The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. IV.
Execution by leaving a Copy.
Agnes Loch v. Sir Patrick Home
Date: 15 January 1706 Case No. No 104.
It is not necessary to mention in an execution, that the copy delivered was signed.
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In a competition for the mails and duties of some lands in Preston and Bunckle, betwixt Agnes Loch, relict of Mr John Colvil, and Sir Patrick Home, advocate; it was alleged against Sir Patrick's apprising, derived from one Elisabeth Arthur, That it was null, because the decreet of apprising, narrating the messenger's executions, did not bear that the copies and schedules left on the ground, and delivered to the parties, were subscribed, as the 141st act 1592 appoints.—Answered, It is true that law requires these schedules to be signed by the messenger, but no law appoints him to express his having done so in the execution; and how many diligences would this annul, not only of apprisings, but of hornings, inhibitions, and arrestments, which only used to bear a copy left or delivered, but did not mention whether subscribed or not? If the schedule were produced, and found to be unsigned, something might be said; but in dubio omnia præsumuntur solemniter acta.——The Lords did not find this a nullity.—2do, It was objected, That these apprisings were informal and irregular, there being three debtors, the Lord Mordington, Douglas of Lumsden, and John Colvil, all in one bond, and yet there are three several decreets of apprising extracted separately against every one of their lands apart, as if it were three several debts, and not all one.—Answered, What hinders a creditor to insist against one, and not against another, or to take out three several decreets against three sundry debtors in one bond, even as now, by the late regulations in 1695, creditors competing in a ranking may take out a decreet for themselves, without inserting the compearances, debate, and interlocutors concerning the other creditors.——The Lords ordained the Ordinary to try if there were three several claims given in to the messenger, and three sentences pronounced thereon; in which case, the clerk to the apprising might divide them into three several decreets of apprising, otherwise it would be unwarrantable.
Fol. Dic. v. 1. p. 264. Fountainhall, v. 2. p. 311.
*** The like was decided 8th July 1713, Baillie against Nisbets, Div. 4. Sect. 1. h. t. No 82. p. 3745.
