Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr Andrew Howat v. Margaret Blair and Howat her Son
Date: 10 July 1694
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Mr Andrew Howat, against Margaret Blair and Howat her son, for payment of 6000 merks intromitted with by the said Andrew's father, which fell to him by Carmichael, his uncle by the mother, and was alleged to have been lost in the burning of Howat's house; and, all defences being now discussed, they recurred at last to deny the passive titles. Alleged,—This was not receivable after proponing peremptors, and leading probation thereon, and after advising them. Answered,—By the act of litiscontestation the defenders had not only proponed the defences, denying the passive titles, which would have saved them; but also the pursuer consented to reserve them till the debt was constituted, and the conclusion of the cause; seeing paction and consent may take away law in some cases. Which the Lords found here.
