Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Mauld
v.
Lord and Master of Balmerino

Date: 16 January 1678

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The Lord Cowper, standing in the right of the estate of Balmerino in trust, disponed certain lands to James Mauld; and, in special warrandice thereof, granted an annualrent out of other lands: And there being a distress, by non-entry, at Pourie's instance, who obtained decreet for poinding of the ground of the principal land, James Mauld pursues recourse against the warrandice lands.

The defender alleged, No process; because there was no lawful intimation made, by the pursuer to the defender, of Pourie's play, when Pourie's process for poinding of the ground was pursued: In which case the defender had a sufficient defence to exclude Pourie, viz. a right belonging to Mrs Mary Ker, proceeding on a sum whereon inhibition was used before Pourie's right; and, if Pourie's process had been intimated in due time, Balmerino would have raised reduction of Pourie's right, upon the inhibition; which, being repeated by way of defence, would have excluded Pourie.

It was answered, That sufficient intimation had been made; in so far as the dependence of Pourie's process had been verbally intimated to the Lord Balmerino, or the Master, who stands in the fee of the estate; whereupon James Chalmers, advocate, was employed by them, and did take up and return the process, and was never employed by James Mauld. 2do. After the decreet, a bill of suspension had been given in by Balmerino; wherein Pourie prevailed. The cause was disputed upon the bill; and that because there was no reduction raised by Balmerino upon the inhibition; or, if it was, it was but lately raised, and not yet come to be enrolled.

The defender replied, That, whatever was done upon the bill of suspension, imports not; because the reasons behoved to be instantly verified: but if intimation of the play had been made in due time before the sentence, Balmerino would have had time enough to have raised reduction, and repeated it by way of defence. Neither was a verbal intimation sufficient, without an instrument of judicial intimation; without which parties concern not themselves, and are secure.

The Lords found, That the verbal intimation, though not sufficient alone, yet that Balmerino, being so certiorated, employed an advocate to defend, who appeared, saw, and returned the process,—sufficient: And found it relevant to be proven scripto vel juramento; seeing intimations of pleas are ordinary to be made at the bar to the party's ordinary advocate; likeas it was notour that James Chalmers was Balmerino's ordinary advocate.

Vol. II, Page 592.