Subject_1 ADJUDICATION and APPRISING. Subject_2 APPRISING.
Nicolson v. Baillie and Whitlaw
Date: 30 July 1623 Case No. No 3.
A search upon the ground of the land for moveables, ought to precede the charge and denunciation, and every other step of the comprising.
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In an action of reduction of a comprising, pursued at the instance of Mr Thomas Nicolson, advocate, against Robert Baillie and Patrick Whitlaw; the Lords found this a relevant reason of nullity against the comprising, viz. That the compriser had continued the payment of the debt and sum, for which the comprising was deduced unto the term of Martinmas 1619, and that he had denounced the lands to be comprised, in September preceding; in respect of which denunciation, made before the term of payment, the comprising was null, and behoved to fall;—which reason the Lords found relevant, notwithstanding that the defender alleged, That the denunciation, made preceding the term of payment, could not make the comprising null; seeing the comprising itself was not led till after the term of Martinmas was by-past; no more than an arrestment could be null, which was executed for any sum, whereof the term of payment was not come, at the time of the arrestment:—Which allegeance was repelled by the Lords; seeing they found no part of the process of comprising could lawfully be deduced, before the term of payment was by-past of that sum, for which the comprising was led; for the denunciation is a part of the execution.
In this same process, this also found a relevant reason of nullity against the comprising, viz. That by the same, the parties against whom the comprising was led, were summoned by the execution thereof, to hear the lands comprised, before lawful searching and seeking of the party's moveables, upon the grounds of the lands.—This reason was also found relevant; for the Lords found, That the searching and seeking upon the ground of the lands, intended to be comprised, ought to be made, and should precede, before that the party could be summoned to hear the lands comprised, and before any denunciation thereof was made; neither was it sustained, nor found sufficient to maintain the comprising, that the officer had searched and sought at Granton and Edinburgh, and where it was most probable, that the party's goods would have been, against whom the comprising was led, if they had any; and though the comprising bore, that that searching preceded the charge, and summoning of the party; and also, that he had searched and fought upon the ground of the lands comprised, upon the morning after the party was summoned, which the defender alleged to be sufficient, to sustain the comprising; the said searching being done before the charge, at the places foresaid, and upon the ground of the lands comprised, immediately after the charge; seeing that execution of searching is not a material point; at the least not necessary to precede the charge, if it be any time used before the comprising, and before the act be made complete:—Which allegeance was repelled by the Lords; for they found, That the searching upon the ground of the lands intended to be comprised, ought to precede the charge, and summoning of the party; neither was it sufficient, albeit it was done upon the morrow after the party was charged, and before the comprising; seeing they found it ought to precede all the acts of the comprising:—And this was found; albeit the Lords considered, that this kind of execution, was but an execution merely consisting in formality, and not otherways material; seeing comprisings will not be reduced or annulled upon any contrary reason, viz. Where a party would libel a reason, that there was goods and gear poindable upon the ground of the lands apprised, at the time when the officer searched; which the Lords acknowledged would not be, nor is a relevant cause to annul comprisings.
Act. per se.Alt. Cunninghame.Clerk, Gibson.
Fol. Dic. v. 1. p. 5. Durie, p. 78.
