Subject_1 ADJUDICATION and APPRISING. Subject_2 APPRISING.
The Heirs of Mr Thomas Lundy v. The Earl of Southesk, and Others
Date: 12 July 1671 Case No. No 12.
Upon any urgent occasion, the messenger, who is judge in the apprising, may continue the court of apprising, till another diet.
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The estate of Sir James Keith Powburn, being apprised by several of his creditors, they now compete for preference. Mr Thomas Lundy, who led the first apprising, was more than year and day before the rest; and thereupon his heir craved preference.—It was alleged, the apprising was null: 1mo, Because it proceeded upon a bond, carrying a clause of requisition, and the claim of the apprising, did not libel thereupon; so that, albeit it be now produced and done, debito tempore, yet the claim was not sufficiently instructed without it. 2do, The messenger did unwarrantably continue the court of apprising, till another diet, without any necessary cause, which was never accustomed before, and is of very evil consequence; for thereby messengers, at their pleasure, may continue, and weary out the persons concerned; who might propone defences, or produce suspensions; and are not obliged to attend the pleasure of the messenger. 3tio, The apprising was at the Beitch-hill of Cupar, which is not within the shire where the lands lie; and, albeit there be a dispensation in the letters; that ought not to have been granted; because apprisings should only be in the head burgh of the shire, or, in commum patria, at Edinburgh; but especially, seeing the warrant was obtained from the Lords of course, among the common bills; without being read or considered, and so, is periculo petentis and cannot prejudge the more formal diligence of other comprisers; especially, seeing Lundy apprised of new for the same sums, which will come in pari passu with the rest, being within year and day.—It was answered, That it is inherent in all jurisdictions, to continue processes to new diets, having kept the first diet; and that the messenger, by the letters, is constituted sheriff; and there is no question but sheriffs might, and did, prorogate diets in apprisings; and the letters bear warrant to fix courts, one or more: And for the continuation, it was but to the next day, in regard of a great speat, the apprising being upon the hill in the open field, during rain; and it being modica mora, to the next day; which will give no warrant to an arbitrary continuation by messengers, to what interval they please: And as for the place, the Lords, by dispensation, may appoint what place they see convenient; and albeit the dispensation had been of course, and that therein the clerks had failed; yet the parties, obtainers of such dispensations, are secure thereby, and ought not to be prejudged.
The Lords sustained the apprising; and found the requisition now produced sufficient; and found, that the continuing of the diet for so short a time, to be no ground of nullity; unless the competitors could allege a special cause, which they did, or might have alleged, whereby they were prejudged, by leading the apprising the second day, rather than the first. The Lords did also sustain the dispensation of the place; and having perused the practice, produced at the instance of the Lady Lucia Hamilton, anent an apprising, led at Glasgow by dispensation; They found, that the Lords did not annul the apprising on that ground; but the Lords ordained, That no bill, bearing dispensation, should pass of course in time coming; but upon special reasons, to be considered by the Lords, or the Ordinary upon the bills; and that messengers should not continue the diets in apprisings, but upon necessary causes; and ordained an act to be insert in the books of sederunt to that effect.
