Scottish Court of Session Decisions

Subject_1 EXECUTION.
Subject_2 DIVISION IV.

The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. III.

Whether the Execution must bear the date of the Letters.

Sir Robert Forbes and his Factor,
v.
George Watson, Merchant in Edinburgh

Date: 16 February 1711
Case No. No 92.

An execution of letters of intimation of an assignation was sustained, tho' it was written on a paper apart, and did not mention the date of the letters of intimation.

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In the competition for arrears due out of the equivalent, to several captains in Colonel George Hamilton's regiment of foot, betwixt Sir Robert Forbes, who, as donatar of the escheat of Alexander Forbes, merchant in Edinburgh, creditor by bond to these officers, had arrested their arrears in the hands of the commissioners of the equivalent; and George Watson, to whom the officers' bond was assigned by Alexander Forbes, and the assignation intimated to the officers, (they being out of the country) by letters of intimation executed at the market-cross of Edinburgh, pier and shore of Leith, before the donatar's arrestment,

Alleged for Sir Robert Forbes; He ought to be preferred to Mr Watson, though the latter's assignation was intimated before the other's arrestment; because the execution of the intimation was null, bearing for its warrant, “conform to the within written letters of intimation of the assignation in favours of George Watson, merchant in Edinburgh, raised at his instance, and made to the said officers in Colonel George Hamilton's regiment;” but not mentioning the date of the letters, though the execution be upon a paper apart; and executions relating generally to the summons are not to be sustained, act 6. Parl. 2. sess. 3. Ch. II. in fin.

Answered for Mr Watson; Neither statute nor custom hath made it necessary for an execution of intimation to bear the date of its warrant. As to the act 1672, ordaining executions to bear the pursuer's and defender's designations, that is by practice restricted to the executions of summonses, and never extended to those of inhibitions, intimations, or other letters; and, as Sir George Mackenzie observes upon the act, though the Lords did not sustain an execution relating in general to the warrant; yet thereafter, upon helping the execution and the messenger's abiding by it, they allowed the same.

The Lords repelled the objection against the execution of intimation of Mr Watson's assignation, that it being on a paper apart, did not bear the date of the letters which are the warrant thereof. See No 11. p. 3687.—See This case by Bruce, voce Intimation.

Fol. Dic. v. 1. p. 264. Forbes, p. 500.