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Scottish Court of Session Decisions >>
Malcolm Gory v Andrew Donaldson. [1756] Mor 3699 (16 November 1756)
URL: http://www.bailii.org/scot/cases/ScotCS/1756/Mor0903699-026.html Cite as:
[1756] Mor 3699
Execution against a Party within the Kingdom, must be personally, or at his dwelling-place.
Malcolm Gory v. Andrew Donaldson
Date: 16 November 1756 Case No. No 26.
It had been objected, that the execution of an inhibition was null, as it bore that a copy was fixed upon the door of the debtor's house after the messenger had made six knocks, because he could not find the debtor personally; which method of execution is authorised by law only when access cannot be got, or the servants refuse to receive the copy. The objection was repelled.
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In a ranking of the creditors of Nairn, it was objected by Donaldson, that an inhibition used by Gory was null, for that the execution of it bore, “That a copy was fixed upon the door of the debtor's house, after the messenger had made six several knocks as use is, because he could not get the debtor personally;” whereas the 75th act, 6th Parliament, James V. authorises this method of execution in the case only when access to the house cannot be got, or the servants refuse to receive the copy; neither of which this execution bears.
Pleaded for Gory; 1mo, The same objection was made to the execution of a horning 30th July 1696, Sinclair against Lord Bargeny, Div. 4. Sec. 7. h. t.; and to the execution of an apprising 20th of December 1705, Scrymgeour against Beatson, Ibid.; and was in both cases repelled. As the same act which regulates the form of the execution of hornings aud apprisings, regulates the execution of inhibitions, the same judgment ought to be given in this case; more especially as the execution against the lieges was undoubtedly formal and the inhibition registrated, so that Donaldson cannot pretend to have contracted bona fide with the person inhibited.
Pleaded for Donaldson; The decisions are not in point; for that there the execution bore, that the messenger gave six knocks; and this implied that he sought entrance: the execution of inhibitions must be precisely formal; for that by them the preference of creditors is regulated. And therefore an execution of inhibition was found null, because it only bore several knocks, and not six knocks, 29th of July 1680, Hay against Pourie, Div. 4. Sec. 7. h. t. Neither does the formality of the execution against the lieges vary the case; for that he who sees that an inhibition upon record is null, by reason of its informality, may bona fide contract with the person inhibited, in the same manner as he may contract, who sees that a sasine upon record is null by reason of its informality.
‘The Lords repelled the objection.’
Act. Gory, Græme.Alt. Nairn, Rae.Reporter, Woodhall.Clerk, Gibson.
Fol. Dic. v. 3. p. 187. Fac. Col. No 206. p. 316.
