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Scottish Court of Session Decisions >>
Hugh M'Culloch v Mr. John Craig. [1665] Mor 15791 (2 December 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor3615791-019.html Cite as:
[1665] Mor 15791
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Hugh M'Culloch having right to an apprising of an heritable bond of 2000 merks, due by umquhile Mr. Robert Craig to Patrick Wood, pursues Mr. John Craig, as heir by progress, for payment thereof, and produces a new extract of the apprising, by the clerk of the apprising, together with the said apprising, but so spoiled, that neither the subscription of the messenger nor clerk could be known. The defender alleged, No process, till the principal apprising by the messenger were produced; because it being in effect the executions of the messenger, to whom more was trusted than the clerk, the extract by the clerk, without the messenger, was not sufficient. It was answered, That apprizings, of old, were all directed to the Sheriffs of the shire, and were in effect judicial processes, wherein parties were cited, called, and decerned ; and now, the messenger being constituted Sheriff, in that part, by the letters of apprising, he may choose his own clerk; and the extract of that clerk is sufficient, as of all other clerks; and albeit, for more security, both clerk and messenger subscribe, yet it hath not been determined how far the messenger’s subscription is necessary ; and the decree of apprising is not the executions of the apprising, which are distinct therefrom, and instructions thereof.
The Lords thought that the new extract behoved either to be astructed with the letters and executions, and other adminicles, or that they would not sustain it alone. But the question was, Whether it should be astructed, hoc ordine, or by a proving of the tenor, in a several process ? which was carried by the plurality.
