Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Duff of Drummuire
v.
Innes of Coxtoun

1683. March.

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A summons of transferring passivè against an apparent heir, being raised within year and day after the defunct's death; the pursuer having craved that the depositions of some witnesses might be taken to lie in retentis, for proving some points of the principal libel;—Alleged for the defender, That no act or step in an old process can proceed intra annum deliberandi, more than a new process could be intented: besides, there would be this inconveniency in such a method, that the apparent heir durst not move any interrogatories to the witnesses, for fear of a passive title; and the reserving his interrogatories and objections would signify nothing, if the witness died in the mean time, during the interval of the defender's deliberation. Answered for the pursuer, Any action that hinders not the apparent heir to deliberate, and contains no personal conclusion against him, such as declarators, transferrings, &c. may be pursued intra annum deliberandi. The Lords refused to examine the witnesses; nor would they, at the pursuer's desire, grant presently a commission for examining the witnesses, who were very old men, at a day after expiring of the year of deliberation, which would run out before another session.

Page 9, No. 40.