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Scottish Court of Session Decisions >>
George Mouat, Petitioner. [1710] Mor 12088 (17 June 1710)
URL: http://www.bailii.org/scot/cases/ScotCS/1710/Mor2812088-193.html Cite as:
[1710] Mor 12088
In case of necessity, reading in tire minute book may be dispensed with.
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George Mouat of Hammer in Zetland, gives in a bill to the Lords, representing that William Mouat of Balquholly his cousin, having lately deceased, he has served himself heir-male and of tailzie to him cum beneficio inventarii, and that by the 24th act 1695, he must within year and day of his predecessor's death make up inventories of the lands and estate whereto he succeeds, and depone thereupon before the Sheriff of the shire where the lands lie; and that Balquholly lies in the shire of Aberdeen, and he has dwelt these fifty years in Zetland, and, by testificates produced is wholly unable to travel from his own house to Aberdeen; besides that their coast is full of pirates, that there is little safety in sailing, so that necessary it is that he have a commission to depone at home, which the Sheriff of Aberdeen refuses to grant him, alleging he must, by the act of Parliament, compear and depone before him: Therefore craves the Lords would either authorise the Sheriff to direct his commission, or grant it themselves, for his deponing at home, to be reported back to the Sheriff within the year of deliberation, and recorded in his books. The Lords saw the case was new and unprecedented, being the first of this kind demanded since the act was made; yet thought where the heir lived at such a distance, and was valetudinary, there behoved to be a remedy; and therefore yielded to a commission, but demurred if they or the Sheriff by their authority should grant it, and thought it easier to direct it straight to the Stewart-depute of Zetland themselves, to be reported to the Sheriff of Aberdeen. But it being further represented, that the occasions going thither were very rare, especially now in the time of war, and that there was a fleet ready to sail from Leith to the Orkney isles, with which the commission might be sent, and if that were lost, it may be another occasion would not offer this summer, so he should not get it reported within the year, and so lose the benefit of the act of Parliament; and therefore craved the commission might be allowed to be extracted, and given him before it came to be read in the minute book, otherwise he might lose the opportunity of this fleet. The Lords on this specialty dispensed with its being read in the minute-book; though regularly nothing should be extracted till 24 hours after it has been read there, to give due advertisement to all parties concerned.
Fol. Dic. v. 2. p. 191. Fountainhall, v. 2. p. 577.
