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Scottish Court of Session Decisions >>
M'Culloch v M'Culloch. [1626] Mor 6856 (27 July 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor1706856-011.html Cite as:
[1626] Mor 6856
Days, how computed. - Induciæ in a charge of horning. - Baron decrees. - Citations pro confesso. - Criminal sentences. - Induciæ before inferior courts. - Reductions and improbations. - Privileged summons. - Decree-arbitral. - Citation of tutors and curators.
M'Culloch v. M'Culloch
Date: 27 July 1626 Case No. No 11.
Although brieves are appointed to be proclaimed on 15 days, the Lords found it sufficient if either the day of proclamation, or the day to which they are served, be counted in the number of the days, and that they need not be both free.
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In a declarator of bastardy of M'Culloch contra M'Culloch, whereof mention is made, July 22.1626, No 12. p. 2703. the Lords found, that albeit it be required that the brieves be proclaimed upon 15 days warning, as is appointed by the 127th act, Parliament 9. Jas I., and by the 94th act, Parliament 6. Jas IV.; yet that the execution and space was sufficient, if either the day of citation, and whereupon the same was proclaimed, or the day to the which the said brieves were proclaimed to be served, were counted in the number of the said days, so that they needed not both to be free. In the same process also, the Lords found a brieve, whereupon a service was deduced, to be null, because the same was blotted and vitiated in the day of the execution, albeit the party user of the brieve offered to prove, that the same was truly executed upon the very day which the execution proported, as it was mended, and that he alleged, that the same could not be found null for that cause, seeing he might lawfully mend his execution as in all other citations and summons, where the party abides at the same; which the Lords repelled, in respect of the 113th act, Parl. 9. Ja. I., whereby it is declared, “That brieves may be lawfully impugned, if they be razed or blotted in suspect places,” viz. in the name and sirname of the follower and defender, and the name of the land, or of the cause whereupon the brieves were purchased, and the date; which act the Lords found to extend to the date of the execution of the brieve also, albeit the defender alleged it did only extend to the date of the brieve itself, and not to the date of the execution thereof. But the Lords repelled the same, and found the act should extend to the date of the execution, seeing a brieve not executed is not a brieve, and there can no exception be proponed while the same be executed; so that the act declaring what exceptions should be admitted against brieves, cannot mean but of brieves executed, and therefore the date of the brieve should comprehend the date of the execution thereof. See Proof.
Act. Nicolson & Lawtie.Alt. Aiton & Neilson.Clerk, Gibson.
Fol. Dic. v. 1. p. 467. Durie, p. 229.
