Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 IRRITANCY.
Subject_3 Whether a suspension of a decree of removing be competent after symbolical ejection has taken place?

Lieutenant Archibald Campbell
v.
Duncan Macalister

Date: 16 January 1777

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[Faculty Collection, VII. p. 350; Dict. App. —; Irritancy, No. 1.]

Braxfield. If the decreet of removing had been carried into execution, we could not undo what has been done; but when the execution of the decreet is only dicis causa, the case is different.

President. I would hold by the forms of the law; but when I see the foundation of the diligence to be rotten, I would examine every thing. If the entry is at two terms, the removing also must be at two terms.

Alva. The moderation used in removings ought not to be considered as less effectual on that account. I should be sorry to see it go out as law in the Highlands of Scotland, that a man cannot be effectually ejected unless his goods are all thrown to the door, and he and his family turned out at the mercy of the seasons. The tenant here is not without a remedy, that of reduction.

Monboddo. I do not think that the ejection can be challenged as not sufficient. Symbolical ejection is that which is universally employed. Here the tenant is de facto removed; but there are other objections to the proceedings.

On the 16th January 1777, “the Lords repelled the objections to the competency, and upon the merits sustained the defences against removing.” [Unanimously.]

Act. Ilay Campbell. Alt. G. Wallace. Reporter, Alva.

Diss. As to competency, Kaimes, Alva, Hailes.