The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. XI.
Execution returned Blank to the Party.
Abernethy v. Ogilvie
Date: 9 January 1700 Case No. No 141.
An execution was signed by the messenger and witnesses, blank, and afterwards filled up by the pursuer's agent. The Lords sustained it, but made an act of sederunt prohibiting such practice in time coming.
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Arbruchel reported Abernethy of Mayen against Ogilvie of Badintowl, for payment of a debt contained in his father's bond. Alleged, The execution is null, because it is offered to be proven it was signed by the messenger and witnesses blank, and so transmitted to Edinburgh, and filled up here by the agent; which was a most false and abusive practice, seeing the witnesses are now, by act of Parliament, adhibited not only to the messenger's subscription, but to the verity of the act, and all its solemnities, which is a clear pre-engaging them, and proditio testimonii, being made to subscribe before it is filled up, and so to attest what was not truly done. Answered, There is no practice more ordinary, in regard messengers frame their executions so informally, that their ignorance did cast a great many processes, for preventing whereof this was invented; and, that it might not be altered to any other use, the messenger uses to write a note on the back of the said blank execution, containing directions how to fill it up. Replied, The quotation here calls it a diligence, and not a summons, and is not subscribed by the messenger. Duplied, If ever Mayen executed a diligence against this defender he is content his summons be cast; likeas a summons is a diligence, and these are not always subscribed.——The Lords were all clear that it was prava consuetudo, and of ill consequence, yet thought the preparative might be as dangerous on the other hand; for it had been generally done, et error communis facit jus quoad prœteritum, otherwise the half of the decreets and processes of Scotland shall be annulled, they proceeding on such citations; therefore they rejected the nullity, but prejudice of his improving the execution, as accords: But resolved, by an act of sederunt, to discharge the like practice of messengers and witnesses subscribing blank executions in time coming, and to cause publish and proclaim it.
Fol. Dic. v. 1. p. 271. Fountainhall, v. 2. p. 78.
