Scottish Court of Session Decisions

Subject_1 REMOVING.
Subject_2 SECT. III.

Warning, in what Cases necessary. - How to be executed.

Mr William Gordon
v.
Lermont of Balcomy

Date: 7 December 1686
Case No. No 72.

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Mr William Gordon Advocate pursuing a removing against Lermont of Balcomy, it was alleged, The warning was null by the 39th act of Parliament 1555, because it bore not that the party was warned on the ground of the lands. Answered, The party was warned either personally, or at their dwelling-house, and a copy was left on the ground of the lands, and this being real coutra fundum was enough. The Lords, on report, found it sufficient.

Fol. Dic. v. 2. p. 337. Founiainhall, v. 1. p. 434. *** Harcarse reports this case:

It being alleged against a warning made in July 1684, for removing at Whit-sunday 1685, That the warning was not lawful, not being made within the year of the term of removing, and also made 40 days before the said term, and so disconform to the order appointed by act 39th, Parl. 6. Queen Mary;

Answered; The meaning is, that warning should be used within a year or twelve months of the term of removing, and not that both should be in the same year of God.

The Lords repelled the defender's allegeance as frivolous and captious.

Harcarse, (Removing.) No 842. p. 241.