Requisition against a party out of the country should be at the market-cross of Edinburgh, and pier and shore of Leith, only.
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In the action betwixt Leith and the Earl of Marshall, after the right made to Leith's brother by his wife was reduced upon minority and lesion, it was alleged for the husband Leith, that he had right to the sum of 1200 merks, contained in the wadset of the lands of Troup, in so far as his wife, with consent of her tutor, had required the Earl of Marshall before her marriage to make payment, and by the marriage (the sum being made moveable) he had right thereto, jure mariti, so that albeit the right of the wadset could be reduced, yet it could not be to the prejudice of his right, which ought to be paid. It was answered, that reduction being a real action, the defence was not relevant to hinder the same, seeing they declared that the decreet reducing the wadset should be but prejudice of the husband's right to the sum, jure mariti. The Lords, notwithstanding did sustain the allegeance, but declared that it was ex gratia, and only of purpose to put an end to the pleas betwixt the parties, which had depended 30 years space. Thereafter the husband insisting upon the requisition and his jus mariti, it was alleged against the requisition, that it was null, in respect that the Earl of Marshall, being out of the country, he was required only at his dwelling house before a notary and witnesses, but not at the market-cross of Edinburgh, and pier and shore of Leith, whereat he was only charged by a mesenger by letters of supplement. The Lords did sustain the allegeance, and found that the Earl ought to have been required before a notary and witnesses at the market-cross of Edinburgh, pier and shore of Leith. But Leith alleged thereafter, that he offered to prove that he was lawfully required. The Lords did sustain the same, and assigned a day to that effect.
Fol. Dic. v. 1. p. 261. Gosford, MS. No 170. p. 72.
*** The same case is reported by Stair, voce Prescription.
