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Andrew Baillie of Parbroath v Robert Nisbet of Greenholm, and Archibald Nisbet of Carfin. [1713] Mor 3745 (8 July 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor0903745-082.html Cite as:
[1713] Mor 3745
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. I.
Designation of the Parties.
Andrew Baillie of Parbroath v. Robert Nisbet of Greenholm, and Archibald Nisbet of Carfin
Date: 8 July 1713 Case No. No 82.
Execution of an inhibition was sustained, though it did not design the parties other ways than by relation to the letters.
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In a reduction ex capite inhibitionis, at the instance of Andrew Baillie against Robert and Archibald Nisbets, the defenders objected three nullities against the execution of the inhibition, viz. 1mo, It doth not design the party at whose instance the inhibition was used, nor the party against whom, otherways than by a general relation to the letters, contrary to the act of Parliament 1672, which, though it mention only executions of summons, includes also executions of inhibitions, horning, and the like; summons and letters being terms of promiscuous use in our law, as is clear from act 45th Parl. 5th James V., and the act 40th Parl. 1695, act 32d Parl. 1469, act 74th Parl. 1540. 2do, The execution doth not bear delivery of a subscribed copy to the party, which is a necessary solemnity by act 141st Parl. 12th James VI.; for when an execution doth not bear, that the formality required by law was used, it is presumed against it, that such a formality was omitted. 3tio, The execution doth not bear that there were any witnesses to leaving of the copy, but only to its affixing.
Answered for the pursuer; 1mo, The act 1672 relates only to summons the commencement and continuation of processes before the Lords of Session to different diets of compearance to pursuers and defenders, &c. Now, there are no such terms used with respect to inhibition, which is a complete security by the execution and publication, and cannot be regulated by the statute aforesaid. 2do, Law doth indeed require, that copies of summonses and letters delivered to parties, be signed by the executor, but not that the execution expressly bear, that the copy delivered was signed. 3tio, If the messenger after narration of his having left and affixed a copy, and used the other particular solemnities, had said no more but ‘before these witnesses, &c.’ and the witnesses had subscribed the execution, it had been certainly good. Now, his saying ‘witness to the affixing,’ can never wrong the execution, which had been good without it: more than it could be quarrelled as null for not bearing, ‘That they were witnesses to the open and public reading and crying of the oyesses,’ which are likewise said to be done in the execution. The Lords repelled the nullities, and sustained the execution.
