Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Whythead v. Thomas Lidderdaill
Date: 31 January 1671
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It was alleged that he could not answer till he was of new summoned, because any citation given against him was upon sixty days at the pier and shore of Leith, &c. as use is, against one that is out of the country; whereas he neither at that time, nor ever since, nor before, was he out of the country. Answered, Let it be so, a citation as if he had been out of the country is more than a citation at one's dwelling house, and at least it must be repute equivalent to the same. Quæ superabundant non nocent. In majori continetur et minus.
My Lord Gosford would not sustain the citation, but found he must be summoned of new. The cause of this mistake was, that this defender had a brother who was truly out of the country, and who was also called in the process, and they thought it one work to cite both on the sixty days. See a case somewhat parallel, 4th June, 1631, Chrystie against Jack.
