The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. XI.
Execution returned Blank to the Party.
Sinclair v. Sinclair
Date: 28 June 1704 Case No. No 142.
A messenger and witnesses having signed a blank paper, and transmitted it to the pursuer's agent, along with a note under his hand, containing some of the essentials of the execution, and the agent having written the execution, it was sustained, unless the defender would prove that the solemnities were not used.
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In the competition betwixt Sinclair of Barak and Southdun, mentioned 21st current, No 5. p. 234.; Barak objects against the execution of Southdun's adjudication, that it was null, because they were signed blank by the messenger and witnesses in Caithness, and sent blank to Edinburgh, where they were filled up with a legal and formal execution, by Southdun's writers and agents, seeing the witnesses could not know what was to be filled up in the blank, neither did they see it since the upfilling, so that they were only witnesses to the verity of the messenger's subscription, whereas the true design of adhibiting is to attest the contents and solemnities of the execution. Answered, 1mo, They would abide at the verity of the execution, if Barak offered to improve it as false, which was all that law could oblige them to do. 2do, Whatever inconvenience might be in messengers signing a blank paper, wherein afterwards an execution is filled up, because of the ignorance and informality of most messengers to frame them without such help, yet it has been a frequent practice these many years bygone, both north and south, and other remote places from Edinburgh; so that the casting of these executions would introduce a great confusion and disorder, and annul many diligences; and as error communis facit jus pro prœterito, so it may be obviated by an act of sederunt discharging such practices for the future, according to the doctrine of the commentators, ad l. 3. D. de off. prœtor.———The Lords, in this case, found the messenger had sent alongst with the blank execution a short note or minute under his hand, containing some few of the essentials of an execution, and therefore sustained it, unless Barak would, by the witnesses insert, disprove that the solemnities of six knocks, and leaving a copy, &c. were not used; and as ex malis moribus bonœ oriuntur leges, so, for preventing such a pernicious practice pro futuro, they made an act of sederunt, discharging such blank executions in all time coming, under the pain of nullity, and depriving the messenger; and ordained it to be published, printed, and intimated to the Lord Lyon and messengers.
Fol. Dic. v. 1. p. 271. Fountainhall, v. 2. p. 234.
