Brodie of Lethim and the Laird of Riccarton v. The Lord Kenmure
Date: 1 July 1671 Case No. No 307.
A decree being stopped on a bill, found not to be recalled, but only the extracting for-borne till the parties were heard on the grounds of their bill, and that tho' it ley over for several years, it needed not to be wakened.
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Brodie of Lethim, as having right from Riccarton, having several years ago obtained decreet against the Tenants of the Mains of Kenmure, thereafter upon a motion for the Viscount of Kenmure, the decreet was stopped, and now the pursuers desire out their decreet. It was alleged, That the cause having lain over several years, must be wakened. It was answered, That there being a decreet pronounced, there was no more process depending, and so needed not be wakened. It was answered, That a decreet, though pronounced, not being conditional to a day, but being absolute, and thereafter stopped, in respect the stop takes off the decreet, the process is in statu quo prius. It was answered, That the stop doth not recall the decreet, but only hinders the extract thereof till the supplicant be further heard, and it is his part to insist in the bill, and that it would be of very evil consequence if stopped decreets were recalled, for then not only wakening would be necessary, but in case the parties should die, transference should be raised; and, seeing wakenings are not requisite in concluded causes, much less after sentence is pronounced.
The Lords found no necessity of wakening, but allowed the defender to propone what further he had to allege.
