Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Mr John Swinton v. Mr Archibald Primrose of Dalmeny
Date: 25 November 1693 Case No. No 283.
When a process came to be advised, the defender recurred to a defence not formerly opponed. Not allowed, even upon paying expenses.
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In the concluded cause, Mr John Swinton against Archibald Primrose of Dalmeny, for the tack-duty of a salt-pan set to Sir Archibald Primrose, his father, it was now alleged, That it is prescribed quoad modum probandi, not being pursued within five years after the ish of the tack, and the tenant's removal. Answered, This was not receivable now, after an act of litiscontestation, and probation led on it; but was a dilator that was only competent in principio litis. Replied, He proponed it peremptorie, and it was yet receivable, and abides no probation, being founded on a clear statute; and the intenting this process being more than five years after Sir Archibald the tacksman's death. Duplied, It cannot be received now to the pursuer's prejudice, who (if it had been debito tempore proponed) would have offered to prove interruption. whereof he is now precluded. The Lords thought it not receivable now; for that were to engage the pursuer to a new act of litiscontestation, and to seek terms to prove interruption; and that the defender's offer to pay his expenses was not sufficient, and his mean of probation might be now perished.
Fol. Dic. v. 2. p. 199. Fountainhall, v. 1. p. 571.
