Whether Executorial of Ejection may proceed without a Charge?
Pringle v. The Earl of Home
Date: 13 July 1739 Case No. No 137.
The executorial upon decrees of removing may proceed without a charge, or even extracting the decree.
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The Earl of Home pursued in a riot and for damages, for having ejected Gilbert Pringle upon a decree of removing, obtained before the Sheriff of Berwick, without a previous charge upon the decree of removing, and even before the decree was extracted, was assoilzied.
Our old lawyers, Balfour and Hope, seem to agree, that by the practice in their time, a charge upon the decree of removing must have preceded the precept of ejection; but as Sir George M'Kenzie observes, a charge is now necessary only upon decrees of removing pronounced by the Lords, but not upon decrees of removing before inferior courts, which also are in use to issue their precepts without putting the party to extract. How this change in the practice of removings upon inferior decrees came about, is not known, but that decrees of the Lords still require a charge is plain, for the Lords never execute their own decrees, as Sheriffs do.
