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In the double poinding, pursued betwixt Wood and Waddell and Edgar, &c. the Lords found, that it was not lawful for a man to raise and execute summons for payment of a debt, before the day of payment; and that any sentence proceeding upon such a citation, per quam actor plus petebat tempore, was null.
Fol. Dic. v. 1. p. 538. Haddington, MS. No 2992.*** Durie reports this case.
1624. February 5.—In an action betwixt Wood against Waddel and Wallace, the Lords found, that actions intented, and summons raised for payment of sums, or doing of any other deed, whereof the pursuer's term of payment and doing thereof was not come the time of the raising of the summons, ought not to be sustained, nor respected as good and lawful diligence; and that any sentence following upon such intented actions, albeit the term be by-past, before the pronouncing of the sentence, is null, and ought not to be profitable to the obtainer thereof; and in payment of farms, albeit the same cannot be uplifted before Candlemas, in respect that that time is, by perpetual consuetude, granted to the tenant to thresh out the corns, for payment of the master, and preparing of seed to the ground, before which time the tenant cannot conveniently be prepared, nor ready to satisfy the farms; yet the Lords found, seeing the legal terms of payment are Whitsunday and Martinmas, that both these terms being by-past, pursuit may be moved for payment thereof, so that the sentence decern not the payment to be made till Candlemas be by-past.
Act. Nicolson younger.Alt. Douglas.Clerk, Hay.
Durie, p. 106.
