Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
John Rule, Merchant in Dumfries, v. Andrew Purdie, Merchant in Edinburgh
Date: 30 June 1708 Case No. No 44.
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In a removing from a tenement within Dumfries, pursued at the instance of John Rule, infeft therein as heir to John Rule, chirurgeon there, his father, against the tenants; compearance was made for Andrew Purdie, who having adjudged the tenement from the pursuer's father's author, and standing infeft therein, objected against the pursuer's warning, that it was null for being executed by one James Mackno, a borough officer that was blind, and so not capable to execute diligence, seeing a blind man could easily be imposed upon, and mistake one man, or one house or door, for another.——The Lords found it to be jus tertii to Andrew Purdie, to object against the formality of the warning, in respect he was neither a possessor, nor called in the removing, but only a pretended competing creditor, who had no further interest than to get himself preferred.
Fol. Dic. v. 1. p. 520. Forbes, p. 256.*** Fountainhall reports this case.
John Rule, standing infeft in some tenements in Dumfries, upon an adjudication led by his father, pursues a removing against the tenants. Andrew Purdie, likewise an adjudger, and infeft, compears, and alleges, I will not let you remove these tenants, for the execution of the warning is null, in so far as it is executed by James Mackno, a town-officer, who has been stone blind these many years, and therefore incapable either to execute any diligence, or to give a written execution thereon, seeing he cannot know if the person against whom he gives it be the true party against whom it is designed; for how can he know one person's house from another, 2do, It is further null, as being only subscribed by initial letters, and not ad longum, and even how could he do that, except his hand had been led. Answered for Rule, 1mo, This is jus tertii to Purdie, who is not in possession, nor called in the removing, and has only interest to seek preference in the mails and duties; which, if he do, Rule will exclude him clearly, seeing his adjudication is not so much as within year and day of his, and so can never compete farther than to redeem him, which also Rule is not bound to accept of now; his adjudication being long ago expired, and no other used. 2do, There is no law excluding a blind man from executing a warning, seeing he can do more, in granting valid and sufficient bonds and dispositions; and this man, though blind, is of that sagacity, that he is more employed than any town-officer in Dumfries; for there is not a house in that town but he can go to it; and if he has once heard a man, he will know him again by his voice. And Justinian, in lege hac consultissima 8. C. Qui testimenta facere possunt, allows a blindman to make a testament under the cautions there set down; and esto it were illegal, yet quoad præterita it must be sustained, by the lex Barbarius Philippus 3. D. De off. prætor., else all his executions would be null, which would endanger the securities of many in that place. And as to the second, Warnings within burghs are mainly by chalking the doors, and the solemnity of a written execution is not absolutely necessary to such tenements; and Purdie, if he pleases, may improve the execution, and he will abide at the truth of it. Replied, That I being a creditor on the land as well as you, my interest is sufficiently founded to hinder you to remove the tenant; and as to his capacity, though he be blind, it is impossible he can discern one house or person from another; neither could he swear on the verity of his execution; and lawyers are very clear, that a blind man cannot be a witness to a testament, or any other writ; for which Masardus, Farinaceus, and others, give these reasons, that he can neither see the party, nor the writ he is to attest, nor can depone about any thing that falls sub sensum visus. The Lords waving this point of his incapacity by blindness, did take it by the other handle, that Purdie's right was not within year and day of Rule's, and that his adjudicacation was expired, and he in possession, and not Purdie; and, therefore, found the nullity not competent for Purdie to object, unless he were either preferable, or pari passu, and therefore repelled it as jus tertii.
