The Lord found no necessity of a wakening where the action had been several times called within tho' year, the nothing had been marked on it.
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The Earl of Home having granted bond to the Lady Home, his mother, for the sum of 40,000 merks, which being assigned to Mr Charles her son, and he having pursued an adjudication against the Earl his brother; alleged for the defender, That he offered to prove, by the pursuer's oath, that this action was to the Lady his mother's behoof; and by the Lady's oath, that this bond was granted to the defender's own behoof; which action having lain over year and day, and thereafter the pursuer having craved a commission to take the Lady's oath; the defender did rectify his allegeance and offer to prove that by a late agreement betwixt the Lady and him, she had discharged the said sum, and renounced all her right for the payment of 2500 presently, and 5000 merks yearly in time coming; upon which there being a commission extracted for taking the Lady's oath, the defender did reclaim against the commission, as being unwarrantably extracted, and the process first behoved to have been wakened, Answered, That there was no necessity of a wakening, the action being several times called within year and day, albeit nothing marked; and, albeit it had been sleeping, yet the Lady being sickly and valetudinary, her deposition ought to be taken upon the commission to lie in retentis before the conclusion of the cause. The Lords repelled the dilator, and found no necessity of a wakening.
Fol. Dic. v. 2. p. 202. Sir Pat. Home, MS. v. 1. No 267.
