Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Macraw v. Lord Macdonald
1671.
July5 and
11.
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July 5.—In this action, alleged, 1mo, No process; because neither executed personally, nor at his dwelling house. Answered,—Ought to be repelled; because, conform to a warrant and dispensation from the Lords, contained in the summons, he was cited at the market cross of Inverness, as the nearest burgh in the Lowlands, ob non tutum accessum that could be had to his dwelling place. Replied,—A warrant non relevat to sustain such a warning or citation, unless it proceeded on a bill given in to the hail Lords, who, re cognita, allowed of the same. (This is the thing the lawyers call citatio edictalis.) Duplied,—He could never be heard to question his citation, because the sole effect of citation being ut pars citata certioretur, it is offered to be proven it came to the defender's notice. Craigie was content to give them the Lords' answer upon this point, whether such warrants behoved to pass on special knowledge of the hail Lords, or if they were sustainable as passing in course.
The Lords found they would sustain them, as they have been used to pass of course in times bygone.
2do, alleged,—The citation is not yet lawful, because it bears not a copy to have been left at the said market cross, which is a necessary solemnity, and being omitted vitiates the execution. Answered,—The execution stood good notwithstanding of the said allegeance; because it bears he duly and lawfully charged him; which words, duly and lawfully, presuppose all the requisite formalities to have been used. They were to have the Lords' answer on this also.
The Lords found that they would sustain the execution, if so be the messenger will take it up and mend it by adding these words, that he left a copy of the charge at the said cross, and abide by it.
Advocates' MS. No. 199, folio 101.
July 11.—In the foresaid action of Macraw against Macdonald, at No. 199, there was a third point then taken to interlocutor, (which then I omitted,) viz. if the messenger's execution on the first summons should not be sustained, because it wanted these words of a copy left; whether the execution upon the act and letters would be effectual, at least for this, that it would stop prescription, seeing it was given within some very few days of prescription. The Lords found, esto the first execution were null, and so that no process could be sustained on the second, yet that the second would have stood good, ad hunc effectum, to interrupt the forty years' prescription, and that qualisqualis insinuatio sufficit in isto casu. Vide A. Fabrum in Cod, Lib. 3. Tit. 8. De Litiscontestatione defin. secunda. Vide l.13. D. de Regulis Juris, in secundo sensu prout id exposuit Bronchorstius. Vide infra, No. 285; [5th December, 1671,] et supra, No. 17, [Riddocks against Sorleys, 16th June, 1670.] Vide l. 15. D. de inofficioso test.
