Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. I.

Libel.

Anne Ross and William Wallace Writer
v.
Thomas Cleghorn and the Incorporation of Tailors of Portsburgh

Date: 22 July 1758
Case No. No 52.

A summons, by being called in the Outer-House by the clerk, becomes a depending process.

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Anne Ross raised a summons for payment of a debt against Lady Earlshall, which was executed upon the 2d of August 1721. This summons, after the days of compearance were elapsed, was called in the Outer House in the usual form by the clerk, and the calling marked on the margin thus: “3d February 1722, Actor, Irving, Alter. Boswel. To see.”

Anne Ross raised inhibition on this summons, in order to attach the lands of King's Stables, then the property of Lady Earlshall, which was executed on the 22d August 1721, and recorded the 7th September thereafter.

This summons was neglected for 24 years; after which Anne Ross and William Wallace her assignee, raised a wakening and transference against the Lady Earlshall's three daughters, and added a conclusion of reduction ex capite inhibitionis of a disposition of the lands of King's Stables, by Lady Earlshall to David Bruce-Bailie, in 1724, and the service of Robert Bailie, as heir to him, in 1725, with infeftments, and other writs following thereon. Before this time Robert Baillie had sold the lands to Thomas Cleghorn and the Incorporation of Tailors.

Anne Ross obtained a decreet cognitionis causa, the three daughters having renounced, and afterwards an adjudication of the lands of King's Stables, for payment of her debt, and insisted in a process of mails and duties, in which Thomas Cleghorn and the Incorporation of Tailors of Portsburgh, purchasers by progress from Lady Earlshall, appeared, and pleaded a preference on their prior infeftments.

Anne Ross replied, That the inhibition executed upon her depending process in August 1721 was prior to the defender's rights, and therefore a sufficient ground for reducing them.

Objected for the defender, to the pursuer's inhibition, That the summons on which the inhibition was raised had expired by the elapse of year and day without any judicial proceedings or debate following upon it; and if the summons expired, the inhibition must fall with it; as was found in the year 1743, James Robertson brewer in Edinburgh against Mr Alexander Macmillan. See Appendix.

Answered; The summons, by being called in the Outer-House by the clerk, became a judicial proceeding and a depending process; for anciently the first calling of summonses in the Outer-House was in presence of a judge, as is the practice still in the inferior courts; and though in fact the judge is not now present at these callings, yet his presence is presumed; and this is to be considered as the first judicial step upon every summons, and is agreeable to the authority of Lord Stair, B. 4. Tit. 2. § 3, and the obvious construction of the act of sederunt 26th February 1718.

“The Lords found, that the summons, by being called in the Outer-House, became a judicial proceeding, and could be afterwards wakened and insisted in; and therefore repelled the objection.”

Act. Garden. Alt. Ferguson. Fol. Dic. v. 4. p. 146. Fac. Col. No 128. p. 236.