Scottish Court of Session Decisions

Subject_1 EXECUTION.
Subject_2 DIVISION VII.

Clauses implying or importing particular legal steps of execution.

Stuart
v.
Achanay

Date: 22 July 1626
Case No. No 155.

An execution of charge, which bore that the messenger delivered a copy to the party, was sustained, as implying personal execution.

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In a declarator betwixt Stuart and Achanay, the horning whereupon declarator was sought was alleged to be null, because the charge bore not “that the party was either charged personally, or at his dwelling-place;” and whereas the charge bears, ‘that the messenger delivered a copy to the party charged,’ that ought not to sustain the charge, seeing the same could not be found lawfully executed, except the messenger had expressly set down in his execution, that he charged him personally apprehended,’ no more than an execution could be found lawful, where the charge bears not, “that the messenger had affixed his stamp thereto,” albeit the stampt was affixed thereto. This allegeance was repelled, and the horning found sufficient, bearing, “that a copy was delivered to the party,” which could not have been, but by a charge given to him personally apprehended.

Act. ——. Alt. Belshes. Clerk, Scot. Fol. Dic. v. 1. p. 270. Durie, p. 224.