What diligence sufficient. - Effect of partial interruption.
Dunlap v. Porterfield
Date: 23 June 1681 Case No. No 419.
Prescription interrupted by an informal citation.
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Dunlap pursues Porterfield for payment of a debt. The defender excepted upon prescription. The pursuer replied upon interruption, and produced a process for the same debt, the execution whereof was within prescription. The defender duplied, That the executions were simply null, neither bearing to be personally, nor at the party's dwelling-place; and albeit citations may serve for interruption, though the process might be excluded through irrelevancy, or some informality of the order, yet it would never be sustained with no citation, or a citation absolutely null. The pursuer triplied, That by the process produced, it is evident, that the same was several times called, and compearance made therein, marked by the hand of Alexander Lockhart, sub-clerk, who died before this process; so that the pursuer hath not only followed his right, but taken document thereon, according to the old act of Parliament anent prescriptions.
The Lords sustained the reply and triply, and found the interruption by this citation, and the compearance marked as said is sufficient.
Fol. Dic. v. 2. p. 128. Stair, v. 2. p. 882.
*** Similar decisions were pronounced, 25th November 1665, White against Horn, No 44. p. 10646. voce Possessory Judgment; and 6th July 1671, M'Rae against Lord M'Donald, No 13. p. 8338. voce Litigious.
