Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Dougall Macpherson v. Murray
Date: 12 July 1671
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This being a competition betwixt two comprisers, it was alleged by Macpherson, that Murray's comprising was null upon four several heads. The first was, that it was led and deduced upon an heritable bond, which was never made moveable; at least, if it was made moveable, it was allenarly by a requisition made to the cautioner; which could never be a ground for a comprising against the principal; and that the comprising behoved yet to be null, because it bore nothing of the requisition at all.
(This apprising was led by one Mr. Thomas Lundie against Sir James Keith's estate of Caddom.)
This being taken to avizandum, the Lords found requisition being made sixty days before a term to the cautioner, (they being all bound conjunctly and severally in the bond,) was a ground good enough whereon the principal's lands might be comprised; as also that the comprising needed not narrate the said requisition; but find they may produce it now; and ordain the other party to see it.
The second nullity was, that it was a comprising led against the heir male, the heir of line not being called and discussed. To this it was answered, that he was discussed in so far as, he compearing by his procurator in a process intented by the said Murray, a day was taken for condescending and proving what estate belonged to the heir of line, to the effect he might discuss the same; and he failyeing, the term was circumduced against him.
This being also taken to interlocutor, the Lords found this sufficient discussion; and therefore, notwithstanding of the said second pretended nullity, sustained the comprising.
The third was, that the messenger, who was judge to the comprising, had prorogated diet from one day to another; whereas their said diet is ever most peremptory.
The Lords' answer being also sought on this, they found a messenger sitting judge to a comprising was not only sheriff in that part, but also supplied the room of the sheriff of the shire, before whom, of old, all comprisings were led; and therefore, as the sheriff, who has an ordinary jurisdiction, might have continued the Court, having once fenced it, so might the messenger, as in effect but his depute: and therefore they found his prorogating the day no nullity, unless they would condescend on some pregnant and considerable damage they sustained thereby.
Yet one who will but consider the reason of the 6th act of the Parliament held in June 1649, (though rescinded,) will think thir diets peremptory, else there was no need for that act. Vide this at more length, [December 1674, the same parties,] infra No. 452. Vide supra 67, [July 8, 1670.]
The last alleged nullity was, that it was neither deduced within the bounds illius districtus et jurisdictionis where the lands apprised lay, nor within the tolbooth or Session House of Edinburgh, which is communis patria to all Scotland, but at Coupar. Answered, That what the messenger did in this was by warrant and express dispensation from the Lords: this past also to interlocutor.
The Lords found that their warrant ought not to be a snare to any of the lieges; and therefore sustained the apprising, notwithstanding it was led neither infra illum vicecomitatum within which the lands lay, nor at Edinburgh; yet, in regard of the singularity of this, and the preceding point, about adjourning the diet, the Lords declared they would make an act to be a caveat pro futuro how far a messenger's power shall reach in these cases.
There were four great interlocutors. [See December 1674.]
