Can Executions be Amended after being produced in Process? - Executions of Legal Diligence after Registration.
John M'Rae v. Lord M'Donald
Date: 6 July 1671 Case No. No 13.
Objected against an execution, that it did not bear that a copy was left. The messenger was allowed to add that clause to the execution, he abiding by it as true.
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Jonh M'Rae, as heir to John M'Rae his goodsire, pursues the Lord M'Donald, as heir to his goodsire, for payment of a bond of 400 merks in anno 1629, granted by the defender's goodsire to the pursuer's goodsire.—The defender alleged absolvitor, because the bond is prescribed.—The pursuer replied, That the prescription was impeded, partly by minority, and was interrupted by a citation at his instance, against the Lord M'Donald.—It was answered, That the first citation made was null, being at the market cross of the shire, by dispensation, upon an unwarrantable suggestion, that there was not safe access to him, which has been past of course by the servants of the Bill-Chamber; whereas they ought specially to have represented the same, and the consideration thereof to the Lords; and so being surreptitiously obtained, periculo petentis, it can import no interruption. 2dly, The execution at the market cross bears no leaving or affixing of a copy; and as for the second citation, it is but one day before the 40 years be completed, which being so small a time, is not to be regarded in prescription, nam lex non spectat minima, and it is also null, though it be done personally, as falling with the first execution.
The Lords found that the first citation was sufficient to interrupt prescription although it had not been formal, through want of a copy, and declared they would sustain the process thereupon, if the leaving of a copy were added to the execution subscribed by the messenger, and abidden by as true. They found also, that the second citation was sufficient interruption, though within a day of completing the prescription, which was to be reckoned punctually de momento in momentum. See Prescription.
