Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Sir Patrick Home, Advocate,
v.
Lionel Talmash, Earl of Dysart, and his Tenants at Bruntstane

Date: 5 December 1704

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The late Duchess of Lauderdale, mother to the said Earl, dispones to Sir Patrick Home, for his services, the dwelling-house, yards, orchards, and braes above and below the bridge of Bruntstane; whereon Sir Patrick pursues a removing against the said Earl and his Tenants, from these grass-braes.

Alleged,—No process against the Earl of Dysart; because he is not legally warned, in so far as it is neither executed against him personally, nor at his dwelling-house, nor by letters of supplement at the market-cross of Edinburgh, pier and shore of Leith, he living out of the country; and so, the warning being null, the removing must fall in consequence.

Answered,—The warning was due and legal, in so far as it was executed on the ground of the lands, and at the church-door of the parish wherein the lands lie, forty days preceding Whitsunday last; which was sufficient certioration to the Earl, especially seeing he is cited on 60 days in the process of removing, at Edinburgh and the shore of Leith: and this is all the law requires; for that excellent statute in 1555 anent removing tenants, makes no distinction whether the party warned be out of the kingdom or in it, but only appoints warning to be upon forty days preceding Whitsunday; and ubi lex non distinguit, nec nos distinguere debemus. And this is both the opinion of lawyers, the analogy of our law, and the current of decisions; as appears from Stair, tit. Tacks, sec. 40; and from Dury, 11th January 1622, L. of Faldonside against Bymerside; 17th July 1630, Laird of Lee against Porteous; and 20th February 1666, Macbriar against Creighton, where the Lords sustained the warning, without letters of supplement, against one out of the country.

Replied,—The decisions adduced did not meet the case in hand, but contained sundry diversifying circumstances, sufficient to alter the decision.

It was started among the Lords, that there was no necessity of warning the Earl of Dysart at all, because, he being heir served to the Duchess, Sir Patrick's author, there is no need, in removings, to call either the granter of the right or their representatives, but only the tenants, to give them time to provide another house, or singular successors: as Stair insinuates ubi supra, and cites the 26th of March 1622, and 18th January 1623, the Earl of Lothian against Sir John Ker.

Others thought all who must be called in the process of removing, behoved also necessarily to be warned; therefore the Lords superseded to determine the first point till the parties were heard on this last allegeance, that Sir Patrick was not obliged to warn the Earl of Dysart at all: he being heir to the disponer, and being cited in the removing upon sixty days, as use is, was sufficient.

Vol. II. Page 244.