Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Dougall M'Pherson v. Murray; or rather,
Thomas Lundy v. Sir James Keith of Caddom
1675.
Click here to view a pdf copy of this documet : PDF Copy
In the action mentioned supra, at No. 216, between Murray and M'Pherson, [12th July 1671,] or rather Mr Thomas Lundy and Sir James Keith of Caddom, we will find a comprising was there quarrelled as null, on the following grounds:—Primo, That the creditor who was to lead the apprising had, upon a bill given in by him to the Lords, obtained a dispensation to hold his court of apprising at a place in the open fields called the Beechhill in Angus, (which I conceive was craved as nearest to him, to save charges;) and which place was neither on the ground of the lands to be apprised, nor at the chief burgh of the shire where the lands were situated, nor was it within the shire where they lay, nor at Edinburgh, which is the communis patria of all Scotsmen, and, where lands in sundry shires are to be apprised, is ever made the place, but was in the open fields and in another shire; at which rate, one may apprise lands situated in Leith or Edinburgh, in Lochaber or Orkney, by which they may be both clandestine and remote. 2do, The comprising was questioned, in so far as it was not led and adduced on the day prefixed by the messenger, but he had prorogued and continued the diet at his own hand; which being peremptory, and he only as judex pedaneus, seemed unwarrantable for him to do: yet the macers in service of heirs, ex justis causis, will continue; and the style containing a messenger's warrant, empowers him to affix diets, one or more. The Lords went over them both, and sustained the comprising, yet looked upon them as enormities and irregularities they would not sustain for the future; and ordained the appriser to condescend in special on some reasonable causes why the messenger deserted the first diet he set. In obedience whereto they condescended, 1mo, That the messenger was so drunk he was not capable to officiate. 2do, Being in the open air, there was a great rain that would have spoiled all their papers if they had offered to proceed. Which excuses the Lords accepted of; but they found it absurd that a messenger should have power at his pleasure to prolong the comprising, which, at that rate, he might dwang and delay for a year or more, and defraud persons of their just diligences.
