Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Copland of Colliston
v.
Fraser of Laggan

Date: 26 July 1771

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BY sundry decisions of the Court, this rule, in the case of non-entry, seems to be established, That, from the citation in a special declarator, the full maills and duties of the lands are exigible, unless the pursuer gives reason to lead the defender to suppose that he has deserted his claim by not following it out effectually, but being dilatory, and allowing the process to fall asleep.

A case of this kind occurred between Mr Spottiswood of Spottiswood and Mr Fraser of Laggan. Spottiswood pursued Laggan in a general declarator of non-entry, which contained also a special declarator and conclusion of maills and duties. (This therefore was a general and special declarator in one, which is very consistent.) But, during the dependance, he transferred his right to Mr Coltart of Areeming and Mr Copland of Colliston, after which the action was allowed to lie over for some years, and to fall asleep. It was afterwards wakened by Colliston, as sole pursuer, and the wakening executed 10th May 1770; and being insisted in, Lord Elliock, Ordinary, 23d November 1770, gave the full maills from the 20th May 1765, the date of the citation in the principal process. On a reclaiming petition, and answers, the Lords, 26th July 1771, in respect that the libel concluded for more than was found due, and that the process was allowed to lie over and fall asleep from I765 to 1770, found that the pursuer had only right to the full maills and duties from the 23d November 1770, the date of the Ordinary's interlocutor. But, on a second reclaiming petition, and answers, they gave them from the 10th May 1770, the date of citation in the summons of wakening.

This interlocutor was acquiesced in.

Several other decisions, at Spottiswood's instance against Craick of Arbigland, Turner of Ardwall and Others, were cited in this case, in which it had been found that maills and duties were due in the special declarator, from the citation.