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Sir John Dempster of Pitliver v Mr John Mackenzie of Assent. [1696] 4 Brn 336 (3 December 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040336-0716.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir John Dempster of Pitliver v. Mr John Mackenzie of Assent
Date: 3 December 1696
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Sir John Dempster of Pitliver craves, by a bill to the Lords, a warrant for an edictal citation of Mr John Mackenzie of Assent, brother to my Lord Seaforth, on a summons to pay a debt, because he had failed to present the Countess, his mother, conform to his bond, and, to frustrate it, had retired with his family to the Lewis, where no messenger durst go to cite him, and therefore craved, in the terms of the 65th Act, Parliament 1587, they might be allowed to cite at the market-cross of Inverness, as the nearest burgh-royal in the Lowlands, there not being tutus accessus whither he had retired. Answered,—That Act of Parliament is only in favours of the King's causes. 2do. It can only take place when the Highlands are broken. Replied,—If the King need to use that extraordinary remedy, much more ought it to be indulged to the subjects. 3tio. It has been often granted cum causœ cognitione, 29th June 1666, M'Pherson against M'Leod; and lately, in the Criminal Court, the Justiciaries granted an edictal citation to the Laird of M'Intosh against M’Donald of Keppoch and his Accomplices; and Maranta de Judiciis, Part 6, allows this way, ubi locus non est securus. It was urged, That this might be very prejudicial to the inhabitants of these remote parts, for warrants might be thus sought for citing them which may never come to their knowledge, and so decreets pass against them. But the Lords thought John, in his brother Seaforth's land, would be difficilis conventionis; and therefore granted Pitliver's bill for an edictal citation against them.
