Can Executions be Amended after being produced in Process? - Executions of Legal Diligence after Registration.
The Creditors of the Laird of Wamphray v. The Laird of Calderhall and the Lady Wamphray
Date: 12 January 1677 Case No. No 16.
An instrument of registration produced in process', being objected to, for not bearing production of the procuratory, the Lords would not allow the notary to give out another instrument, bearing that the procuratory was produced.
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In a competition betwixt the Creditors of Wamphry and Calderhall, as donatar to his escheat, competing for the sum of L. 12,000 due to him by the Earl Annandale;—it was alleged for the donatar, That the sum fell under Wamphray's escheat, having been required by Wamphray.—It was answered for the Creditors, 1mo, That albeit requisition had been fully made, the sum bears annualrent, and therefore is not moveable quoad fiscum et relictam by the act of Parliament 1661; 2do, There was an instrument of requisition judicially produced, which was null, not bearing a production of a procuratory.—It was replied to the first, The act of Parliament is opponed, by which the fisk and relict are in the same condition as they were before that act; and then requisition or a charge did make sums bearing annualrent or infeftment simply moveable, unless past from, by taking annualrent for terms posterior: And as to the second, the first instrument of requisition would have been sufficient, though it bore no mention of procuratory, which is presumed to have been known to the party; aud therefore the Lords have in many cases sustained requisition or premonition by procurators, without mention of the production or reading thereof, when an anterior-procuratory is produced in process, and when the procuratory was not called for, and refused to be produced at the time of the requistion.—It was duplied, That though in some favourable cases the Lords have dispensed with, or supplied the not production of a procuratory or warrant, as in redemption of land, or in questions betwixt the heir and executor, yet it was never extended to sustain a requisition to make a sum moveable, and thereby to fall to the fisk, which is penal, loosing the sum to the creditor, and all having interest in him; neither can a second instrument from the same notary be admitted, after the first is judicially produced, albeit the Lords, upon supplication, representing that the notary refused to extend an instrument, without mention of the former instrument extended by him, and judicially produced, did give warrant to the notary to extend it, which passeth in course always.
The Lords refused to admit of the second instrument, after the judicial offer of the first, and refused to supply or sustain the same in a case so penal, and therefore preferred the creditors to the donatar. See Redemption.
Fol. Dic. v. 1. p. 953. Stair, v. 2. p. 492.
*** See Dirleton and Gosford's report of this case, No 19. p. 3630. voce Escheat.
