Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Riddochs v. Sorley
Date: 16 June 1670
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This was an action for making up the tenor of a disposition: alleged this action cannot be sustained, because the said disposition being dated in anno 1626, there was nothing followed thereon while the intenting of this cause, which was not till 1667, and so the said writ was prescribed.
Answered,—There was a summons of removing raised and executed within the forty years of prescription, which interrupted the same.
Replied,—That it is a rule of law non prestat impedimentum quod de jure non sortitur effectum, but so it is, that summons was elided by an unanswerable defence of twenty years' possession before the same, by virtue of a right standing unreduced, and therefore could produce no effect, not even as to the interruption of prescription.
The Lords found the said summons (though the same was taken away ut supra) was sufficient interruption.
And the casus omissionis being libelled to have been the time of the plague in 1645, the said condescendence was sustained, since tempus pestis est tempus calamitosum et privilegiatum.
