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Mr Jollie was proprietor of a dwelling-house, situated near Picardy, in the suburbs of Edinburgh, in which Stevenson was his tenant. Forty-one days before the term of Whitsunday, Jollie caused a burgh-officer of the city to warn Stevenson to remove; and this warning the officer performed in the manner of chalking the door, having afterwards reported his proceeding in a written execution. Jollie next brought an action before the Sheriff for having Stevenson ordained to remove; which coming into the Court by advocation, it was
Pleaded by the tenant; It is indeed admitted that the statute 1555, cap. 39. ought not to be applied to houses within burgh. This exception has arisen from uniform and inveterate custom. But the rules prescribed by the statule admit no other limitation which does not proceed from necessity. Thus, though the particular solemnities relative to lands, are inept with respect to a dwelling house, yet all the other requisites of the act are equally applicable to such houses as are not situate within a burgh, as they are to lands. This distinction is laid down by Mr Erskine, B.2. Tit. 6. § 47,; and by Lord Bankton, B.2. tit. 9. § 53. The statutory requisites, therefore, not having been complied with on this occasion, it is clear that the warning in question is illegal and void.
Besides, a town-officer has no power beyond the bounds of the Magistrates' jurisdiction. This warning, then, can have no more effect than if any private individual, by the landlord's direction, had given it.
Answered; As it has been admitted, that the act 1555 does not extend to houses within burgh, so it is likewise certain, that it relates to lands solely, and not at all to houses, though situated in the country; December 19. 1758, Lundin contra Hamilton No 86. p. 13845. Nothing, therefore, but sufficient evidence that timeous warning has been given by the landlord to his tenant, whether verbally or by writing, is necessary to found an action of removing from a dwelling-house unconnected with lands; Tait contra Sliga, July 3. 1766, No 105. p. 13864. And, accordingly, though it has been usual for burgh-officers to give warning by chalking the doors within burgh, yet the authority of a Magistrate is not required for that purpose; so that the ceremony itself seema not to be of any necessity; June 24. 1709, Barton contra Duncan, No 75. p. 13832.
The Lords found ‘the warning sufficient and remitted to the Sheriff with an instruction to decern in the removing.’
Lord Ordinary, Westhall.Act. Cullen.Alt. H. Erskine.
Fol. Dic. v. 4. p. 224. Fac. Col. No 73. p. 127.
