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Royal Burgh Subject_4 Procedure in Burgh Court — Act of Sederunt 10 th March 1849 — Appeal. Facts: A petition by a landlord to have his tenant ordained to plenish his house, and for warrant for his ejection in the event of his failing to do so, is competent in a Burgh Court.
Where the procedure prescribed by the above-mentioned Act of Sederunt had not been strictly complied with by the magistrates of a royal burgh— held that as the penalty of nullity was not prescribed to follow on the non-observance of its provisions, and as the party complaining of the non-observance had acquiesced in the procedure and taken a judgment on the merits, an appeal on the ground that the proceedings were incompetent fell to be refused.
He pleaded that the Burgh Court had no jurisdiction in such an application, and also that the proper procedure being a special form provided by Act of Sederunt for such applications, and the petition not being in conformity therewith, it should be dismissed.
The Act of Sederunt 13th February 1845, as to records in the Courts of royal burghs and burghs of barony, provided (sec. 5), that in all summary applications to be presented in the Burgh Courts… “the petition shall state generally (as in the present form of a note of suspension before the Supreme Court) the subject of complaint, setting forth specifically in the prayer the remedy craved,” and that there shall be annexed to the petition an articulate statement of facts with note of pleas-in-law.
The Magistrates repelled the preliminary pleas, and allowed a proof, after which they found that the respondent was tenant of the house under the lease, that it was in good tenantable condition, and that the respondent had failed to occupy and furnish it. They found in law that he was bound to occupy and plenish it, and ordained him to place such plenishing in it to the satisfaction of the Court, and that within eight days. The interlocutor allowing this proof fixed the date of proof, but did not state the place at which it was to be taken.
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