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. I.

Designation of the Parties.

Sir William Dunbar, and Others,
v.
John M'Leod younger of M'Leod and Others

Date: 20 February 1755
Case No. No 84.

Where an execution is written on the back of the summons, it is not necessary to design the defenders.

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A double election of Magistrates and Councillors in the burgh of Forres, occasioned a process at the instance of the one set, headed by Sir William Dunbar as Provost, against the other set, headed by M'Leod younger, for declaring their own election and voiding the other. The following no process was moved, That the execution of the summons against Sir Ludovick Grant one of the defenders is void; because though it recites the names of all the pursuers, none of the defenders are specially mentioned, except Sir Ludovick Grant himself, and the said John M'Leod. With regard to the other defenders, there is nothing but a general description in these words:

“And the other persons within named and designed.”

And that this was a total objection the act 6th Parl. 1672 was appealed to, ordaining, “That all executions of summons shall bear expressly the names and designations of the parties, pursuers and defenders, and that it shall not be sufficient that the same do relate generally to the summons, otherwise the execution shall not be sustained.”

It was answered, That the statute is not applicable to the present case, where the execution is written upon the back of the summons; and upon that account cannot refer to any other defenders but those named in the summons. This will be evident from considering the inductive cause of the statute, as vouched by Sir George M'Kenzie in his observations upon it. Executions originally were indorsed upon the summons, which produced the following curt stile, ‘That the messenger cited the parties within expressed.’ It became usual afterwards to write the execution on a paper apart, without altering this curt stile, which was not only a blunder, but in some cases furnished an opportunity to fraud, by applying to a summons, that never was executed, an execution of a deserted summons. This artifice had been carried so far as even to interrupt the negative prescription of 40 years. To prevent this abuse the above mentioned clause in the statute 1672 was calculated. It is true, the words are general, comprehending all executions without exception. But then the words ought to be limited to the purpose and intendment of the statute, which was never meant to comprehend the present case. For it is evident, that an execution written upon the back of the summons, must relate to that summons and to none other.

‘The Lords repelled the objection.’

One should imagine that it did not require an act of Parliament to correct the abuse above mentioned. An execution upon the back of a summons, bearing a citation of the parties within expressed, is not at all ambiguous. It contains the same certainty as if every one of the defenders were mentioned nominatim in the execution. But such an execution on a paper apart has no certainty. It may apply to any summons whatever, and affords no evidence of a citation of the defenders contained in the summons to which the pursuer is pleased to apply it. Upon this account such an execution ought not to be regarded by a court of justice; and had it been disregarded, the above clause in the statute would have been unnecessary.

Sel. Dec. No 84. p. 111.