Scottish Court of Session Decisions

Subject_1 INDUCIÆ LEGALES.
Subject_2 SECT. III.

Annus Deliberandi.

Janet Pitcairn
v.
Robert Walwood

Date: 4 December 1702
Case No. No 35.

Poinding of the ground may be pursued intra annum deliberanti.

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Janet Pitcairn, relict of William Walwood of Touch, being infeft in a liferent annuity of 1000 merks per annum, pursues a poinding of the ground against the tenants, and Robert Walwood, now apparent heir to the fiar, her husband; who alleged, No process against him till his annus deliberandi expire. Answered, In pursuits for personal debts a year is allowed to deliberate, but in actions contra fundum, where the ground is principally debtor, and the heir only called pro more, it was never pretended; and at this rate liferenters might be delayed from their jointures a whole year after their husband's death, and the heir might as well plead an annus deliberandi as here; or what if a stranger come to be heritor of the lands craved to be poinded, shall he have a year to deliberate? And there is no charge here to enter heir, and therefore no deliberation; and it was so found in real actions, 2d January 1667, Oliphant contra Hamilton, No 6. p 2171. Replied, Quorsum is the heritor called if he may not propone a defence without the hazard of incurring a passive title? and a delarator was not sustained against an apparent heir within his years of deliberation, 26th June 1667, Dewar against Paterson, No 31. p. 6873., only, that it was in a count and reckoning, and not in a poinding of the ground. The Lords found the annus deliberandi took no place in this case.

Fol. Dic. v. 1. p. 468. Fountainhall, v. 2. p. 163.