Days, how computed. - Induciæ in a charge of horning. - Baron decrees. - Citations pro confesso. - Criminal sentences. - Induciæ before inferior courts. - Reductions and improbations. - Privileged summons. - Decree-arbitral. - Citation of tutors and curators.
Wallace v. Purves
Date: 14 June 1672 Case No. No 15.
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The Lords found, That a declarator of right, which ought to be upon 21 days, being privileged by a bill, which is periculo petentis, should not be sustained, being executed upon a shorter term; and ordained that the writers to the signet should not insert in bills and summonses, a privilege dispensing with the law, and the solennes induciæ thereby introduced in favour of defenders; under the pain of 100 merks for the first fault, and deprivation for the second; except in cases which by the law are privileged and named: The President, Advocate, and others of their number, to meet and consider what these should be.
Fol. Dic. v. 1. p. 465. Dirleton, No 167. p. 68.*** Stair reports this case:
Wallace pursues a declarator of property and right against Purves, for declaring the right of a tenement of land in Edinburgh, and of a well belonging thereto.—The defender alleged, no process, because he was only cited upon six days, whereas declarators require twenty-one days. —It was replied, That the Lords, by their deliverance, had privileged the summons to be Upon six days.—It was answered, That the said privilege was not past by the Lords, ex certa scientia, but of course, as a common bill, without reading and so was periculo petentis, and not being consonant to law, is null.—The pursuer replied, That though it might have been the fault of the writers or clerks to have inserted such a privilege, yet being granted, and used by the pursuer bona fide, it ought to stand, being past upon this special consideration, that both parties dwelt in Edinburgh, and that many more days had intervened before it was called.
The Lords sustained not the privilege, but ordained the writer of the summons to receive a reprimand, and appointed an act of sederunt to be intimated to them and the clerks, that no such privilege should be inserted in bills for any summons, except for such particular summonses as are mentioned in the act; for they considered that 21 days was little enough for defenders to fit themselves for their defences.
