Mr Mark Lermont, Advocate, v. The Heirs of Lermont of Balcomy, and Mr William Gordon, Advocate
Date: 11 July 1699 Case No. No 6.
A messenger's execution being quarrelled, because he was deprived, and the deprivation published at the market cross of Edinburgh, it being for no malversation, but deficiency in poinding the Lyon's dues, and he being still habite and repute a messenger; the Lords repelled the objection.
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Mr Mark Lermont, advocate, against the Heirs of Lermont of Balcomy, and Mr William Gordon Advocate, was reported by me.—It was a process of roup and sale of these lands as being bankrupt.—Alleged, The execution of the summons was null, being by one Sibbald a messenger deprived, and his sentence published at the market-cross of Edinburgh.—Answered, His deprivation not being for malversation in his office, but only for not payment of some annual dues they owe the Lord Lyon, this cannot infer any incapacity to serve the lieges; 2do, Whatever was the cause of his deprivation, it is enough to sustain his execution, that he continued notwithstanding to act, and was tentus, habitus et reputatus a messenger, according to the decision in the case of Barbarius Philippus, L. 3. D. de officio prætor.——The Lords repelled this objection, and sustained the execution notwithstanding thereof.—2do, Alleged, It is still null, because it is offered to be proven, that the messenger, at the time of delivering the copy, wanted the summons, the warrant thereof; and being required by Mr William Hogg, the defender's advocate, to show his warrant, he refused the same.—Answered, 1mo, The messenger's oath anent his having the warrant alongst with him cannot prejudge the party, unless they offered to improve it; 2do, Mr Hogg's calling for it non relevat, the messenger being obliged to show it to none but the parties; 3tio, It is enough for the messenger that he saw the summons under the King's signet, and copied his execution of it; for where there are 30 or 40 defenders dwelling per omnes regni angulos, it is impossible for one messenger to cite them all; therefore four or five are employed, and the constant practice is, that though all of them have seen the warrant, yet one of them who has most to cite has the summons alongst with him; and if this were sufficient to cast messenger's executions, it would endanger many diligences; and though it may be necessary to have the warrant in hornings and captions, yet not in ordinary processes.—Replied, This inconvenience is easily remedied, by taking more copies of the summons from the signet; and it is most unwarrantable in messengers to give copies of their executions, except they have their warrant in their custody to show, if it be called for.——The Lords found the messenger not obliged to show his warrant to third parties, not defenders, and that law presumed he had it on him, unless the contrary were proven.—Then it was alleged, The active title of this process was not sufficient, being only an infeftment of annualrent which is but a servitude, whereas none can pursue a sale but a creditor having a right of property; 2do, It ought to be an infeftment over the whole subject, which this is not, but only partial; 3tio, The progress is not connected.—Answered, All the act of Parliament in 1681 requires, is only, that sales be pursued by creditors having a real right, which agrees to an annualrenter as well as any other; and it was so sustained to Mr William Monypenny pursuing for the roup of Nicolson.——The Lords repelled the defence in respect of the answer.—Then alleged, It could not sell, because he had Downie and Morton's apprisings both expired.—Answered, The first was reduced, and the second stated in the decreet of ranking for its sums, which was inconsistent with its carrying the property; though a creditor may use it both the ways.——The Lords thought the expiration not being declared, the appriser might protest to have his right reserved, but it could not stop the roup hoc loco; being processus executions et judicium maxime summarium. See Ranking and Sale. See Title to Pursue.
Fol. Dic. v. 1. p. 201. Fountainhall, v. 2. p. 58.
