Informal execution. - Term of entry. - Sentence-money.
Dickson v. Anderson
Date: 25 July 1626 Case No. No 27.
Found as above, where the custom was to cite parties without any written execution.
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In a reduction betwixt Dickson and Anderson of a decreet obtained before the Bailies of Dumfries, decerning Dickson to pay 500 merks, being referred to his oath, and not compearing, &c.,—this decreet being desired to be reduced, because he was never warned by any officer to compear; and the executions being called to be produced, and to be improven in this process, the defender compearing, and alleging, that in their burgh-courts their custom was to command their town-officers to pass and warn parties to compear before them, and to give their oaths upon the claims referred to their oath; and that there used no writ to be made upon their officers warnings, and no execution in writ was usually produced by the officers, but only they compeared in judgment, and made relation to the Bailie, that they had warned the party, either personally, or at his dwelling-place, and upon his report decreet was given; so that for not production of their officers' execution the sentence could not be reduced. This allegeance was repelled, and this custom was found not to be allowable, for thereby the ordinary means, to try the verity of the officers' warning of parties, and the way to improve the same, was taken away, which ought not to be permitted, and to give therein more trust to the relation of a messenger or officer, than is due to him, and which ought not to be: So the Lords found, that in such citations and warnings made by town-officers, the least that could be done in any lawful process, proceeding judicially thereupon, by the magistrate of burgh was, that when the officer made his report in judgment, that thereupon a note should be made by the town-clerk in writ, bearing, “That such an officer made such a report in judgment, viz. That he upon such a special day warned the party, either personally or otherways according as he happened to do, to compear in such a cause, and before such special witnesses named and designed;” which report in writ the Lords found ought to be extant, and made furthcoming to all parties, when the process should be called in question, or the saids executions called to be produced by the parties having interest; and which being so extant and exhibit, the Lords found might supply the production of any precept, or executions of officers called for to be produced.
Act. Belshes.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 204. Durie, p. 227.
