Definition
A term from Scots law procedure describing a plea or defense that was available to a party during the pendency of a proceeding but was not raised. A plea is "competent and omitted" when it was legally open to the party at the time — that is, within the party's power to assert — yet was left unpleaded. The doctrine functions as a procedural bar: a party who had the opportunity to urge a plea but failed to do so may be precluded from relying on it in a later proceeding.
The phrase operates as a unit. "Competent" here means legally available or capable of being entertained by the court — not that the plea was meritorious, but that it was procedurally ripe and the party had standing to raise it. "Omitted" means the party simply did not raise it. Together, the phrase identifies the precise category of forfeited argument: one that was both permitted and neglected.
Common Confusion
Do not confuse the word "competent" as used in this phrase with "competency" in the sense of witness competency, testamentary capacity, or mental competency. Those are distinct doctrines with their own bodies of law. Here, "competent" means only that the plea was legally available to the party — it was within procedural reach. Similarly, do not confuse "omitted" in this phrase with the concept of omitted heirs or omitted property in estates and trusts law. The phrase is a unitary Scots procedural term and its component words carry specialized meaning within that context.
Why It Matters in Research
This is a narrow term of Scots procedural law with no direct American or English common law equivalent, though it maps loosely onto the modern doctrines of waiver, forfeiture, and res judicata. Researchers working in historical Scots law materials, comparative procedure, or early American legal dictionaries that borrowed heavily from Scots sources will encounter this phrase in contexts involving plea structure and the effect of omissions in litigation.
The primary trap is assuming that either word carries its modern English legal meaning in isolation. "Competent" in contemporary American law most commonly refers to the capacity of a witness or a party, not to the availability of a legal argument. A researcher scanning historical sources for competency doctrine will find this phrase and may misread it as bearing on witness competence or mental capacity — it does not. The phrase must be read as a fixed Scots procedural term of art.
Because both Black's and Burrill's source this term to Bell's Dictionary (Bell's Dictionary and Digest of the Law of Scotland), researchers who need fuller treatment should trace the phrase to that primary Scots authority rather than relying on the American dictionary entries, which offer only a single-sentence definition and nothing further.
No significant corpus of American case law uses this phrase as operative doctrine. Researchers encountering it in American legal writing before the twentieth century are almost certainly reading an author trained in Scots law, citing Scots authority, or drawing on the Scottish procedural tradition through the lens of Bell or similar Scottish jurists.
Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary are in complete agreement — both entries are word-for-word identical and both cite Bell's Dictionary as the sole authority. This convergence signals that neither source conducted independent analysis; both were transmitting the same Scots law reference. The entries are descriptive rather than analytical, offering no discussion of consequences, exceptions, or relationship to analogous doctrines.
What the historical dictionaries do not address: neither Black's nor Burrill's explains how the doctrine operated procedurally in Scots courts, what remedies or exceptions existed, or how "dependence of a cause" (i.e., the pendency of litigation) was defined for purposes of the rule. Researchers needing that context must consult Bell directly or period Scots procedural treatises.
The absence of any citation beyond Bell in both dictionaries also signals that this term had not been absorbed into common law jurisdictions or general Anglo-American practice by the time these dictionaries were compiled. It remained a Scots law term of art, included for reference rather than as living doctrine.
Jurisdictional Note
This term is native to Scots law and has no established equivalent in English common law, American federal practice, or most common law jurisdictions. It appears in American legal dictionaries as a reference term, not as an operative doctrine of any American court.
Encyclopedia Cross-Reference
The Law Mind Civil Procedure & Evidence Encyclopedia: Competency of Witnesses — Rule 601 and Dead Man's Statutes (civpro_166) — note that this entry addresses a distinct meaning of "competent"; consult it to understand the conceptual distance between witness competency and the Scots procedural usage here.