Can Executions be Amended after being produced in Process? - Executions of Legal Diligence after Registration.
Maxwell and Home v. Thomson
Date: 10 November 1683 Case No. No 18.
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An execution being quarrelled on the act of Parliament 1672, for not designing specially the defender, it was alleged, That act meaned principally of citations to be used as interruptions, &c. The Lords, on Pitmedden's report, allowed the pursuer to mend his execution, and that being done, sustained it.
Fol. Dic. v. 1. p. 552. Fountainhall, v. 1. p. 242.*** Sir P. Home reports this case:
Adam Maxwell and George Home, merchants, having pursued Andrew Thomson, skipper, for payment of a debt, alleged for the defender, That by the 6th act, § 3d, Parl. 2d, Charles II. it is provided, that all executions of summonses shall bear expressly the names and designations of the parties, pursuers and defenders, and that it shall not be sufficient that the same do relate generally to the summons, otherwise the execution shall not be sustained; so that, seeing the executions of this summons bear only Andrew Thomson, within designed, to be summoned, without designing him in the execution, it is null.—Answered, That the foresaid clause in the act of Parliament has not been in use to be observed, seeing the most part of executions do not bear parties designations; and albeit it were observed, this execution ought to be sustained, seeing it bears Andrew Thomson within designed to be summoned, and he being designed in the summons, it is sufficient.—The Lords allowed the messenger to mend the execution, and to insert the defender's designation, as he was within designed.
Sir P. Home, MS. v. 1. No 499.*** This case is also reported by Harcarse:
November 1683.—A summons being quarrelled as null, for that the execution bore only, that the within designed Andrew Thomson was cited; and so the defender was not designed as well as named in the execution;
Answered, This was never in observance, and communis error facit jus; 2do, The execution is now helped at the bar.
The Lords sustained the summons and execution as helped.
