Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Durham of Largo v. Mercers and the Earl of Leven
Date: 12 February 1702
Click here to view a pdf copy of this documet : PDF Copy
In a competition between Durham of Largo, and Mercers, and the Earl of Leven, their assignee, all creditors to Young of Kirkton; Largo having founded on two inhibitions, it was objected against the [execution of the] first, that it was null, because it neither designed the inhibitor nor the person inhibited, but only related to the letters, and bore “the within designed.” 2do. The execution against the lieges at the market-cross does not bear the letters to have been read after open proclamation.
Against the second inhibition it was objected,—That it only bore the general terms, to have inhibit them, to the effect and with certification within written, but wants the special prohibitory words,—to sell, annailyie, wadset, or contract debts.
Answered to the first,—The Act of Parliament 1672 appoints the designation of parties in executions of summonses; but there is no Jaw nor custom requiring it in diligences. Next, The execution bears open and public reading of the letters and three oyesses, which is the same thing with proclamation; and though want of solemnities may annul inhibitions as an unfavourable diligence, stopping commerce, yet they must not be cast up for omission of nicety, where they have the equivalent.
As to the objection against the second inhibition, answered,—That the execution bears, he discharged all the lieges with certification, conform to the command of the letters in all points, and affixed a copy; and executions of hornings only bear the party to be charged for the causes and to the effect within specified, and yet none will call such a charge of horning null.
Some thought the style was to he followed in terminis specifias, without any mitigation or dispensation by equipollents. Others inclined to sustain the inhibitions, who had the Lord Stair of their opinion, Book 4. tit. 50: But, at last, the Lords, before answer, resolved to try the custom by inspecting the registers.
