Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION VI.
Summary Complaint to the Court of Session.
Subject_3 SECT. I.
Who must be called in a Summary Complaint. - Service of a Complaint. - To whom Competent. - Within what time Competent. - Whether a separate Complaint must be preferred by each Complainer.
Dickson of Kilbucho v. Gibson of Boreland
Date: 13 February 1745 Case No. No 235.
A complaint was, by mistake, served on Thomas the son instead of George the father. Found that the father could not be thereby affected.
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George Gibson of Boreland standing on the roll of freeholders for the shire of Tweedale, a complaint was given in against Thomas Gibson of Boreland, which being ordered to be served, an execution was returned also against Thomas.
Answers were given in in name of Thomas Gibson younger of Boreland, setting forth, that he was not on the roll, nor claimed to be during his father's life.
The complaint, on seeing the mistake, was executed against George, and coming to be insisted in, the Lord Ordinary, 11th January 1745, on advice with the Lords, found, “That Thomas Gibson of Boreland did not stand on the roll of freeholders for the shire of Tweedale; and found that George Gibson the father not being contained in the complaint, the complainers could not be heard to object to the said George why he ought not to stand on the roll of freeholders.”
A petition was presented, which was ordered to be answered by George, and answers were given in thereto, in the name of the father and son.
Pleaded for the petitioner, It was only a misnomer, and seeing constabat de persona, it were unjust on this pretence to continue on the roll a person who had no right to be there.
Answered, it was more than a misnomer, a wrong person had been complained upon, a wrong person summoned, and it was now past time to complain against George the father, after the lapse of the time prefixed by the statute; that the second execution was without a warrant, the order of the Court being to cite Thomas, against whom the complaint was.
The Lords adhered.
Act. Menzies.Alt. Geddes.
Fol. Dic. v. 3. p. 437. D. Falconer, p. 76.
