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.
Stevenson v. Innes
Date: 11 July 1676 Case No. No 145.
An inhibition was found null, because the execution bore not public reading of the letters and three oyesses, tho’ it bore that the messenger lawfully inhibited the lieges.
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William Stevenson pursues reduction of a wadset granted to James Innes, as being after inhibition. The defender alleged absolvitor, because the execution of the inhibition at the market cross against the lieges is null, not bearing ‘the public reading of the letters at the cross, and three several oyesses.’ It was answered for the pursuer, That the execution bears, “that the messenger lawfully inhibit the lieges,” which although general, is sufficient. 2do, In fortification of the execution, he offers him to prove, that the letters were truly read, and three oyesses given. It was answered for the pursuer, Non relevat, because executions cannot be proven by witnesses in the substantials thereof; ita est, the substantials of an inhibition against the lieges, is a public reading of the inhibition with three oyesses; and horning has been found null upon an execution at a dwelling-house, because “it bare not six knocks at the most patent door;” and in the case of Sir John Keith of Caskieben contra the Earl of Annandale, No 143, p. 3786, an inhibition against the party inhibited, was found null, because it did not bear a copy given, not being registrate with these words; although the messenger ex post facto, added upon the margin a copy given, and offered to prove the same truly given. It was replied for the defender, That sasines have been found valid of a mill, though not bearing, ‘the delivery of the clap,’ but only that “sasine was given upon the ground of the mill, according to the custom in such cases.” It was duplied for the defender, That inhibition being an extraordinary remedy, according to our custom it requires a special execution, expressing the substantials of the act, and there is nothing so substantial, as the putting the lieges in mala fide to contract with the person inhibit, which can only be done by three oyesses, and public reading of the inhibition, which therefore cannot be supplied by witnesses.
The Lords found the execution of the inhibition null.
Fol. Dic. v. 1. p. 269. Stair, v. 2. p. 443.*** Gosford reports the same case:
There being a reduction raised at William Stevenson's instance, against James Innes, ex capite inhibitionis, there was likewise a reduction of that same inhibition at the defender James Innes's instance, upon this reason, that the inhibition was null, wanting the ordinary and necessary solemnities, viz. three several oyesses, upon proclamation and public reading of the letters. It was answered, that the executions were opponed bearing lawfully executed, which was comprehensive of all necessary solemnities. And in fortification, it was offered to be proven by witnesses, that the three oyesses were given, and the letters publicly read. It was replied, that the executions bearing no such thing, but only a general that ‘they were lawfully execute,’ are ipso jure null, as was decided by several practics, where the executions not being special, and bearing that copies of horning or citations were not delivered to the parties, or that executions or denunciations to the horn, not bearing after three several blasts, and six several knocks, were found null, and reduced, notwithstanding that they did bear that they were lawfully executed, and that these defences of supplying by witnesses have been constantly refused, as being against the act of Parliament declaring that hornings cannot be proven by witnesses, and for this were cited practiques, betwixt Sir John Keith and the Earl of Annandale, No 143, p. 3786; Farquhar against Lyon of Muresk,* and out of Haddington's practics.*
* See Appendix.
The Lords did reduce the inhibition, and found the reasons relevant and proven by the execution not bearing three several oyesses, and that the letters were publicly read and proclaimed; and albeit they did bear lawfully executed, it was not sufficient, nor could not be supplied by a new probation by witnesses, there being that same reason as to probation of inhibitions, as for hornings, being both of a public concernment; and to take away the rights of the subjects by depositions of witnesses, which might be craved after the messengers are dead who did execute, were an ill preparative.
