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Scottish Court of Session Decisions >>
The Creditors of Ogilvie of Boyn v The Earl of Seafield. [1709] 4 Brn 741 (23 February 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040741-0240.html Cite as:
[1709] 4 Brn 741
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Creditors of Ogilvie of Boyn v. The Earl of Seafield
Date: 23 February 1709
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The Earl being donatar to the single and liferent escheat of Ogilvies, elder and younger of Boyn; the other creditors raise a reduction of the execution of the horning, the ground of the gift, because it neither bears a copy left nor delivered.
Answered,—This is no nullity, for it bears, “the messenger left a just and authentic in the lock of the door;” and though the word “copy” be omitted per incuriam scriptoris, yet it could be no other tiling but the copy, and may be supplied as well as the oyes may be interpreted to be three oyesses: and authentic is a word of various signification, according to the subject matter to which it is applied. In the laws of the Code, an authentic there is understood of authentic legislative constitutions; and so of the Scriptures; and, here, what sense can be affixed to this adjective but the substantive copy?
Replied,—The mentioning a copy is inter substantialia of a citation; and hornings, being a penal confiscation of moveables, are to be strictly taken, for the ease of indigent debtors, and not to be extended.
The Lords found it a pure omission; and, therefore, repelled the nullity, and sustained the execution.
