Warning, in what Cases necessary. - How to be executed.
Euphan Bartoun, Relict of John Beiglie, Stationer, v. Charlis Duncan, Jeweller in Edinburgh
Date: 24 June 1709 Case No. No 75.
A particular precept from a Magistrate not necessary to authorise an officer to warn persons within burgh, by chalkirg their doors.
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In a reduction, at the instance of Euphan Bartoun against Charles Duncan, for reducing a decreet of removing from a shop in Edinburgh, obtained by Duncan against her, upon this ground, That she was no otherwise warned, than by an officer chalking the door at his own hand, without any warrant from a Magistrate, or intimation to her; and a verbal order, at least from a Bailie, is necessary to authorise an officer to chalk doors, in order to removing, Craig de Feud. Lib. 2. Dieg. 9. p. 197. (Edition 1655). Stair Instit. Lib. 2. Tit. 9. § 40.
Answered for the defender, Personal intimation of warnings, within burgh, was never thought necessary, Craig, page 197.; and chalking the door, which bears the public officer's name, is a better intimation, than executing at the dwelling-house, by putting a copy in the lock-hole of the door. The warrant of a Bailie is not necessary to authorise an officer to chalk doors; but that burgher-solemnity is executed of course by the town-officers, by virtue of their office, upon application of heritors, and others interested.
The Lords repelled the reason of reduction, and found no necessity of a particular precept or order from a Magistrate, to authorise an officer to warn persons within burgh by chalking their doors, in respect, 1. The public town-officers are in use to summon persons to the Bailie Court without a Magistrate's warrant; 2. As a precept, under the master's hand, is a sufficient ground to warn tenants to remove from land in the country, an heritor's verbal order to an officer within burgh, where a verbal order to warn sufficeth, is sufficient without the warrant of a Bailie; 3. The Magistrates of Edinburgh, in the beginning of the year, use to give a general order to their officers to chalk doors, when required by landlords; and what Craig says, may be understood of that general order.
Fol. Dic. v. 2. p. 336. Forbes, p. 336.*** Fountainhall reports this case:
1709. June 25.—Charles Duncan, jeweller in Edinburgh, having right to a shop in the Parliament close from one Penman, he pursues Eupham Barton, the present possessor, to remove. She objects, The warning is null, not bearing, that the officer had any warrant from a Bailie to do it, which Craig de Feud. page 197. in actione de migrando, requires as necessary, ut officiarius urbis publicus sit Balivi mandato instructus; and Stair, Tit. Tacks, § 40. requires the same, yet the acknowledges it is done by the symbol of chalking the doors, without giving any intimation or written copy to the party warned. Answered, There is neither law nor custom within burgh, requiring a personal intimation of the warning, or that the officer's execution should bear the Bailie's mandate to him, which is presumed, and is a general warrant and order to execute all such warnings, by chalking the doors, whenever they are employed, and needs no others special mandate. The Lords repelled the objection, and sustained the warning.
