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Scottish Court of Session Decisions >>
Hay v Gicht. [1634] Mor 3782 (11 July 1634)
URL: http://www.bailii.org/scot/cases/ScotCS/1634/Mor0903782-137.html Cite as:
[1634] Mor 3782
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. X.
Executions which require not the Ordinary Solemnities. - Form of arresting a Ship. - Verbal Citation.
Hay v. Gicht
Date: 11 July 1634 Case No. No 137.
A citation of a tenant to his master's Baron-court may be proven by witnesses.
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In a reduction of a decreet obtained by the L. Gicht, against one Hay, his tenant, in his own Court, for payment of farms confest resting owing by Hay, upon this reason, because the tenant was never cited, and there was no citation nor execution extant to qualify the same; in this process the Bailie, pronouncer of the decreet, and the clerk thereto, and the officer, executor of the poinding execute thereupon, being called, and being all deceased now lite pendente, before this process was discust, whereby the defenders alleged, that the process should cease, while the same were transferred in some person to represent them; this allegeance was repelled, and the Lords found no necessity of transferring especially seeing nothing was concluded against the judge for wrong done, nor no reason libelled thereon, and that the party ought to be answerable for the warrant of his own sentence; especially the Baron's self being the obtainer thereof, in his own court, before his own Bailie, the members of the court being of his own creation. Item, The defender offering to prove against the reason of reduction, that the defender in that decreet, viz. the tenant, was summoned to the giving thereof, and that he offered to prove it by witnesses; the Lords found this allegeance relevant to sustain the decreet, and that it was relevant to be proven by witnesses, and that there was no necessity to prove the same by writ; for in such acts and procedures, before Baron Bailies, in Baron Courts, the Lords found no necessity that there should be any citation extant in writ, seeing the citations in such courts are frequently done by verbal direction, and if it can be proven that the tenants be truly cited, albeit not in writ, it is sufficient.
Act. Advocatus & Mowat.Alt. Nicolson & Baird.Clerk, Hay.
Fol. Dic. v. 1. p. 269. Durie, p. 725.
