Scottish Court of Session Decisions

Subject_1 EXECUTION.
Subject_2 DIVISION III.

Execution in the Night Time.

Mr William Gordon, and Elisabeth Wood, his Spouse,
v.
Sir William Hope

Date: 10 November 1703
Case No. No 76.

An ejection, begun to be executed a-bout break of day, illegal.

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Sir William Hope having obtained a decreet of removing from the house of Balcomie, against Mr William Gordon, and thereupon having charged and denounced him, he obtained letters of ejection, which he did execute upon the 9th of October 1702.

Mr William and his wife did raise a complaint before the Lords of Session, that the said ejection was not only executed with the utmost rigour, dragging his wife violently out of the house, when he was in prison, and using the children no better; but likewise that the same was illegal, being done in the night time, at least before the rising of the sun. Whereupon The Lords, before answer, “allowed a mutual probation to either party, for proving the precise time of the day at which the ejection was executed, and whether before or after sun rising; and likewise to prove the custom in burgh and landwart in the like cases.”

It did appear by the probation, that the ejection was executed with great rigour; and Sir William's instrument of ejection bore to have begun betwixt six and seven in the morning, upon the 9th of October; and the current of Mr William's witnesses proved, that the same did begin at the break or point of day; and there was no condescendence or probation of any custom or practice of executing ejections in the night-time, or after sun-setting, or before the rising thereof.

It was alleged for Sir William; That whatever might be the rigour of the execution, be could not be charged with that; because he was neither present, nor would have allowed any hardship to have been done to the lady or children; but the nature of that diligence is rigorous against such as are disobedient, and continue their possession in contempt of the law; so it may be executed at any time of the night or day, for the same reasons that captions are allowed to be executed in the night time, and much more in the case of ejections; because indigent debtors have not wherewith to pay their debts; but it is always in parties power to remove from a possession, to which they are found to have no right. 2do, By the probation it appears, that it was day-light before the ejection was begun, and that the sun was up long before the same was finished.

It was answered; That the common rule is, that all legal executions should be used in the day-time; and therefore poindings in the night are found to be illegal. And as to the instance of captions, there is no parity; because debtors disobeying the law are in use to lurk, and appear not in the day time, and it is necessary to apprehend them where, and whensoever, they can be had, and therefore there is a known and uniform practice of executing captions in the night-time; but the effect of an ejection being to make a house void and redd, if the party to be ejected be not found there, there is so much less to be done; and, it being necessary that goods, plenishing, papers, and every thing that is found in the house, be taken out, the same must be done in day-light, that there may be no embezzlement, and that the goods may be carried safely to convenient places.

And as to what is alleged, that it was day light before the execution was begun, and full light and up-sun before it was finished;

It is answered, The beginning of the execution is to be considered, which being unlawful, renders the whole proceeding illegal; as has been often found in the parallel case of poindings.

2do, The proper time for such executions is betwixt sun and sun; and, if the probation were any ways dubious, whether the sun was up or not, when the execution began, then it might be favourably constructed, that the act was legal; but, seeing it appears that the execution began about the break of day, it is to be reckoned as done in the night, and illegal; for the known, clear, and certain periods of the law, are betwixt sun and sun; otherwise such executions might proceed for two months, at least, before and after mid-summer, at any time in the night; and there cannot be any fixed period, or certainty of the break of day.

3tio, As this is clear in law and reason, so there is no condescendence or probation, that the like was practised before or after the sun.

The Lords found the ejection illegal; and ordained Mr William Gordon to be repossessed.

Fol. Dic. v. 1. p. 263. Dalrymple, No 37. p. 46.

*** See this case by Fountainhall, voce Legal Diligence.