In a competition betwixt two donatars to a liferent escheat, the Lords preferred him whose summons of declarator was executed three days, and the day of compearance three, days before the execution and day of compearance in the other summons, although the gift which was preferred, was dated three months after the other.
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The L. Renton being donatar to Sir George Hume of Manderston's liferent escheat, and sicklike the L. Wedderburn being donatar to the same, and both the donatars pursuing declarator thereupon, and both compearing, and claiming preference; the Lords preferred Renton, and declared the liferent in his favours; because albeit the Laird of Wedderburn's gift was a quarter of a year dated, and expede before Renton's gift, yet the summons of declarator at Renton's instance was executed three days, and the day of compearance was three days also before the execution and day of compearance of the summons of declarator pursued by Wedderburn; and so for such little odds as three days, albeit there was the space of a quarter of a year betwixt their gifts, the first diligence of the citation was totally preferred; albeit also L. Wedderburn had raised upon his gift a summons of declarator, long before Renton, and had executed the same long before Renton's summons, and called the same; but because it was executed upon six days citation, whereas it should have been executed upon 21 days, therefore he stood not at that citation, which could not have been lawful, but copied the summons again off the signet, and executed the same again novo upon 21 days; which execution so made, and day of compearance was three days behind Renton's; and so Renton was preferred, as said is; and for no other defect, was Wedderburn rejected, but because his last execution was three days behind the other, and the day of compearance sicklike; for the Lords thought that Wedderburn might double his summons at the signet, and of new again summon the party thereby; albeit the other party contended, that he could not summon de novo, by virtue of that summons, which was once executed to another day of before, and which was insert therein, and called, and accepted in judgment by the party; but if he should use any other execution, it behoved to be by another new raised summons, and not by the same summons, or the double thereof, being executed, as said is; which was not respected, for the double was sustained; but for the priority of the other, the other was preferred, they being both creditors to the rebel; albeit Wedderburn offered instantly to satisfy all the debt, owing by the rebel to Renton. See Process.
Act. Advocatus et Nicolson.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 348. Durie, p. 748.
