Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Lady Kinglassie
v.
Mr James Alexander

Date: 15 December 1680

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The Lady Kinglassie pursues a declarator against Mr James Alexander, for reducing his right of Kinglassie's estate, upon a contravention of a clause in it, upon which he is obliged to call his children Ayton: he did propone a defence, which was sustained upon the 26th day of November last,—That the executions were null, not designing the defender.

The cause being again insisted in, and a new execution produced, bearing his designation, which he was allowed to see in the clerk's hands; he did now Allege, That, having excepted against a summons with the first execution, and his dilator defence sustained thereupon, he was not obliged to answer upon any new execution; but was, in effect, assoilyied ab hac instantia, till he were summoned of new, and a new process raised: for albeit the Lords, before interlocutor, will, ex gratia, suffer pursuers to mend their executions, and abide by the verity thereof, yet that is but ex gratia. And the ancient custom was, when the defender excepted against the executions, if they were defective, he was ever free, ab instantia, and not obliged to answer till a new process were raised: much more in this case, where, by interlocutor, the defence was sustained, upon the defect of the execution then produced.

It was answered, That defects in executions, albeit they may be strictly adhered to by the Lords, yet, ex nobili officio, they may allow some alterations; and there can be none more favourable than this,—the addition of the defender's designation, ubi constat de persona. And the Lords' interlocutor finds only no process upon the execution produced; but doth not assoilyie ab instantia; and, though it did, there is nothing extracted.

The Lords sustained process upon this execution.

Vol. II, Page 815.