Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XII.

Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.

Lundie
v.
Gray

1583. February.
Case No. No 234.

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In an action pursued by the Lady Lundie against Helen Gray, after that there was a reply proponed and admitted, taking away an exception, the pursuer would have gone from the reply. It was answered, That litiscontestation was made in repelling the exception, and admitting the reply. It was answered, That there could be no litiscontestation made in repelling of the exception, and admitting of the reply, except there had been a term assigned. The Lords found, by interlocutor, That there could not be litiscontestation, except there had been a term assigned. Ego et nonulli alii in contraria fuerunt opinione, quod exceptione peremptoria proposita quæ contra libellum et condemnationem litis, semper fit litiscontestatio; et hæc est communis Doct. opinio, prout Bald. in L. unica C. ibidem.

Fol. Dic. v. 2. p. 197. Colvil, MS. p. 387.