Scottish Court of Session Decisions

Subject_1 REMOVING.
Subject_2 SECT. V.

Upon what number of days.

M'Brair
v.
Sir Robert Crichton alias Murrat

Date: 20 February 1666
Case No. No 101.

Removing sustained on a warning of 40 days, altho' the party was out of the country.

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David M'Brair pursues a removing against Sir Robert Crichton, who alleged absolvitor, because the warning was null, in so far as he being notourly out of the country, the warning proceeded on 40 days, not only at the ground and parish-kirk, but also at his dwelling-house, whereas it ought to have been on letters of supplement on 60 days, at the, market-cross of Edinburgh, pier and shore of Leith. It was answered, That the act of Parliament anent warning was only on 40 days without distinction, being out of the country, or in the country; and it was sufficient that the summons of removing upon the warning was upon 60 days, because the warning at the house was rather an intimation than a citation, which was sufficient, seeing the defender had been but short while out of the country, not animo remanendi and so had still a domicile where he was cited.

The Lords sustained the warning; but, in respect the defender had probabilem causam dubitandi, they superseded the execution till next Whitsunday, without any violent profits.

Fol. Dic. v. 2. p. 337. Stair, v. 1. p. 360.