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Scottish Court of Session Decisions >>
Inglis v Haddoway. [1676] Mor 8339 (19 December 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor2008339-015.html Cite as:
[1676] Mor 8339
Can Executions be Amended after being produced in Process? - Executions of Legal Diligence after Registration.
Inglis v. Haddoway
Date: 19 December 1676 Case No. No 15.
Inhibition not found null, because the execution did not design the dwelling house, it being afterwards designed and abidden by.
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James Inglis having pursued reduction ex capite inhibitionis against John Haddoway, the defender alleged absolvitor, because the inhibition is null, the execution at the market crose not bearing ‘a copy affixed upon the cross,’ which is requisite in all executions; and upon a less informality, an inhibition against Caskieben was found null, because a copy was not delivered to the party inhibited, in the process at the instance of Keith of Caskieben against Johnston, decided upon the 28th of July 1671, No 143. p. 3786.—It was answered, That the not affixing a copy when the law requires it, may be a nullity, as in executions at the dwelling house in absence; but there is no law requiring the affixing of an execution of an inhibition upon the cross; nor is there any such thing required by the act of Parliament 1581, cap. 119.; and therefore it hath been the constant custom to have executions of this tenor, without mention of a copy left or affixed at the market cross. But it hath been the constant custom to give a copy to parties inhibited; and the delivery of a copy to the party in Caskieben's case, was not in the execution when it was registrated, but added by the messenger's hand ex post facto; whereas here the registration is a sufficient intimation to the lieges.—It was replied, That there are many nullities by common law without statute, in case any necessary solemnity be omitted; and as to that act of Parliament, there is nothing prescribed as to the executions of inhibitions in it, nor in any other act, but only as to the registration; and as to the custom, it is denied, and though it were, it is an unwarrantable and an evil custom.
The Lords did appoint by act of Sederunt, that in time coming, the executions of all inhibitions should bear a copy affixed upon the cross, or otherwise they should be null: But as to this, or preceding inhibitions, the Lords allowed either party to produce any executions they thought fit, to clear what had been the custom in that case.
December 22. 1676.—In this dispute, the 19th instant, it was further alleged, That the inhibition was null, because, being executed at the dwelling house of the person inhibited, the dwelling house was not designed; upon which reason hornings have been found null, and inhibitions are of more moment.—It was answered, That horning is more odious and penal than inhibition, which doth the debtor no hurt, and is an execution for securing of creditors, and therefore the Lords may justly supply it, by condescending on the dwelling house, which is only necessary as a mean of improbation; and here the execution bears, that the person within-written was inhibited, and in the body he is designed; and therefore it must be presumed his dwelling house was according to his designation.
The Lords found, That the designation was not in such a place, but of such land; and yet they sustained the execution, upon designing the dwelling house and abiding by the same, as the true place of execution.
Fol. Dic. v. 1. p. 552. Stair, v. 2. p. 480. & 484.
