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Henderson v Graham. [1609] Mor 12127 (28 November 1609)
URL: http://www.bailii.org/scot/cases/ScotCS/1609/Mor2812127-238.html Cite as:
[1609] Mor 12127
Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Henderson v. Graham
Date: 28 November 1609 Case No. No 238.
A pursuer having made litiscontestation upon the defender's intromission, he was not in termino probatorio allowed to condescend upon any other particular intromission than was contained in the act, although he offered to refer it to the defender's oath of verity.
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In an action pursued by Thomas Henderson against Graham, sister to the Laird of Inchbrakie, relict and universal intromissatrix with the goods and gear of umquhile Colonel of Condie, her husband; she excepted, That for the utensils and domiciles, she could not be reputed universal introtmissatrix, because her intromission was necessary. It was replied, That the pursuer offered him to prove, that she had intromitted with others the defunct's goods, by and attour the domiciles, whereof, he gave in a particular inventory. In respect whereof the summons and reply being found relevant, and a term assigned in termino probatorio, the pursuer declared, that he would condescend upon farther intromission by the defender with the defunct's goods, to wit, threescore ten pounds of anualrent, which he would refer; to her oath of verity, and would make faith, that the same was newly come to his knowledge; notwithstanding whereof, the Lords, in respect of the state of the process, would not suffer any farther to be proved than was contained in the act of litiscosntestation.
