M'Naught v Hunter

Subject_ Process—Wakening.— A summary petition is an incompetent mode of wakening a process, even though of a summary nature.

The Sheriff granted warrant of service, and this being executed, and no answers returned, the Sheriff,“in respect that no answers have been lodged to the petition of wakening by James M'Naught and Mrs M'Naught, defenders, wakens this process, and, of new, grants warrant to officers of Court to search for and apprehend the said James M'Naught, and Mrs M'Naught, his wife, and to bring them before me, or any of the Sheriff-substitutes of Lanarkshire for examination, respecting the breach of sequestration complained of.”

Mrs M'Naught was brought before the Sheriff, and admitted a breach of sequestration, in consequence of which she was incarcerated.

She and her husband then presented a bill of suspension and liberation, pleading, inter alia, that a summary petition was an incompetent mode of wakening a sleeping process, even though such process had originally been of a summary nature; l and that if the petition in October 1829 had not been effectually wakened, the incarceration had been irregular, as there was no prayer in the petition of wakening for any warrant to incarcerate, or for any proceeding being had except through the medium of wakening the sleeping process, and administering justice therein.

Hunter answered, 1. That by the immemorial practice of the courts of Glasgow, a summary petition was a competent form of wakening a summary process; but, 2. That, at all events, the warrant of apprehension for examination, which was granted in the original process, being a criminal warrant, did not sleep; and that the Sheriff had of new granted warrant of apprehension for examination, which it was competent for him to do, and to follow up as he had done.