Subject_1 ADJUDICATION and APPRISING. Subject_2 APPRISING.
Lady Lucy Hamilton v. the Creditors of Moncastle
Date: 21 July 1670 Case No. No 11.
A warrant, upon a bill to lead a comprising at another head burgh, than that of the shire where the lands lay, was found null, since it was not at Edinburgh, which is communis patria.
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In the reduction, at Lady Lucy's instance, against the Creditors of Moncastle, it being alleged for Pitroan, one of the trustees, that he himself being a creditor, and inserted in the disposition ab initio, the same could not be taken away, but scripto vel juramento.—It was replied, That he ought to condescend and instruct in quantum he was creditor; specially, he being Moncastle's brother-in-law, and so a confident person.—The Lords did ordain him to condescend and instruct, otherwise they declared they would reduce his right as simulate.—2do, The defenders offered to purge the pursuer's comprising, she assigning them thereto.—To this it was replied, That the reversion of the comprising being expired, and the right thereby become irredeemable, she was not obliged to assign; but declared that she was content to discharge the comprising upon payment.—The Lords found the offer to discharge the comprising sufficient, and that she was not obliged to assign.—3tio, It was alleged for Kelburn, who was likewise a compriser, That his right could not be reduced upon these libelled reasons: That the lands were denounced at the head burgh of the regality; and that the comprising was led in Glasgow, which is not the head burgh of the shire; because, albeit regalities were suppressed at that time by the usurpers; yet quoad doing of legal diligence at the head burghs of regalities, there was no discharge thereof in their act and proclamation. And as to the second, the comprising was led at Glasgow, upon a special warrant from the English judges.
It was replied to the first, That by act and proclamation of the usurpers, all jurisdictions of Lords of regalities were discharged and suppressed; and these being taken away, legal executions ought to have been done at the head burghs of the shires where the registers were kept, likeas it was their custom to do so.—To the second it was replied, That any warrant to lead an apprising at Glasgow, was periculo petentis, and contrary to the general practice, and reason; seeing denunciations are used at the head burghs of the shires where the lands ly, as being the only places where the lieges may have notice thereof.—The Lords did sustain the reduction, notwithstanding of the answers; upon this ground: That Kelburn's comprising was not led according to the laws, for the time then in being; and that Kelburn ought to have observed the same, as to the denunciation at the head burgh of the shire; which was hard, seeing he had done according to a standing act of Parliament; and that the usurper's act and proclamation was not special as to legal executions, which had no relation to processes; but only did discharge the Courts of regalities, and the service and vassalage due to the Lords of regalities.—The cause for which the Lords sustained the second reason was; that albeit they grant warrants to lead comprisings at Edinburgh, because it is communis patria, where all public records are kept, and notice may be had of legal diligences; yet they found, that, upon a naked bill, no such warrant ought to be granted for leading of comprisings, at any other head burgh, but that of the shire where the lands ly.
