William Baillie of Lamington v. Mr Alexander Menzies of Culterallers
Date: 19 July 1709 Case No. No 32.
Citation for the second diet sustained, though the day of compearance was nineteen months after the citation, it being within a year of the first diet of compearance.
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Lord Bowhill reported William Baillie of Lamington, against Mr Alexander Menzies of Culterallers, who holding some lands of Lamington, he was pursued in a declarator of non-entry. Alleged, No process, for the execution is null, in so far as the day of compearance for the second diet is without the year from the giving of the citation, whereas both the days should be within the year from the first execution; and he has that respect for the superior, that he would not have proponed this dilator, if Lamington had not declined all terms of accommodation. Answered, This was neither a nullity nor an informality; for it agreed to the analogy of the old form, and custom, whereby, after the first execution there were acts and letters issued out, which might have been executed after year and day of the first execution; it was enough if the day of compearance for the first diet was within the year of the summons; and the 6th act 1672, taking away acts and letters, and appointing both to be executed at one time, for the ease of the people, and abridging expenses, does not alter the distance; and the reason why the second diet was without the year, was, there were more defenders, and it was fit one day of compearance should be made to serve for all. The Lords found it no nullity, but sustained process, and repelled the dilator. Some thought it inconvenient, and wished it were amended by an act of sederunt for time coming, though it could not amount to a nullity quoad bygone citations.
Fountainhall, v. 2. p. 516.*** Forbes reports this case:
1709. July 15.—In a reduction, improbation and nonentry, at the instance of Lamington against Culterallers his vassal, the defender alleged, That no process could be sustained against him, in respect there is more than year and day betwixt the citation for the second diet, and the day of compearance.
Alleged for the pursuer, In executions, the day of compearance for the first diet must be within year and day of the citation, but it sufficeth that the day of compearance for the second diet be within year and day of the first diet of compearance.
Answered for the defender, Albeit when different citations were given for the first and second diets, it was sufficient to make the first day of compearance within year and day of the citation, and the second within a year of the first; yet now when citations to both diets are allowed to be given at once, the day of compearance should be cast within year and day of the date of the execution, otherwise wakenings would be unnecessary in any case.
