Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Brechin Election Process

Date: 28 January 1741

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[Elch., Burgh Royal, No. 15.]

In this case there were several objections made to the execution or the summons, which the pursuers endeavoured to supply, by giving in what they called a suppletory or explanatory execution. The question was, Whether such explanatory execution could be received.

The Lords found, That it could not, as containing several facts not mentioned in the first execution, after the first execution had been produced in judgment and quarrelled as null. The principal objection against the execution was, that it did not bear a designation of the dwelling-house, or that it did not express where the dwelling-house was situated. The pursuers answered that, as the summons was raised against persons pretending to be bailies of Brechin, and as by the sett of the burgh all the magistrates and councillors must reside in the town, it might easily be inferred that the dwelling-house mentioned in the execution behoved to be in Brechin. It was replied that there was no necessity to suppose that pretended bailies, (so they were designed in the summons,) resided in Brechin.

The Lords found that this was a defect in the execution. Dissent. Elchies.

The question came next whether the defect could be supplied, by the messenger adding the place where the dwelling-house was situated. It was argued for the defenders, that, when the execution was produced in process, it was out both of the messenger and pursuer's hands ; it became part of the record of court, and the warrant and foundation of the whole judicial procedure; it being defective, (as their Lordships have found,) the process is at an end, and there is nobody in the field against whom an interlocutor finding that it can be supplied, or any other interlocutor, can pass : that, by the ancient form, before written executions were introduced, the messenger and witnesses appeared in court and swore to the verity of the execution ; then, to be sure, there could be no amendment of an execution, and it cannot be that there is any alteration in that respect, made by the act appointing written executions, which rather makes the solemnity and strictness of executions greater than less : that it is true the Lords have, by their decisions, so far deviated from the ancient form as sometimes to allow amendments of executions, but that was only in cases where the objection to the execution was no more than a dilator, and where the pursuer had a right of action in his person at the time he was allowed to amend the execution : here, the objection is peremptory, not only of the instance, but of the cause ; and the pursuers, at the time they crave to amend the execution, have no right of action, the eight weeks being expired. And lastly, the Lords have found, in the same cause, that a suppletory execution could not be received as containing new facts : that the dwelling-house is situated in Brechin is certainly a new fact, and so material that the want of it was judged a nullity in the execution, and therefore by the former interlocutor it cannot be supplied. To this it was answered by the pursuers, That it was a mistake to say that it was the execution, as returned by the messenger, that was the foundation of the process : that it was the actual service or intimation of the summons, the in jus vocatio, that was the foundation of the judicial procedure, and, if that was right, the action was legally brought into court, though perhaps the execution returned by the messenger might be defective: that the records of the court were frequently altered and amended, as in the case of a libel: that, where the objection is peremptory of the cause, it is less favourable than where it is only peremptory of the instance; but even there are examples that an amendment has been allowed where the objection was peremptory of the cause: that there was no new fact proposed here but only an explanation of the old.

The Lords found that the not designation of the dwelling-house could be supplied.—Dissent. Preside et Elchies. The ratio decidendi was the practice and course of decisions.