Ardmillan, by supplication, alleged, That they had no contingency with the reasons, but were produced of purpose that the cause might go to the roll of concluded causes; which would make a long delay ere it came in of course; and, if any thing proper were produced, the desire of this decreet would be for the superplus. Which being remitted to the Ordinary, he reported, That there was nothing had contingence but a compensation of 32 merks. Whereupon the question arose, Whether the charger, allowing that, should have decreet for the rest, without abiding the roll.

The Lords found, That, when acts were called for circumducing the term, when any thing was produced, the Ordinary, before he made a great avizandum whereby the cause was concluded, ought to allow the other party a sight of the production; and, if the other party was content to allow the same, and that there was a clear superplus, the Ordinary ought to decern for the superplus, if the party required the same; and, if the party would not allow the partial production, make avizandum thereupon only; but if the party suffered avizandum to be made simpliciter in the cause, the Lords would not consider the cause before it came in course: otherwise they would be necessitated to advise causes twice; first, whether the writs were contingents; and next, whether the writs proved: which were most inconvenient, and contrary to custom.

Vol. II, Page 882.