in the tenor of an Exhibition of Writs for inâ—tructing any Point of Right or Fact Incident Diligences were formerly most tedious expensive and wearisome to Parties For the user thereof might for proving that the Party cited had the Writs he called for make use of Witnesses and thereby had four Terms to cite the Witnesses And if thereby he obtained Decreet of Exhibition he had Terms against the Havers by Horning and Caption and several Terms also against Magistrats to put the Caption in Execution All which Defenders were ready to pretend necessary when they knew there was nothing to be found and did it only to procure delay But by the Act of Regulation these Delays and Pretences are much cut off For as the Subjects in every Society are oblieged to promove Justice by bearing witness upon their Oaths so are they oblieged to depone whether they have any Writs that may prove the thing in controversie and if they acknowledge the having thereof they ought to exhibite them ad modum probationis Therefore incident Diligences do now proceed by Horning against the alledged Havers charging them to appear and depone whether they have the Writs called for and to produce them in so far as they have them and if they obey not the Charge of Horning Letters of Caption are direct to incarcerat them till they depone and exhibite what they acknowledge There be three sorts of Oaths Oaths of Verity Oaths of Calumny and Oaths in litem Oaths of Verity do affirm or deny the truth of the point refered rhereto wherein if the Deponent deny he may either do it simply or qualificaâ—e so far as he knoweth or remembers in which case his Oath will not exclude other Probation But if his Oath be affirmative he may not so qualifie the same Oath of Calumny doth only require the Party to depone That he doth not calumniously alledge any Point knowing it not to be true but that he believes it to be likely And if by this Oath he do not so assert the Point offered thereto or be holden as confest for not deponing it is a sufficient Probation against him There is not so much consideration to be had in the Oath of Calumny of the Iustice of any Point which the Judge should determineâ— but of the Partie's opinion of the verity thereof For by our Custom Oaths of Calumny are not taken till the Lords sustain the Relevancy Nor are Puâ—suers put to depone de calumâ—ia upon the whole Libel before it be discussâ—d If the Party be present whose Oath is craved upon the Libel or Alledgance he must either depone or be holden as confest and if absent he may be cited by a Messenger with that Certification Which goeth on as a distinct Process Advocats are also put to depone de calumnia that they do not invent their Alledgances but were truely so informed When Witnesses are allowed to prove the Act bears those Points in which they are allowed to prove To be prâ—â—â—â— prâ—â—â— at â—â—rt For by our Law Witnesses are not adâ—itted to prove matters of importance where Writ â—â—ethâ— and may be interpoâ—â—d to secure againâ—t â—erjury and as a penalty upon the negligence of these who might have maâ—e â—fe of Write and did not As the Romanâ— did exclude naked Pactions without Stipulation so Witnesses cannot prove the lending or delivery of Mony above an hundred pouâ—â— Scots And they can in no case prove Promises Commands or Warrants Neither can Witnesses be taken to take away Writ except as to delivery of Victual The Terms of Probation being come and bygone either Party against whom any Point is to be proven causeth the Clerk call the Act of Litiscontestation and the Advocats therein mentioned and intimats to the parties to satisfie the Desire of the Act and thereafter the Act is called by the Ordinary before other Causes be discuss'd The Act having been first intimat by the Clerk and thereafter called by him before the Ordinary the Advocats therein mentioned are called to the Bar and then the Pursuer's Advocat craves That the Term may be circumduced and oft-times much time is spent in relating of the Cause and Tenor of the Act especially by the Defenders Advocats who many times have need to bring themselves in remembrance of the Cause by speaking of it for avoiding whereof The Sub-clerk who calls the Act should peruse it and be in readiness to relate to the Ordinary in a word what is the Point to be proven which may be done without so much as repeting the Process but only the kind of the Action and then whether the same or a Defense Reply or Duply was admitted reading the interloqutory words of the Act which expresses what was admitted to Probation The ordinary terms accustomed in such Cases are that the Advocats who cause call the Act craves That the Term may be circumduced or That certification may be granted or specially That the Party may be holden as confest if that be the certification Likewise the Pursuer causeth call the Act when any Defense Duply or Quadruply is admitted to the Defender's Probation In which Case he craves The Term to be circumduced against the Defender As also if the Pursuer be to prove the Point by the Defender's Oath then he causeth call the Act and craves The Defender to be holden as confest If the Point whether it be the Reply or Triply be to be proven by the Pursuer then the Defender calls the Act and craves The Term to be circumduced against the Pursuer Or if the Defender be to prove any thing by the Pursuer's Oath then he craves The Pursuer to be holden as confest But if there be Points to be proven hinc inde as if the Defence do not acknowledge the Libel then if the Pursuer call the Act albeit the Defender call not at the same time yet he will alledge That Certification cannot be admitted until the Pursuer prove his own Libel and prove the Quantities or Prices which will be either granted or at least no Decreet can be granted till the Pursuer's part be proven and whatever the Defender produceth medio tempore will be admitted but regularly Certification should not be admitted The same holds in other Points of the Process to be proven by the Defender when the Defenses do not acknowledge the Points to be proven by the Pursuer But if the Defense acknowledge not the Libel nor the Reply the Defense then if the Pursuer call and renounce Probation as to his Libel he may crave the Term to be circumduced for not proving the Defense though he prove not the Reply that being only necessary to be proven in case the Defense be proven As if the Defense be Compensation â— and the Reply be Recompensation or discharge of that Debt whereupon the Compensation is called if the Pursuer prove the Debt he may crave the Term to be circumduced against the Defender for not proving the Debt whereupon he craves Compensation
MODUS LITIGANDI OR FORM OF PROCESS OBSERVED BEFORE THE LORDS OF COUNCIL AND SESSION IN SCOTLAND By Sir IAMES DALRYMPLE of STAIR PRESIDENT of the SESSION EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1681. MODUS LITIGANDI OR FORM OF PROCESS Before the LORDS of COVNCIL and SESSION A PROCESS comprehends the Instruments and order of Procedour in the Administration of Justice By Instruments are meant Writs and Testimonies as Oaths of Parties Witnesses c. Processes are brought in before the Lords divers wayes some in the first Instance some in the second In the first Instance the most ordinary way was of old by ordinary Summons which were drawn up by the Writers to the Signet without any Bill or Warrant from the Lords because the Stile and nature of them was current and known in the same manner as the Brieves of the Chancery But where there was any thing singular or extraordinary it behoved to proceed by special Warrant of the Lords whether it were different from the common Stile in relation to the Diets or endurance of the Citation or in relation to the Table and Roll by which Summons were to be called or in relation to the mater it self And therefore a Bill was presented to the Lords and pass'd and the Summons thereupon bears Ex deliberatione dominorum concilii which the ordinary Summons bear not Now most part of Summons are raiâ—ed upon Bills Processes also come in upon naked Supplication without a Libel passing the Signet in some Causes especially if they concern Advocats Clerks Writers Agents and other Attendants of the House which the Lords call upon Complaint by the Macers summarly and thereupon grant Processe And now since the discussing of Causes by a Roll is established by Act of Parliament the Lords for dispatch of Complaints of smaller moment upon special consideration represented by Bill do grant Warrant to Macers or Messengers to cite Persons in â—dinbâ—rgh or the Suburbs upon 24. Houres to answer before the Ordinary upon the Bills who discusseth the same summarly without any signetted Libel and so without abiding the course of the Roll. They do also upon complaint of any Contempt as if Parties proceed to Execution where Stops of Execution are granted summarly give Warrant by a Deliverance on the Bill of Complaint to cite the Persons complained upou wheresoever they dwell which is summarly discuss'd by the Ordinary upon the Bills Processes do likewise come in by Letters of Horning without an antecedent â—earing of Parties especially where Horning is ordained to proceed summarly by Act of Parliament or ancient Custom So Letters are granted for the King`s Revenues and likewise for the Charges of Commissioners of Parliament for Reparation of Kirks and Kirk-yards and for Removing from Gleebes designed for Ministers c. These are called GENERAL LETTERS because they bear not warrant to charge any particular Person but generally all and sundry concern`d as Heretors Liâ—erenters Wadâ—etters Tenents and Possessors c. And therefore such Charges differ litle from other Summons and are easely suspended because the Party or Messenger has power to make the Application But they require no Diet or Continuatìon and yet the Party charged or Defender ere he can be heard must suspend and sind Caution All other general Letters of Horning are prohibited where either the thing charged for is not specially express'd or the Names of the Persons charg'd except as to benefic'd Persons to serve for an Intimation of their Provisions but not to denounce any Party Par. 1592. cap. 240. Yet oftimes general Letters in other Cases pass of couâ—se but thereupon Escheats fall not though Caption doth follow For preventing whereof the Lords by Act of Sederunt Iune 8.1665 did prohibite the Writers to draw or Clerks of the Bills to write upon any general Letters of Horning either as to Benefices or modified Stipends untill the Incumbent produâ—e a Deâ—reet conform in his own Person although he produce one in the Person of his Predecessor Ordinary Actions may pass without Bill or by Bill both passing the Signet The Sâ—iles and Tenors of ordinary Summons and of most part of priviledged Summons passing by Bill as now become fix'd and ordinary are commonly known and observ'd by the Writers to the Signet and are contained in their Stile-Books which they are obliged and every Session enjoyn`d punctually to observe And they will be censured by the Lords if they transgress not only in the Stile of Summons without Bill but also in presenting common Bills of course without special notice of the Lords upon trust of the Writers and Servants in the Bill-Chamber who write the Deliverance upon the back of the Bills The like if the Stile be altered in general Letters or other Letters of Horning Diligence and Executorials All these Warrants of the Lords contain a Command to Messengers or Sherisjs in that part to cite and charge the Parties And in ordinary Summons the Citation is to a Day which is left blank that the Obtainer thereof may make use of any Day he pleases within a year after the Summons are rais`d Most part of Summons formerly did abide Continuation that is the Defender being cited and the Day of compearance past the Clerk marked the Summons as being called and continued till such a Day albeit in reality they they were not called because the Defender was not obliged to answer till he was cited againâ— which was by Letters pass`d under the Signet making mention of the first Summons of the Citation and Continuation of the Summons and commanding Messengers to cite the Party to the second Diet which also was left blank that the Obtainer might use it any time within a year after their obtaining thereof Such Summons were not continued as were instantly verified by Writ or needed no other Probation than the Summons it self as being negative or presumed in Law to be true But if the Summons behoved to be proven by the Oath of the Defender or by Witnesses the same was then to be continued except in some few priviledged Causes as in Actions of recent Spulzie Ejection and others And though Summons upon Bills by the Deliverance of the Lords bare expresly to proceed without Continuation yet that passing of course was but periculo petentis and the Summons behoved to be continued The Act also of Continuation behoved to be extracted before Process could proceed But now by the Act of Par. 1672. cap. 6. Acts of Continuation and second Summons are discharged And it is ordained That in Cases where second Summons were before required there shall now be one Summons with two Diets in which the Executions to the first Diet may be given by any Person as being Sheriff in that part constitute by the Letters But after the Day to which the Party is fiâ—st cited the second Citation must be given to a new Diet by Messengers when any Point is reâ—err'd to the Defender's
Advocats from coming within the Barrs and to incarcerat Agents and Servants till the Process be reproduced and the Fine payed Processes being thus seen and ready for Dispute the same are inrolled according to the Dates of the Return marked upon the backs thereof he who is first ready being first to be discuss'd without preference of the Parties except the Kings Causes which after fight may be called without inrolling at any time upon 14. dayes Intimation to the Defender's Advocats wherein Donatars Processes are not comprehended Which Rolls being affixed on the Walls of the Outer House Parties and Advocats may inform themselves to be in readiness to dispute without surprisal or tergiversation Ordinary Actions after they are seen returned and inrolled are called by the Roll. If the Pursuer compear not to insist the Defender may crave Protestation upon his Copy But ordinarly the Pursuer compears and relates the Cause shortly if it be an ordinary Summons the tenor and nature whereof is fixed and known which therefore he needs not relate but only mention the Summons and crave Decreet if there needs no further Probation and if there do he then craves a Day to prove But if the Cause be upon a libelled Summons not having a particular known Stile the Pursuer doth more fully relate not only the tenor of his Summons but the merits of his Cause to inforce the justness and equity of the Cause in particular unless the Lords upon hearing the relation of the Summons stop him till it appear whether the Defender controvert the Relevancy thereof yea or not For it is an improfitable spending of time for the Pursuer to inforce the Relevancy of the Summons if the Defender controvert not the same In the next place the Defender if he resolve to dip upon the merits of the Cause or to adhere rigorously to exact form in the order then he relates the merits of the Cause and odiousnesse of the Pursuit and thereupon proceeds to his Defenses Defenses do not only comprehend Exceptions properly so called but all Objections against the Relevancy of the Summons Order and Interest And therefore the Defender propones his Defenses against the Order of the Process and first That the Day of compearance is not yet past And because the Day of compearance in the Summons and Letters by negligence is left blank the Defender uses to score the same or to fill up a wrong Day and to object thereupon But if the Day of compearance be mentioned in the Execution it will be sufficient albeit the Blank be scored and if it be wrong filled up the Ordinary will sometimes cause the Clerk immediatly mend it and so proceed And at other times doth as he seeth the Cause favourable or not The second Defense is upon the Dayes of Citation wherein the common Rule is that against Persons without the Kingdom Citation should proceed at the â—iercat Cross of Edinburgh and Peer and Shoar of Leith upon threescore Dayeâ— for the first Summons and fifteen Dayes for the second and for Persons within the Kingdom upon twenty one Dayes for the first and six for the second From this Rule are excepted Summons upon recent Spuilzie Ejection Intrusion or Succeeding in the Vice of Persons against whom Decreet of Removing is pronounced which are priviledged by Statute to proceed upon a Citation of fifteen dayes And by Custom Removings Causes alimentary Exhibitions Summons for making arrested Goods or Sums furthcoming Transferrings Wakenings Poindings of the Ground special Declarators Suspensions Prevento`s and Transumpts are commonly priviledged by the Lords Deliverance upon six Dayes And the second Citation when it is needful is always upon six dayes except against the Inhabitants of Edinburgh and the contiguous Suburbs thereof where the second Citation may be upon twenty four Hours which is declared by Act of Sederunt Iune 21. 1672. concerning priviledged Summons And the Writers to the Signet are prohibited to insert any other Priviledge The third Defense is That the Summons hath not two Citations conform to the Act of Parliament 1672. For clearing whereof it is to be considered that the reason of double citation is that the Defender may have more Citations before any Process be sustained against him not only to give him competent time to propone his Defenses but to ascertain him of the Citation which is some times clandestinely done but not so easily when there are reiterat Citations Some times Causes are priviledged to proceed upon one Citation by Law and Custom and sometimes by the Lords Deliverance The Law allows no Continuaâ—ion of recent Spuilzies Râ—movings and Actions accessory to the Lords Decreets as special Declaraâ—ors unless the Cause be of the greatest importance as Reductions Daclarators of Property and Declarators of expyring of Revâ—rsions For though â—hese require no further Probation either by Writ or Oath of Party yet because of their importance they must be continued And so must all Summons which are to be proven by the Defender's Oath of Veâ—ity or by Witnesses The fourth Defense is upon the tenor of the Executions As first if the Pursuer crave the Defender to be holden as confess`d then the Deâ—ensâ— is That he was not personally apprehended by a Messenger at Arms or That the Execution bears not that a Copy was delivered but if it bear a Copy delivered it will be sufficient albeit it bear not personally apprehended because it doth import it Secondly if the Defender was not cited personally but at his Dwelling-House the Execution will be null if it bear not That the Executer gave six Knocks at the most patent Door or Entry of the Defender's House designing the same and that he either delivered a Copy to the Wife â—â—irns or Servants or that he affixed a Copy upon the most patent Door or Gate It must also contain two Wiâ—nesses at least and it musâ— be stamped If any of thâ—se be omitted the Execution will not be sustained But the Pursuer may take up his Summons and mend the Executions abiding by the verity thereof and it must be seen again by the Defender The fiâ—th Defense useth to be upon the Pursuer`s Title whereby the Defender alledgeth No Process because the Pursuer produced no sufficient Title in initio liâ—is As if an Heir pursue without production of his Retour an Executor without a Câ—nfirmation or Licence an Assigny without an Assignation c. And almost in every Process that does not meerly consist in facto a Title in Writ must be produced in initio litis whereupon there ariseth much debate and very divers and different what Writs must be produced as the Title in initio litis which were too tedious here to relate The sixth Defense is upon the Interest of the Defenders not citâ—d whereby the Defender alledgeth That all Parties having Interâ—st are not called As iâ— a Pupil were called without his Tutor's being called at least in general at the Mercat Cross where the Pupil dwells or if a Vassal
called in question by Summons of Error so as to inferr any prejudice against the Persons of Inquest after three Years Recent Spulzies as to their speciall Priviledge of summar Process Oath in litem and violent Profits praescribe not being intented within three Years after the Warning So also Actions for House-maills Servants-Fees and Merchants Compts praescribe as to the manner of Probation by Witnesses if not intented within three years and are then only probable scripto vel juramento So the Preference of the Creditors of the Debitor to the Creditors of the Heir in affecting the Estate of the Defunct by the Act of Parliament praescribes in three years 3. In four Years the Action of Reduction upon Minority and Laesion prescribes after the Partie's Majority 4. In fiue Years the Right of any holden and repute Heritable Possessors so possessing for five years praescribes so in the case of Forfaulture that if the Possesor be forfaulted the KING succeed all other Parties Rights are excluded unless they have interrupted the Possession and raised Process within five years before the Forefaulture 5. The effect of Infeftments of Property and Possessory Judgments thereupon praescribe by the Defender`s possessing seven Years by vertue of an Infeftment or Tack from a third Party so that thereby Actions for Maills and Duties or Removings are excluded and the Defender`s Right cannot be taken away but by Reduction being clad with seven years lawful Possession 6. The legal Reversion of Apprisings which did expire or praescribe by seven years after the Date of the Apprising doth now expire and praescribe by the course of ten years from the deducing thereof And of Adjudications the Legal expires in five years if they be special and if general in ten years 7. Summons of Error or Reduction of Retours deduced since 1617. do praescribe if the Summons be not intented within twenty years after the Service 8. And lastly Heritable Rightsâ— and all other Rights praescribe if not pursued nor possessed by during the space of fourty years The Exception of Praescription of 40. years is elided first by the Reply of Minority because that Praescription runs not against Minors and therefore there must be 40 years besides the years of their Minority 2. All Praescription are elided by Improbation because the Case of Falshood is excepted 3. The Praescription of three years as to the quarrelling the Persons of Inquest runs not against Minors or Absents foorth of the Countrie Neither doth the Praescription of the Legal of Apprisings run against Minors And if a Major succeed to a Minor he hath a Year after his Succession to redeem 4. And last of all Praescriptions are elided by Interruption in the manner prescribed by Law whether the Interruption be by natural Possession or civil by intenting competent Process or by legal Acts or Instruments Renounciation is a common Exception whereby the Pursuer renouncing the Right or Action he or any representing him is thereby excluded therefrom But in Real Rights singular Successors will not be excluded by Renounciation unless there had been a Process against the Partie Renouncer whilst he had Right whereby the matter became litigious which is vitium inhaerens descending to singular Successors But in all Personal Rights the Renounciation of him who hath Right for the time is valid not only against his Heirs but against singular Successors Innovation is also a common Exception whereby any new Right is given not in Security or Corroboration but in full Satisfaction of a former Right whereby that former Right is extinct and there can be neither Action nor Defense thereupon Transaction is also a common Peremptory Defense for thereby the former Right is either taken away in whole or in part and in so far only is the Defense peremptory For there can be no Transaction properly so called but where the Right transacted is either innovat or simply renounced or quit for a Sum of Mony or an onerous Cause or at least abated Exceptio rei judicatae is where the same Cause now pursued hath been judged before and decerned For there is no new Process thereaâ—ent can be sustained else there could be no end of Pleas. But this Exception is elided by several Replyes As if the Pursuit be indeed for the same effect but not super eodem medio as when the Person pursuing pursues as Executor for a Debt and the Defender alledging that the Debt is Heritable be asâ—olzied if the Pursuer thereafter enter Heir and pursue super hoc titulo the Absolvitor will not exclude him And sometimes though the medium be the same and have been referred to the Defender's Oath and he thereupon be assolzied yet if Writ after be emergent that doth not infer Perjurie or contradict the Oath but proveth more nor what the Defender knew or remembred it will not be excluded by an Absolvitor upon the Oath especially if the Deponent was not positve but to his Knowledge and Remembrance The Exception of Litiscontestation is rather a dilator than a peremptor Exception because thereupon the Cause is not determined But the Pursuer may be thereby excluded from any other Process without prejudice to him to insist in that wherein lis est contestata unless the new Pursuit be different from the former at least super diuerso medio All the foresaid common Exceptions are aswel competent by way of Reply Duply Triply or Quadruply as by Exception and may be libelled upon as good Reasons of Suspension Reduction or Declarator In all Processes whatsoever whether in ordinary Actions or in Reductions and sometimes in Suspensions Litiscontestation may be made Which is done when those Points which are to be proven or either part are discuss'd and determined as to the Relevancy and Competencie and that is put to Probation which will end or carry the Cause for the Pursuer or Defender according as the Point shall be proven or secumbed in Whereupon there is an Act extracted deducing the Process and Points sustained and admitted to Probation and likewise those that are repelled which doth contain the Libel or Suspension the Compearance of the Parties and the Production and the Dispuâ—e of all Parties compearing and the Interlocutor of the Lords But when all is instantly verified or needs no further Probation there is no Litiscontestation which is sometimes in ordinary Actions and frequently in Suspensions and Advocations when the Ordinary doth at once judge the Relevancy and Probation But Probation after Litiscontestation must be advised by the whole â—ords Litiscontestation may be against the Defender absent and then the Libel is only admitted to the Pursuer's Probation Wherein if he do cautiously libel he will libel that which may take off the Objections compeâ—ent in Law against his Titles as if they be holograph or ancient and past Prescription that they are preserved by Minoritie or Interruption particularly libelling and proving the same Otherwise the Lords may stick to give him Sentence or if by inadvertency they do the
the principal Cause if it be given out when the Copy is first called The Charger's Advocate at the giving out of the Charge writeth on the back thereof the Dâ—y that it was given out and sets his name thereto and is not obliged to receive the Suspension unless the Suspender mark on the Process That he hath seen and returned the same but may take out his Protestation as if the Principal were not produced According to the Date of the Return of the Charge the Suspension is inrolled and when it comes to be discussâ—d the Cause being called the Charger produceth the Copy marked by the Clerk as aforesaid and thereuâ—pon craveth a Protestation from the Ordinary which he obtains if the Suspenderâ—s Advocate produce not Yet sometimes the Charger`s Advocate will hold the Copy for a Principal and the Suspender will repete his Reasons of Suspension which though they be not admittable upon a short Copy in strict form because all Reasons of Suspension both principal and eked ought to be set down in Writ and given to the Charger to see yet frequently the Charger will rather dispute the Cause than take a Protestation which is easily suspended again and therefore will answer to the Reasons as verbally repeted But if the Suspender compear and the Charger do not insist he may produce the principal Suspension and crave the Letters to be suspended ay and while the Charge be produced which puts him in tuto that no Protestation can be taken upon the Copy till the Charge be produced Yea if the Suspender extract and produce the Charge and refer his Reasons to the Lords they will advise the same and if they find the Reasons relevant and proven will suspend the Letters simpliciter In which case the Decreet of Suspension is as other Decreets in absence and may be reduced upon a Summons of Reduction wherein the Lords will reconsider the Reasons and hear the Parties debate thereupon and may recall what they formerly did albeit super eisdem deductis which they cannot do in Decreets upon compearance But when the Defender is absent the Lords do not so accurately consider the Cause seing there is a Remedy and likewise because albeit they find the Reasons relevant as before the Party may elide the same by relevant Answers and Duplys If the Charger compear and also the Suspender and the principal Suspension is produced then the Charger doth briefly repete his Charge or Decreet suspended and declares what he insists in And if there be any thing general he useth to give in a Condescendence in writ at the beginning to be seen with the Charge which therefore is called the special Charge And if the Charge have in it many Members he declares what Points he insists in primo loco and if he do not the Suspender may insist upon any Reason of Suspension he pleaseth against any of the Points The Suspender in repeting his Reason should condescend by the number what Reason it is and whether it be libelled or eked For Suspenders may add or eke to their libelled Reasons if they will So that if the Reason they repete be neither eked nor libelled in strict form it may be repelled or if the eked Reason hath not been at first produced and seen with the Suspension it ought not to be received Yet many times the Ordinary will indulge that favour and cause the Charger either answer it instantly or take it up till a Day to see which he may do without expunging of the Cause out of the Roll but may call the Cause again at the Day appointed And if the Charger hath seen the Reason may proceed In like manner Reasons of Suspension ought to be instantly verified by Writ unless they be referred to the Partie`s Oath in which case the Charger's Procurators to hasten the Process will take a Day to produce the Charger to give his Oath But if the Reason of Suspension be founded upon a Writ which is not the Suspenders own Writ as when Cautioners suspend upon Discharges granted to the principal Debitor the Suspender will get a Term to prove as he will when the Reasons of Suspension consist in facto and are to be proven by Witnesses The first point of Debate in Suspensions is upon the Relevancy and Verification of the Reasons The next point is upon the Competency of the Reasons For many Reasons are competent by way of Reduction that are not competent by way of Suspension because Suspension stops the Execution of a Decreet already obtained and therefore the Execution should not be delayed except upon Reasons relevant and a short Probation but the Execution ought to proceed And if the Decreet whereupon Execution pass'd be reduced all that hath been taken away by the Execution will be recovered So a Reason upon Minority and Laesion is not receivable by way of Suspension but by Reduction Neither a Reason upon Inhibition Interdiction Iniquity Nullity or upon any Clause irritant not being declared albeit it bear to take effect without Declarator except in few Cases If the Reason of Suspension be sustained then the Charger propones the Answer to the Reason which is so termed to difference it from Defenses proponed in ordinary Actions because the Reason of Suspension is a Defense in the principal Cause and the Answer is a Reply thereto The Answer being proponed is first debated as to the Relevancy and Competency thereof but it needs not be instantly verified because the Charger may delay himself Many things are not competent by way of Answer which are relevant as upon Interdictions Inhibitions Minority and most Nullities and Clauses irritant and Failzies which require Reduction But if the Suspender have a Reduction and will hold the Production thereof satisfied he may repete the Reasons by way of Answer if coincident with his Reasons of Suspension If the Answer be sustained the Suspender may propone his Reply which doth not consist in any Alledgence against the Relevancy or Competency of the Answer but in some distinct Writ Clause or Fact eliding the Answer in the same way as the Answer did elide the Reason and so the Charger insists in his Duply and the Suspender may insist in his Triply and the Charger in his Quadruply c. Albeit the Suspender be obliged to verifie his Reasons of Suspension instantly yet he needs not instruct his Reply because that ariseth upon the Charger's Answer and he will get a Term to instruct the same or his Quadruply Some Reasons of Suspension do not conclude to suspend the Letters simpliciter and so take away the Decreet suspended for ever but to suspend the same for a time and then the Decreet of Suspension bears The Lords suspend the Letters aâ— and while c. Otherwise when the Reasons conclude so and are sustained The Lords suspend the Letters simpliciter If in discussing the Suspension there be nothing admitted to be proven in the future then the Deâ—reet of Suspension follows which is the