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.

The Earl of Leven
v.
Nicolson of Trabrown and Durham of Largo

Date: 14 February 1706
Case No. No 81.

An execution of an inhibition written on a paper apart, and which did not design the parties, was sustained, it having been made before the act of Parliament 1672, chap. 6.

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They being all creditors to Young of Kirkton, and competing, Leven craved preference, though posterior, because first clad with possession; the other repeated a reduction ex capite inbibitionis. He objected against the inhibition, that it was null, defective, and informal, in so far as the execution designed neither the party inhibiter nor inhibited, which, if it had been on the back of the letters, had been the more tolerable, but is on a paper apart; and the calling, them only the within designed,’ is applicable to any other persons of that name, or any other paper as well as this. 2do, It wants this solemnity, that the messenger made public proclamation; the design of the law being, that it should be done with such an audible voice, as may come to the ears of all by-standers. Answered to the 1st, There was no law obliging creditors in such executions to design them; for the act of Parliament 1672 relates only to summonses, and not to inhibitions; and even this execution was before that act. To the 2d, The execution bore the three oyesses, and open and public reading, which can be no other but proclamation, and the same thing in other words. The Lords having taken trial how the style run in 1667, which was the date of these executions, and having found many of them were conceived in the same manner, so it might be a dangerous preparative to annul them on such omissions, and might open a door to question many diligences and securities, and that the registration of the execution put the matter beyond all dubiety, and ascertained the persons, that one could not be shuffled into the place of another; therefore they repelled the nullities, and sustained the inhibition.

Fol. Dic. v. 1. p. 263. Feuntainhall, v. 2. p. 327. *** Forbes reports the same case:

In the competition of the creditors of James Young of Kirktoun, Durham of Largo, and James Nicholson of Trabrown, having founded on two inhibitions, one in the year 1667, and the other in the 1668, for supporting the preference of their rights, the Earl of Leven objected against these inhibitions, that 1mo, No respect could be had to the inhibition 1667, in regard neither the inhibiter nor the person inhibited, are otherways mentioned in the execution, than by their names, with the quality of ‘within designed’ although the execution be a paper apart; which is contrary to the act of Parliament 1672, and might refer to all of the same name though not concerned in the inhibition; and did not sufficiently certiorate the lieges whom they are discharged to bargain with. 2do, The execution at the market-cross wants the words open proclamation and bears only three oyesses, open and public reading, which is a nullity; For three oyesses might be muttered, and open and public reading signifies no more than it was read at the market-cross, which might have been quietly done. 3tio The inhibition 1668, is null, because the execution thereof, though upon a separate paper, inhibits only the lieges in manner within-written, without specifying what they are inhibited to do.

Answered for Largo; There was no law or custom at the time requiring the raiser of inhibition, and the person against whom it was executed to be specially designed. It matters not that the execution is not upon the back of the letters 1mo seeing it is duly registered therewith, and the act of Parliament 1672, requiring the special designation of pursuer and defender in ordinary summonses, extends not to inhibitions; because, the executions of these being registrate with the letters, the lieges cannot be imposed upon by shuffling in one in place of another. 2do, Open and public reading implies open proclamation; and three oyesses import a loud proclamation and intimation to all persons with an audible voice. 3tio, In the executions of the inhibition 1668, the lieges being inhibited and discharged in manner within-written, to the effect and for the reasons and causes within specified, &c. The same are sufficiently formal according to the custom of that time, And the lieges are sufficiently certiorated by the messenger's execution relative to the letters bearing all the prohibitory clauses, and by a copy of the letters affixed to the cross, and inserted in the register. Besides, not only executions of inhibitions and charges of horning are thus relative to the letters, as the warrant, which are registered; but also the executions of all other summonses not in use to be registered are so conceived.

The Lords having after trial found the stile of many executions of inhibition about the time of these quarrelled to run in the same strain, they repelled the nullities, and sustained the inhibitions; because the sustaining such grounds of nullity might open a door to question many diligences, and the registration ascertained the parties, so as one could not be mistaken for another.

Forbes, p. 99.