Manuscripta juridica

Ordo iudiciorum Scotiae - Treatise 'Ane proces comprehends the instruments' ("Form of process") , printed and bound with Stair's Institutions 1681 as a substitute for a not-yet-written Part III.

[{i}Title page:{/i}] Modus Litigandi, or Form of Process Observed before the Lords of Council and Session in Scotland. Edinburgh 1681

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No. of pages: Pag. 1-44 (numbers start here again)

Incipit:

• 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, etc.

  [{i}Beginning and end of first paragraphs:{/i}] 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 Writers to the Signet, without any bill or warant from the Lords, because the stile and nature of them was current and known, in the same manner as the brieves of the Chancery. ... Now most part of summons are raised upon bills.

  Processes also come in upon naked supplication without a libel passing the Signet ... and thereupon grant processe.

  And now since the discussing of causes by a Roll is established by Act of Parliament ... which is summarly discuss'd by the Ordinary upon the Bills.

  Processes do likewise come in by letters of horning without an antecedent hearing of the parties ... ere he can be heard, must suspend and find caution.

  All other general letters of horning are prohibited, where either the thing charged for, is not specially express'd ... although he produce one in the person of his predecessor.

  Ordinary actions may pass without bill, or by bill, both passing the Signet ... 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, of sheriffs in that part, to cite and charge the parties ... within a year after the summons are rais'd.

  [{i}Last paragraph:{/i}] Against this cessio bonorum [D.42.3], there are only two defences accustomed: the one is, that the bankrupt hath dilapidat some part of his estate, since his incarceration, further than necessary aliment. The other, if the creditors offer to aliment him in prison: which can be but a dilator defense, till they may have time to discover what latent rights he hath, or what fraudulent rights he hath made, before or after his incarceration. And is with express condition, that they pay him for his aliment, so much as shall be modified weekly, ... liberty

Explicit:

• and if they faill one week, he will be set at liberty. Finis