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. XII.

Executions bearing in general to have been lawfully gone about.

Hay
v.
Lady Ballegerno

Date: 19 November 1680
Case No. No 146.

Execution of an inhibition bearing “several knocks, and that the party was lawfully inhibited,” was found null, for counting six knocks.

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John Hay as donatar to the recognition of the lands of Murie, pursues a declarator of recognition, wherein compearance is made for the Lady Ballegerno, who is infeft in a wadset in the lands of Powrie for 25,000 merks, and alleged that the recognition must be with an exception of her right, because before the disposition, upon which the recognition does not incur, her father had inhibited Murie, and she had raised reduction upon the inhibition, which she repeats, and craves the deeds on which recognition was incurred to be reduced, as posterior to her inhibition. It was answered, That the inhibition was null, not being executed personally, but at the inhibit's dwelling-house, and not bearing six knocks at the most patent door. It was replied, 1mo, That she opponed the inhibition, bearing several knocks, and that the party was lawfully inhibited; and albeit the act of Parliament requires six knocks, yet it is only in the case of citations, that the parties may be certiorated to appear and defend; but there is not a statute requiring it in inhibitions. 2do, The Lords have dispensed with greater solemnities, viz. three blasts with a horn in denunciations, whereof there are two cases observed by Durie No 113, p. 3765, and No 114, p. 3766, the messenger and witnesses proving that three blasts were truly given; the like is offered here, that six knocks were truly given. 3tio, There is here a new execution given in by the same messenger, bearing six knocks. It was duplied for the pursuer; that though there be no special statute anent the solemnities of inhibitions, yet the constant consuetude hath ever required it in all executions in absence, to prevent the cheat in citing in absence, upon pretence of close doors, and that therefore the law requires that six knocks should be given at the most patent door, that if it be opened, a copy might be given to the party or any of his family; and therefore a copy upon the door is left, in case after six knocks the door be not opened, but it is too frequent that these copies are carried off the door, and the party never comes to know. And as to the decisions in Durie, there are contrary decisions about that same time, which were shortly after the act of Parliament for registration of inhibitions, which have exceedingly altered the case, for all prudent purchasers do search the registers, and if they do find any defective inhibition registrate, they know it cannot be made up after, and so does surely proceed to acquire, and a stronger case was fully debated in presentia, in July 1671, betwixt the Laird of Caskieben and Sir John Keith, No 143, p. 3786; where an inhibition wanting these words, ‘a copy delivered,’ being so registrate, though the messenger added the words upon the margin and signed it, and offered to prove it was so done, yet the Lords would not sustain the same.

The Lords found the inhibition null for wanting of the six knocks, being so registrate, and would not supply it upon any probation.

Fol. Dic. v. 1. p. 270. Stair, v. 2. p. 803.