Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XIV.

Wakening.

Mr Alexander Maitland
v.
Alexander Brand of Reidhall

Date: 22 July 1707
Case No. No 309.

A cause found not to be sleeping tho' uothing was done therein from 14th February 1706 to 30th June 1707, in respect the session was under adjournment from the 1st of November 1706 to the 4th of February 1707, and in order to the sleeping of a cause the time of adjournment was to be considered as tempus inutile, and to be made up by so long of session, without reckoning the vacation.

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In the declarator of non-entry at the instance of Mr Alexander Maitland against Alexander Brand of Reidhall, it was alleged for the defender, That the cause is sleeping; in so far as nothing was done from the 14th of February 1706 to the 30th of June 1707; whereby it lay over more than year and day, even after deduction of the whole space of the adjournment of the winter-session, viz. from the 1st of November 1706 to the 4th of February last bypast; and therefore no process could be sustained till the cause were wakened.

Replied for the pursuer; The time of the adjournment of the session by the Parliament, is to be considered as tempus utile, and so before the process could sleep, he should be allowed three months of session, without reckoning the intervening vacation.

Duplied for the defender; The year within which a process must be called to hinder sleeping, was never imagined to be a year of session-months, but tempus continuum, including session and vacation. This is farther cleared from the tenor of the acts adjourning the session, whereby it is declared, That the space of adjournment should not be reckoned in annual prescriptions, which argues plainly, that the said individual space of time should only be deducted, without any alteration of the nature of these annual prescriptions from a tempus continuum to a tempus utile.

The Lords repelled the defender's allegeance, and found that the cause is not sleeping.

Fol. Dic. v. 2. p. 202. Forbes, p. 188.