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John Hamilton in Halside v George Gordon of Edinglassie. [1694] 4 Brn 184 (5 July 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040184-0415.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Hamilton in Halside v. George Gordon of Edinglassie
Date: 5 July 1694
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This was a summons on the passive titles, as lawfully charged to enter heir to his father and goodsire. The Defences were,—No process, because he was designed John, whereas his name was George; and having now discovered their mistake, they mended it; but it was clearly vitiated. The Lords thought this was only error in nomine, seeing const abat de persona; and esto his first name had been blank, yet his surname and designation were such as could be applied to no other but him.
2do. Alleged,—They had interlined the summons, and inserted his grandfather's name, as being lawfully charged to enter heir to him. The Lords found they might cut and mend their summons, any time before calling, on a new sight of the process in the clerk's hands. They also repelled this dilator, That he was charged to enter heir to his father; and non constat but he is yet alive, having gone some years ago to the Venetian service against the Turks, and was presumed vivus; for they considered he was habit and repute dead, and the party would take his diligence on his peril.
