Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
M'Corkal v. Sanderson
Date: 2 December 1693 Case No. No 284.
In advising a concluded cause, the Lords allowed a new allegeance, not proponed in the act, to be proved by the party's oath; but found it must be cum onere impensarum, if he deponed negative.
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In sundry concluded causes, advised this day, as between M'Corkal and Sanderson, and between Blair and M'Gilchrist, against Janet Lorn and Others, the Lords followed this method, that they received new allegeances, not proponed in the act to be proved by the party's oath. The Lords were all clear, that if he was at the Bar, the referring a relevant allegeance, though new, to his oath, was an instant verification, if they were willing to make faith, that it was noviter veniens ad notitiam, and not dolose omitted. But many of them thought it could not be received, if the party was not in the town of Edinburgh, seeing they were not obliged to attend: But the plurality carried it, that it should be admitted, and a day assigned them to come in and depone, but cum onere maximarum expensarum against the other party, if he denied the fact referred to his oath: And thus, in M'Corkal's case, Sanderson offered to prove by his oath, that he had homologated his decreet of poinding he had produced for eliding the spuilzie pursued against him, by threshing out the corns himself, and delivering them; but here Sanderson's allegeance was adminiculated by one witness's deposition; and, in Blair and Lorn's case, the Lords yet allowed Lorn to crave Blair's oath, whether he had right from the date of his assignation, or if, ab initio, the bond was for his behoof, though blank, and then filled up in M'Gilchrist's name, and assigned by him to Blair long after, to the effect it might appear, whether Blair's general discharge to Wallace, posterior to the date of the bond, but prior to the assignation, would include or comprehend the debt of this bond or not; and in the case, 25th November 1693, of Swinton and Dalmeny, No 283. p. 12147. the Lords refused this allegeance, offered to be proved by the pursuer's oath, that he neither knew nor heard of any interruption of the quinquennial prescription, seeing the pursuer was not the setter of the tack, (who was dead,) but his assignee, and so could not know whether there were interruptions or not.
Fol. Dic. v. 2. p. 199. Fountainhall, v. 1. p. 574.
