Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 EXECUTIONS.

Orrock
v.
Peter

1769.

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Orrock having obtained decreet of removing before the bailies of the Canongate against Peter, Peter suspended, and inter alia pleaded, That the execution of citation on the summons was null, not having subscribing witnesses, nor indeed bearing that any witnesses were present; contrary to the statute 1686, c. 4. Pleaded in defence, That, notwithstanding of the statute, a contrary practice had prevailed in the inferior Courts of Scotland, and particularly in the Bailie Court of the Canongate: that, by the law of Scotland, practice, if universal and uniform, is sufficient to repeal a statute; and though not so universal nor uniform as to have this effect, yet might be sufficient to sanctify a practice, though erroneous, as to bygones, until that, by an Act of Sederunt, or other proper method, the error was corrected in futurum. The Lords therefore, before advising, ordained the parties to give in certificates, or other legal evidence of the practice. And these being given in from the Bailie Court of Canongate, and the sheriff and Bailie Court of Edinburgh, and found in general to agree with the directions of the statute, the Lords sustained the reasons of suspension, and suspended the letters simpliciter.