Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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axtinguifliable tardy by the debtor’s retiring or cancel¬
ling them, the purfuer, before a proof of the tenor is
admitted, muft condefcend on fuclra cafus amijfioms, or
accident by which the writing was deftroyed, as {hews it
■was loft when in the creditor’s pofTeilion ; otherwife bonds
that have been cancelled by the debtor on payment,
might be reared up as ftill fubfifting againft him: But in
writings which require contrary deids to extinguifti their
efFedl, as affignations, dirpofttions,; charters, <&c. it is
fufEcient to libel that they were loft, even cafu fortuito.
23. Regularly, no deed can be revived by this afHon,
without lome adminicle in writing, referring to that
which is libelled ; for no written obligation ought to be
raifed up barely on the teftimony of witneftes. If thefe
adminicles afford fufficient convi&ion, that the deed li¬
belled did once exift, the tenor is admitted to be proved
by witneffes, who muft depofe, either that they were pre-
fent at figning the deed, -or that they afterwards faw it
duly fubfcribed. Where the relative writings contain all
the fubftantial claufes of that which is loft, the tenor is
fometimes fuftained without witnffes. In a writing which
is libelled to have contained uncommon claufes, all thefe
muft appear by the adminicles. A&ions of proving the
tenor are, on account of their importance, appropriated
to the court of Seffion ; and, by the old form, the tefti¬
mony of the witnefles could not be received, but in pre¬
fence of all thejudges.
24. The aiftion of double or multiple poinding may be
alfo reckoned declaratory^ It is competent to a debtor,
who is diftrefled, or threatened with diftrefs, by two or
more perfons claiming right to the debt, and who there¬
fore brings the feveral claimants into the field, in order
to debate and fettle their feveral preferences, that fo he
may pay fecurely to him whofe right fliall be found prefe¬
rable. This adfion is daily purfued by an arreftee, in
the cafe of feveral arreftments ufed in his hands for the
fame debt; or by tenants in the cafe of feveral adjud-
gers, all of whom claim right to the fame rents. In
thefe competitions, any of the competitors may bring an
adlion of multiple-poinding in name of the tenants, or o
ther debtors, without their confent, or even though they
Ihoulddifclaim the procefs ; fince the law has introduced
it as the proper remedy for getting fuch competitions de¬
termined : And while the fubjedt in controverfy continues
in medic, any third perfon who conceives he has a right-
to it, may, though he ftiould not be cited as a defend¬
er, produce his titles, as if he were an original party to
the fuit, and will be admitted for his intereft in the com¬
petition.
25 Certain addons may be called acceflbry, becaufe
they are merely preparatory or fubfervient to other ac¬
tions. Thus, exhibitions ad deliberandum, at the in-
ftance of an heir againft the creditors or cuftodiers of his
anceftor’s writings, are intended only to pave the way for
future procefles. An addon of transference is alfo of
this fort, whereby an addon during the pendency of
which the defender happens to die, is craved to be tranf-
ferred againft: his reprefentative, in the fame condition in
v/hich it flood formerly. Upon the purfuer’s death, his
heir may infift in the caufe againft the defender, upon
producing, either a retour or a confirmed teftament, ac-
A W.
cording as the fubjedt is heritable' or moveable. Tranf-
ferences being but incidental to other addons, can be pro¬
nounced by that inferior judge alone before whom the
principal caufe depended; but, where the reprefentatives
of the deceafed live in another territory, it is the fupreme
court which muft transfer. Obligations may be now re-
giftred fummarily after the creditor’s death ; which be¬
fore was not admitted, without a feparate procefs of re-
giftration; to which the granter was neceflarily to be made
a party.
26. A procefs of wakening is likdwife acccflbry. An
adtion is faid to fleep, when it lies over, not infifted in
for a year, in which cafe its effedt is fufpended; but e-
ven then it may, at any time within the years of prefcrip-
tion, be revived or wakened by a fummons, in which the
purfuer recites the laft ftep of the procels, and concludes
that it may be again carried on as if it had not been dif-
continued. An addon that Hands upon any of the inner-
houfe rolls cannot fleep ; nor an adiion in which decree
is pronounced, becaule it has got its full completion :
Conlequently the decree maybe extradled after the year,
without the neceffny of a wakening.
27. An addon of tranfumpt falls under the fame clal's.
It is competent to thofe, who have a partial intereft in
writings that are not in their own cuftody, againft the
pofleflbrs thereof, for exhibiting them, that they may be
tranfumed for their behoof. Though the ordinary title
in this procefs be an obligation by the defender to grant
tranfumpts to the purfuer, it is fuflicient if the purfuer
can (how that he has an intereft in the writings; but,
in this cafe, he muft tranfume them on his own char¬
ges. Addons of tranfumpt may be pnrfued before any
judge-ordinary. After the writings to be tranfumed are
exhibited, full duplicates are made out, collated, and
figned, by one of the clerks of court, which are called
tranfumpts, and are as effediual as an extradt from the
regifter.
28. Adlions proceeded anciently up,on brieves iflaing
from the chancery, diredted to the jufticiary or judge-or¬
dinary, who tried the matter by a jury, upon whole ver-
didt judgment was pronounced : And to this day, we re¬
tain certain brieves, as of inqueft, terce, ideotry, tutcry,
perambulation, and perhaps two or three others: But
fummonfes were, immediately upon the inftitution of the
College of Juftice, introduced in the place of brieves. A
fummons, when applied to adlions purfued before the fef-
fion, is a writ in the King’s name, ifluing from his fig-
net upon the purfuer’s complaint, authorifing meflengers
to cite the defender to appear before the court, and make
his defences; with certification if he fail to appear, that
decree will be pronounced againft him in terms of the cer¬
tification of the fummons.
29. The days indulged by law to a defender, between
his citation and appearance, to prepare for his defence,
are called inductee legates. If he is within the kingdom,
twenty one and fix days, for the firft and fecond diets
of appearance, muft be allowed him for that purpofe ;
and if out of it, fixty and fifteen. Defenders refiding in
Orkney or Zetland muft be cited on forty days, In cer¬
tain fummonfes which are priviledged, the inductee are
fhortened: Spuilzies and ejedionsproceed on fifteen days ;
wakenings