An advocation of a process of removing not having been produced till decree was pronounced, ejection following on the decree was found no contempt of authority.
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Marion Menzies, relict of Mr William Anderson, one of the ministers of Glasgow, executed a precept of warning against John Cuming, maltman of Gorbals, to remove from a house possessed by him, which her husband had entered to the civil possession of upon an adjudication, and disponed to her an annuity forth thereof, assigning her to the mails and duties.
John Wylie, cordner in Glasgow, on the title of another adjudication, had insisted against Mr Anderson, during his life, in a process of mails and duties, and transferred it against his son, who renounced to be heir; and John Cuming, who had been Mr Anderson's tenant, and on his death entered into payment to his widow, obtained a tack from John Wylie after he was charged to remove.
Mrs Anderson insisted in an action of removing before the town-court of Glasgow, the citation being 24th May, obtained decreet, and charged thereon the same day to remove within twenty-four hours, the principal warrant being delivered for that purpose without extracting. An advocation of the removing and ejection, or other action that might be intented on the warning, was presented on the 25th, and refused to be admitted after decreet pronounced; and the time of the charge being expired, Cuming was ejected upon a warrant from the Bailie.
Wylie and Cuming gave in a complaint against the Bailie, clerk, and party, for that Mrs Anderson, who was only an annuitant, had no title to pursue a removing. The decreet was pronounced on the same day with the summons, and the principal delivered to the officer; so that when a petition was offered next day, the clerk had no process in his hands, and no signature was made upon it; and though the ejection was advocated, yet the Bailie proceeded to determine therein after producing the advocation.
Answered; Mrs Anderson had an assignation to the mails and duties from her husband, who had a title to possess; but whether she had right to remove tenants or not, there was no ground for a complaint, if the Bailie thought her title good, though he might be mistaken; he pronounced a decreet of removing, which in burghs behoved to be very summary, as one person not removing might throw many into confusion; and hence it was the custom of this burgh without staying for extracting, to deliver out the warrant to charge. The petition had been refused by the Bailie, either as incompetent after decreet pronounced, or not moving him to change his interlocutor, and the advocation could not be received after decreet. The ejection was no action, but the execution of the removing; which the Lords of Session grant upon a bill, and therefore it was absurd to advocate it; and to make an advocation stop execution, would be giving it the force of a suspension.
The Lords, 10th July, “found there was in this case no contempt of authority.” And
This day refused a bill, and adhered.
Act. Lockhart.Alt. W. Grant.Clerk, Kirkpatrick.
D. Falconer. v. 1. No 279. p. 373.
