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Scottish Court of Session Decisions >>
David Oliphant, v James Oliphant of Gask. [1705] Mor 11979 (13 July 1705)
URL: http://www.bailii.org/scot/cases/ScotCS/1705/Mor2811979-030.html
Summons of aliment should have two diets when it requires a term to prove.
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In the action of aliment at the instance of David Oliphant against James Oliphant of Gask.
The Lords refused to sustain process, because the summons required a term to prove, and contained but one diet. For summons of allment not instantly verified, but requiring a course of probation, ought to have two diets; and the late act of Parliament allows only alimentary actions to be summarily discussed, without dispensing in the least with the days of citation, or the number of them.
Fol. Dic. v. 2. p. 178. Forbes, p. 25.*** Fountainhall reports this case:
David Oliphant, as heir-male of the family of Gask, pursues for an aliment, against James Oliphant of Williamston, as the heir of line of Gask. Alleged, The heir-male has no title for pursuing for an aliment, unless it were libelled and instructed, that the estate was provided by the ancient investitures to the heirsmale, seeing the feudal law presumes all lands to hold ward. Answered, Jura feudalia are localia; and now the presumption runs as much in favour of the heirs of line; and many great estates in Scotland are feminine feus, and pass to and by heiresses. The Lords did not regard this defence. Then it was alleged; This summons of aliment was null, because it contained allenarly one diet, whereas all processes requiring a tract of probation must have two diets, in which number aliments are one; for there must be a previous trial and probation led of the rental of the estate, and quantity of the debt, to know the excresce before any modification of the aliment can be made. Answered, That, by the 21st act 1696, summonses of aliment, as favourable, are privileged, and therefore need no more but one diet; but esto they required two, the messenger has, by his execution, cited them to two; so if they must have two diets, it is done, and if not, then two comprehend one, et superflua non nocent. Replied, There is no warrant in the summons but for one diet, and so the messenger has acted beyond and contrary to the will of the letters, in citing to two several diets; and so it is null, whatever way you take it; and though the act of Parliament declares these processes to come in summarily, yet that is only by dispensing with the roll, but not as to the diets of citation. The Lords sustained the dilator, and found no process, till he were legally of new cited to two sundry diets.
