Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. I.

Libel.

John Drummond of Megginsh,
v.
John Stuart of Innernytie

Date: 27 July 1708
Case No. No 31.

A summons not called within year and day after elapsing of the last diet of compearance falls, and cannot be wakened.

Click here to view a pdf copy of this documet : PDF Copy

In a wakening of a special declarator of Blairhall's escheat, at the instance of Megginsh, against Innernytie and his tenants; the defender alleged no process, because the summons not having been called in judgment within a year after elapsing of the last day of compearance, expired, and could not be summarily wakened, as was decided November 1684, Belshes of Tofts, contra Earl of Loudoun, No 26. p. 11975. For a wakening is only of summons superannuated after it was once called, Stair, B. 4. T. 34. § 4. This holds for the same reason, that a summons not executed within year and day after the raising, becomes null, March 1686, Jolly contra Laird of Lamingtoun, (See Appendix). So, in the Roman law, the prætor's edict lasted only for a year, unless turned into a process, by judicial signatures within that time; and even after res was litigiosa, there was a certain time prefixed for a final determination of the cause, L. 13. § I. C. De Judieiis. Which is also done in most places abroad.

The Lords found, That the summons, not being called within year and day after the last diet of compearance, fell and could not be wakened.

Fol. Dic. v. 2. p. 179. Forbes, p. 275.