LAW. 



633 











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though declared fiiW, continues in full strength in all 

 qmsHnni with third parties. In an action of simple 

 reduction, the certilication is only temporary, declar- 

 ing the writings called for null until they be produced; 

 so th.r over their full force after production, 



even against the pursuer himself. 



18. Actions are also, both by the Roman law and 

 ours, divided into rti ptrtecmlorioe and pecnalct. By 

 the first, the pursuer insists barely to recover what pa- 

 Inrnonio ejut abetl, the subject that is his, or the debt 

 that is due to him ; and this includes the damage sus- 

 tained by the pursuer, dam mini et intercssc; for one 

 as truly a sufferer in his patrimonial interest by that 

 damage, as by the loss of the subject itself. In penal 

 actions, which always arise ex deliclo, something is al- 

 so demanded by way of penalty. 



19- Actions of spuihtir, ejection, and intrusion, are 

 penal. An action of spuilzie is competent to one dis- 

 possessed of a moveaMe subject violently, or without or- 

 der of law, against the person dispossessing, not only 

 for being restored to the possession of the subject if ex. 

 taut, or for the value if it be destroyed, but also for 

 the violent profits. Ejection and intrusion are, in he- 

 ritable subjects, what spuilzie is in moveables. 



20. The most celebrated division of actions in our 

 . law, is into pelitory, fmafstory, and dtclaralory. Pe- 

 titary actions are those where something is demanded 

 from the defender, in consequence of a right of pro- 

 perty or of credit in the pursuer. Thus actions for rcs- 

 n of moveables, actions of (H.inding, of forth- 

 coming, and indeed all personal actions, upon contracts 

 I or qiu.i-cnntnu.ts, are jx.-titory. Possessory actions are 

 those which are founded either upon possession alone, 

 AJ puil*ies, or upon possession joined with another 

 title, as removing* ; and they are competent either for 

 getting into possession, for holding it, or for recovering 

 it ; analagou* to the interdicts of the Roman law, quo- 

 rum ionorxm, uti pattidrtii, and taule ct. A declaratory 

 action is that in which .ionic right is craved to be de- 

 clared in favour of the pur.ucr, but imtliin^ sought to 

 be paid or performed by the defender ; such as decla- 

 rators of marriage, of irritancy, of expiry of the legal, 

 reversion, actions competent to superiors or their do- 

 natorie* for declaring casualties incurred by vassals, 

 Ac. Under this class may be also comprehended rescis- 

 sory actions, which, without any personal conclusion 

 agatnxt the defender, tend simply to set aside the right s 

 or writings libelled ; in consequence of which a con- 

 trary right or immunity arises to the pursuer. An ac- 

 tion for proving the tenor, whereby a writing which 

 is destroyed or musing is endeavoured to be revived, 

 HTect declaratory. The action of double or mul- 

 liplcpninding may be also reckoned declaratory. It is 

 '* competent to a debtor who is distressed, or threatened 

 P****'"*' with distress, by two or more persons claiming right to 

 the debt, and who therefore brings the several cl' im- 

 ams into the field, in order to the debating and settling 

 their several preference*, that so he may pay securely 

 i) whose right shall be found preferable. 



M. Actions proceeded anciently upon bricves issuing 

 from the chancery, directed to the justiciary or j 

 ordinary, who tried the matter by a jury, upon whose 

 5 verdict judgment was pronounced. And to tin'- dr. 

 we retain certain brievcs, as of inquest, terce, idiotry, 

 tutory, perambulation, and perhaps two or three others, 

 -ununonses were, immediately upon the institution 

 of the college of justice, introduced into our law in 

 the place of.brieves. A summons, when applied to ac- 

 " before the Kttioi, is a writ in the king's 



Law 



Action of 



be engross- 



name, issuing from his signet upon the pursuer's com- 

 plaint, authorising messengers to cite the defender to 

 appear before the court and make his defences. The 

 libel or declaration setting forth the ground of action, 

 must be rilled up in the summons before execution. 



23. Defences are pleas offered by a defender for elid- ed before 

 ing an action. They are either dilator}', which do not execution. 

 enter into the cause itself, and so can only procure an Defences. 

 absplvitjr from the lispendens; or peremptory, which 

 entirely cut off the pursuer's right of action. 



!4. A cause alter the parties had litigated it before Litiscon- 

 the judge, was said by the Romans to be litisconlested. testation. 

 By litiscuntrstalion a judicial contract is understood to 

 be entered into by the litigants, by which the action is 

 perpetuated against heirs, even when it arises ex dc/i.- 

 to. By our law, litiscontestation is not formed till an 

 act is extracted, admitting the libel or defences to 

 proof. 



25. All allegations by parties to a suit must be sup- Probation. 

 ported by proper proof. Probation is either by writ- 



ing, by the party's own oath, or by witnesses. In the 

 case of allegations, which may be proved by either of 

 the three ways, a proof is said to be admitted prout de 

 Jure; because in such case all the legal methods of 

 probation ;ire competent to die party. If the proof lie 

 brings by writing be lame, he may have recourse cither 

 to witnesses, or to his adversary's oatli ; but if he 

 should first take himself to the proof by oath, he cannot 

 thereafter use any other probation. 



26. As obligations or deeds, signed by the party By writ- 

 himself, or his ancestors or authors, must be, of ailing; 

 evidence, the least liable to excvption ; therefore, every 



debt or allegation may be proved by proper evidence in 

 writing. 



27. Regularly, no person's right can be proved by by oath of 

 his own oath, nor taken away by that of his adversary; party on 

 because these are the bare averments of parties in their reference.* 

 own favour. But where the matter at issue is referred 



by one of the parties to the oath of the other, such oath, 

 though made in favour of the deponent himself, is de- 

 cisive of the point. The party to whom reference is 

 made, in place of making oatli, sometimes defers the 

 point back to his adversary ; but this is not indulged, 

 unless it shall appear, from the circumstances of die case, 

 that he himself cannot depose in the matter referred to 

 him with distinctness. 



2S. The law of Scotland rejects the testimony of by witness- 

 witnesses, 1. In payments of any sum above L.100 . 

 Scots, all which must be proved either scripto veljura- 

 inenlo. 2. In all gratuitous promises, which, though In what 

 for the smallest trifle, cannot be proved by witnesses, cases proof 

 3. In all contracts, where writing is either essential b ? Wltness - 

 to their constitution, or where it is usually adhibited, as j 

 in the borrowing of money. And it is a general rule, 

 subject to the restrictions about tp be mentioned, that 

 no debt or right once constituted by writing can be 

 taken away by witnesses. On the other part, proba- j n w ht 

 tion by witnesses is admitted to the extent of L. 100 admitted. 

 Scots in payments, non-cupative legacies, and verbal 

 agreements which contain mutual obligations. And 

 it is received to the highest extent, 1. In all bargains, 

 which have known engagements naturally arising from 

 them, concerning moveable goods. 2. In facts per- 

 formed in satisfaction even of a written obligation, 

 where such obligation binds the party precisely to the 

 performance of them. 3. In facts which with diffi- 

 culty admit of a proof by writing, even though the ef- 

 fect of such proof should be the extinction of a written 

 obligation, especially if the facts import fraud or vie* 



