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Rae v Douglas. [1628] Mor 3754 (19 November 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor0903754-094.html Cite as:
[1628] Mor 3754
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. IV.
Execution by leaving a Copy.
Rae v. Douglas
Date: 19 November 1628 Case No. No 94.
A charge given to two Bailies of a Regality, to take a rebel then present with them, was sustained, though the execution bore, ‘that one copy was delivered to one of the Bailies for himself and for the other Bailie, they being both present together.’
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In this process, charges being executed by a creditor against two Bailies deputes of a regality, which being suspended by one, upon this reason, That the charge and execution bore not, that a copy was delivered to him that suspended, this reason was not sustained, because the execution bore, “That both the Bailies were standing together, and the rebel in their company with them then, when charged personally to take the rebel at the creditor's instance, and that a copy was delivered to one of the Bailies for himself, and for the other Bailie, they being then both present together;” which execution was found sufficient, albeit a copy was not delivered to each of them; and the letters were found orderly proceeded against both, they being conjunct in the office, and being both present together.
This same day, in this same process, betwixt the same parties, a charge given to the Bailies to take the rebel, execute upon a Sunday, was not sustained, and the Magistrate found needed not to obey that charge; but because it was replied by the charger, That the rebel was thereafter upon other lawful days since the day of that charge, in the company of the Bailies now charged, within some part of his jurisdiction, and which was referred to the Bailies' oath, this reply was sustained to fortify the said charge; which, although it was not of that force, being execute upon a Sunday, that might compel the Bailies to give obedience on that day, yet that was found sufficient to make him liable in law; for his accompanying with the rebel thereafter, within his jurisdiction, and then not doing his duty to take him, which was admitted, being referred to his oath; and the Lords declared, if he should depone and declare by his said oath, that at that time he accompanied with the rebel, he had not power then to take him, as if he had been better horsed, or more people with him, or that being in the fields the Bailie was alone, or such like other considerable circumstances, that the Lords would, at the advising of the cause and oath, have regard thereto, and consider if the defender had probability of excuse for not taking the rebel.
Act. Belshes.Alt. ——.Clerk, Scot.
Fol. Dic. v. 1. p. 265. Durie, p. 397.
