Whether a summons upon the passive titles can be raised and executed during the running of the days of the charge to enter heir.
Leslie v. Innes
Date: 8 February 1622 Case No. No 2.
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Patrick Leslie having charged one Innes to enter heir upon 40 days, as use is, pursues him thereupon for payment of his father's debt. The defender compearing alleged, that that summons could not be sufficient, because the same was raised before the 40 days of the charge were expired, and therefore no process ought to be granted thereupon, seeing it was not lawful to raise the summons till after all the days were expired, after which he might conveniently intent his summons, and no sooner. This allegeance was repelled by the Lords, and the action sustained upon that summons and charge; for the Lords found, that albeit the principal letters and summons were raised and dated before the 40 days of the charge were run, yet seeing it was not executed, nor the party summoned therewith till the 40 days were completely expired, albeit the letters were raised before the days were past, that the same was sufficient.
Act. Baird.Alt. Hope.Clerk, ———.
Fol. Dic. v. 1. p. 465. Durie, p. 15.*** Kerse reports this case:
The Lords sustained a summons raised against a party as charged to enter heir, albeit the summons was raised within the 40 days, and that because the summons was not executed until the 40 days were expired.
