Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XIV.

Wakening.

Mr Robert White of Bennochy, Advocate,
v.
Captain James Oswald of Dunnykeir

Date: 7 January 1709
Case No. No 310.

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Mr Robert White of Bennochy, advocate, pursues Captain James Oswald of Dunnykeir for the price of a house and some acres. Alleged, He could not pay till he received a full progress of writs. The Lords decerned him in the balance of the price, a sufficient progress being given. This is suffered to lie over twenty months, and then Bennochy craves his oath, that if he produce the writs given him, it will appear to be a forty years progress. Answered, The process must be wakened, having slept more than year and day. Replied, There is a decreet in the cause, and that can never fall asleep. Duplied, The meaning of that brocard is, that a decreet once pronounced may be extracted quovis tempore, even after year and day, without either wakening or transferring; but if it be not a final decreet ending the whole cause, but something yet remaining to be done, as here a progress was to be made up, that sleeped like any other process, it being upon the matter only an interlocutor. And the Lords found so, and that Bennochy behoved in form to waken it.

Fol. Dic. v. 2. p. 202. Fountainhall, v. 1. p. 478.