Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION 1976.
Anent Wakening of Processes
1676.
November.
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Where a defender in a process depending dies, you cannot raise a wakening of that same process against his heir, (for wakenings are only inter easdem personas, where it has slept more than a year,) though it may be said that hæres et defunctus are una et eadem persona, fictione juris; but a summons of transferring must be raised of that process, or else a new pursuit against the heir; see Craigie's Collection, verbo Wakenings, folio 129; where he cites Dury, 18th December, 1629. A wakening of an improbation must be likewise raised, and executed at the King's Advocate's instance as a party pursuer, else it will be null. But quæritur, where a declarator is raised by a defender to meet an improbation pursued against him, (being of the nature of a reconvention,) if it must be likewise executed against the advocate.
