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Found, That a summons not being continued within year and day (when continuations were in use,) the instance perished.
Fol. Dic. v. 2. p. 179. Harcarse, (Summons.) No 911. p. 256.*** P. Falconer reports this case:
Mr John Belshes of Tofts having pursued a declarator against the Earl of Loudon and his Trustees, for extinction of an apprizing, deduced at the instance of Mr John Livingston of the estate of Loudon, whereto the said trustees had right; it was alleged for the defenders, That there could be no process upon the summons, because the same was continued several years after the days of the first summons were elapsed, and that after year and day, the instance perished and the summons could not be continued. It was answered, That the continuation was equivalent to a wakening. It was replied, That the stile of all summonses was, to compear the day of next to come, which imported the day of compearance behoved to be within the year, and consequently the continuation. The Lords found no process upon the said summons, the same not being continued within the year after the days of compearance in which case, they found the instance perished, and so could not be wakened.
P. Falconer, No 93. p. 64.*** Sir P. Home also reports this case:
March 1685.—Mr John Belshes of Tofts having pursued a declarator against the Earl of Loudon and his Trustees, for an extinction of an apprizing deduced at the instance of Mr Livingston, of the estate of Loudon, whereunto the Trustees had right; alleged for the defenders, that there could be no process upon the summons, because the same was continued these several years after the days of the first summons were elapsed, but after year and day the instance perished, and the summons could not be continued, and that the style of all summonses was, to compear the day of next to come, which imported the day of compearance should be within the year, and consequently the continuation. Answered, That albeit the day of compearance behoved to be filled up in the summons within year and day, yet the summons was to be called and continued at any time thereafter; and anent citation being given upon the letters, it proceeded upon the act of continuation, which was equivalent to a wakening. The Lords found no process upon the summons, in respect the same was not continued within year and day after the day of compearance, in which case, they found the instance perished, and so the summons could not be wakened.
