Removing from houses in Edinburgh must be with in 40 days after Whitsunday.
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Mr John Inglis pursues the Children of Bailie Lermont for the mail of an house, wherefrom the Bailie being warned, did not remove at the term of Whitsunday, or within 40 days thereafter, which, by the custom of Edinburgh, is allowed for flitting. The defenders alleged absolvitor, because the defunct removed upon the 42d day, the 41st being Sunday, and his wife being then lying in, was transported within 20 days after her delivery, so that being but one day more than the 40, and such a singular occasion of delay, de minimis non curat lex. The Lords repelled this defence, unless the defunct had removed upon, or within the 40 days. The defenders further alleged, That the pursuer's wife had given allowance to the defunct, who was to remove on the 40th day, being Saturday, and that accordingly himself, his wife, family, and goods were removed, and the keys delivered, although some small part of his goods remained, and the key of one door kept, and though a servant going to see what was left, an instrument was taken against him that all then was not removed.
Yet the Lords sustained the defence, and also this defence, that all being removed on the Monday, as said is, the keys were delivered to the pursuer in his own hand, to be proved by witnesses, or that they were accepted by him, otherways, to be proved by his oath.
Stair, v. 2. p. 640.*** Fountainhall reports this case:
The Lords found the bairns liable for the hail year's mail, because they did not remove within 40 days after Whitsunday, though the last fell on a Sunday, for then they should have flitted on Saturday, and the time of removing must be observed, though she was but 20 days in child-bed. The allegeance of offering the keys was found relevant prout de jure; and for the allegeance that the pursuer's wife permitted them to sit a day or two longer, before answer, ordains her to be examined, reserving to themselves to consider how far wives have power in such affairs wherein they use to negociate.
