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.

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v.
Earl of Kinghorn

Date: 23 January 1665
Case No. No 271.

Improbation of a bond being sustained as an exception, the defender was afterwards allowed to propone payment.

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——— having pursued the Earl of Kinghorn, upon a bond granted by his father, he proponed improbation, by way of exception, which was sustained, and a term assigned to prove, and that same term to the pursuer to bide by his bond. The defender supplicated, that seeing the act was not extracted, albeit the term was come, that he might have yet liberty to propone payment. It was answered, He could not, because exceptio falsi est omnium ultima, after which no other could be proponed, much less after the term was come, and the pursuer come to bide by the writ.

Yet the Lords sustained the defence of payment.

Fol. Dic. v. 2. p. 198. Stair, p. 343.