Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 REMOVING.

Shinas
v.
Fordyce

1777. August.

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In passing a bill of suspension of a decreet of removing by the Bailies of Banff at the instance of Shinas, treasurer to the Incorporation of Shoemakers in that Town, against Fordyce, it was pleaded that, qua boxmaster, Shinas had no title to pursue a removing. Answered,—He had a verbal order from the incorporation to do it; and a verbal order was sufficient. Further, cum processu, he produced a written order. Replied,—This last was of no avail: an authority, ex past facto, to raise a process of removing, is not sufficient; the authority must be antecedent. Admitted,—but in this case the written authority was only corroborative of the verbal. Objected further,—The defender had got no copy of the summons at citation, which is a form absolutely necessary—he only got what is called a short copy, and which even takes place in the Sheriff-courts, except in causes below thirty shillings value. Answered,— He was cited in common form, as practised in this burgh, and it is believed in most other burghs of Scotland. In burghs even verbal citations are held sufficient; here there was one in writing, which also mentioned the nature of the process, viz. that it was a removing. Besides, the cause was called in Court, and the libel given out to see more than forty days preceding the term of Whitsunday, the term of removal. Lord Gardenston refused the bill, 4th July 1777, and the Lords adhered.