Found in conformity with Wood against Powrie, supra, that a process once commenced does not fall in less than 40 years, unless when the time is shortened by particular statute.
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Captain Herring having pursued George Ramsay for spuilzieing of certain goods; the defender compeared, and alleged the action was prescribed; for albeit that the pursuer alleged, that the prescription had no place, seeing the summons and action was intented and executed, and called debito tempore, within the space of three years after committing of the fact; yet the defender duplied, That the prescription behoved to have place, by reason that since the intenting and wakening of the cause, there had intervened more than the space of three years, during the which nothing was done, neither by calling of the action, nor by wakening of the same, by the whole space of three years together, which rendered the matter in the like estate, as if the summons had not been raised in due time. The pursuer answered, That the summons being once raised in due time, the prescription ran not thereafter, albeit the cause had sleeped longer than three years. The Lords repelled the allegeance, and found the prescription run not in this cause, which was intented, and called in due time, albeit it lay over thereafter three years, seeing the defender being once summoned, he might have compelled the pursuer to have insisted by his ordinary course of process, in seeking protestation, and charging him to insist, with certification.
The like done 11th February 1637, betwixt M'Kie and L. Lag; where a spuilzie once intented debito tempore, albeit lying over after the citation upon the second summons, ten years together, without calling or wakening, yet the Lords found the action did not prescribe, but sustained it as a spuilzie, to give jur amentem in litem; for they found, once an interruption made, was sufficient to interrupt for ever; but the Lords declared, that after probation, when the party's oath should be taken, they would tax the same as they found requisite, and reserved the modification of the quantities to themselves.
Act. ——.Alt. Oliphant.Clerk, Gibson.
Fol. Dic. v. 2. p. 131. Durie, p. 11.
