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Scottish Court of Session Decisions >>
Scrimzeour v Beatson. [1705] Mor 3758 (20 December 1705)
URL: http://www.bailii.org/scot/cases/ScotCS/1705/Mor0903758-103.html Cite as:
[1705] Mor 3758
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. IV.
Execution by leaving a Copy.
Scrimzeour v. Beatson
Date: 20 December 1705 Case No. No 103.
Execution of apprising was sustained, though it did not bear a schedule to be left on the lands.
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In a reduction of a comprising, pursued by Mr Harry Scrimzeour contra Beatson of Kilry, the following nullities were proponed against the executions; 1mo, That they were null, because they did not bear that a schedule was left on the ground of the lands.—Answered, That in the beginning of the execution, it bore that copies and schedules were affixed and left at all places needful; which generality being applied to all the subsequent condescendence in the execution, is sufficient to support it, though it be not mentioned in every particular, nor repeated. 2do, The execution was still null, because, by the 75th act, Parliament 1540, it is expressly required, that messengers executions bear, that they could not get entrance, and therefore gave six several knocks.—Answered, This point is in desuetude, and not in use to be expressed now in executions; but the knocking presumes and implies that the door was shut, and so he could not get entrance.—3tio, Alleged, All executions of apprising should bear three several oyeses at the market cross, whereas this bears only several oyeses without the word three; and for the want of this solemnity, the Lords found an execution of an inhibition and a summons null, 15th February 1681, Gordon contra Forbes, No 116. p. 3768.—Answered, ‘Several oyeses’ was the equipollent, and could not in common sense be interpreted of fewer than three. — 4to, Alleged, This execution was further null, the debtor being minor, and his tutors and curators are only interlined, and not in the body of the execution, —Answered, This has been done ex incontinenti, and not ex intervallo; because it is evident by ocular inspection, that it is done all with one hand and the same ink, and they are expressly mentioned in the decreet of apprising, which proves it has been insert before it was extended, and the executions are narrated there.——The Lords repelled all these four nullities, in respect of the answers, and sustained the executions of the apprising as both legal and formal. Some proposed to cause search the registers, and see how the generality of such executions run, that the stile might be known; but the Lords thought there was no necessity for such an inquiry.
Fol. Dic. v. 1. p. 265. Fountainhall, v. 2. p. 301.
