Scottish Court of Session Decisions

Subject_1 EXECUTION.
Subject_2 DIVISION VII.

Clauses implying or importing particular legal steps of execution.

Morrison, &c
v.
Dempster, &c

Date: 14 February 1694
Case No. No 158.

An execution of inhibition was sustained, though it wanted three oyesses, it bearing public reading and open proclamation, which last imported three oyesses.

Click here to view a pdf copy of this documet : PDF Copy

Rankieler reported David Morison, Sir Alexander Bruce of Broomhall, and the other creditors of Darsie, contra Sir John Dempster of Pitlever, and Patrick Steel, for reducing Mr Hary Blyth's inhibition on that estate, and his decreet of reduction obtained on that inhibition in 1675.——The Lords found in such reductions there was no necessity of citing authors, nor of calling the party inhibited and his heirs, but only him, who, contrary to the prohibition of the said inhibition, had received a right from the inhibited person; and so there was no need of calling Spottiswood's heirs in that process. Next, they found that no creditor compearing in that process of reduction pursued by Dr Blyth, ex capite inhibitionis, could be admitted now to quarrel and impugn the said inhibition, being there competent and omitted; but that a creditor or two, giving in a bill in name of the rest, did not include the rest, unless they were also named; though some of the Lords argued, that it was res judicata, not only against the party called as defender, and his heir, but also against his creditors, though not called, else res judicata would signify little. It was yielded, that this held against personal creditors, but not against real creditors standing infeft. Then the Lords entered on the reasons of reduction against this inhibition, viz. That it wanted three oyesses, which, though required by no law, yet is introduced by a clear custom; and here were cited 11th July 1676, Stevenson, No 145. p. 3788.; and Lundy against Trotter, voce Proof.——The Lords, in this case, followed the last decision, and sustained Blyth's inhibition, in regard it bore there was open proclamation (which could be nothing but the oyesses to seek attention,) and then the public reading, especially being in re tam antiqua, viz. in 1640, that neither messenger nor witnesses were alive, to be examined if that solemnity of the three oyesses was used; and though they had, could not post tanti temporis intervallum remember such a circumstance.—Then it was objected, That by the 33d act, 1555, the messenger should demand entrance, or deliver a copy to the party's servants or wife, which this execution did not bear.——The Lords found this no nullity, seeing that presupposed the door was open; but where the door is found shut, he is only to knock six knocks, which was equivalent, and that was observed here.

Fol. Dic. v. 1. p. 270. Fountainhall, v. 1. p. 608.