Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROOF - EXECUTION.
Subject_3 Parole Evidence incompetent to rectify a mistake in the record of Judicial proceedings. Executions of Inhibitions must bear three oyezes and public reading.

Alexander Gillies
v.
Adam Murray

Date: 25 January 1771

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[Fac. Coll. V. 207. Dict. 3,795.]

Pitfour. Mistakes are incident to mankind. Here there is nothing more than a mistake in writing five instead of three in the execution. As to the three oyezes, when execution was the whole of the intimation. Agreat exactness was required: not so now, when, to execution, there is superadded registration.

Justice-Clerk. There is no objection to the execution of the inhibition. The only objection is as to the date. The error of the date may be proved.

President. The Court is going very far to rectify errors in legal acts by the means of parole evidence. The clerk of the bills does not examine the executions: he takes that upon the faith of the writer who presents the bill. Here, then, we are to trust every thing to the writer, and, of consequence, to the party himself.

Coalston. This cause is not to be determined upon principles of equity. Creditors must stand or fall by the priority and propriety of diligence. In order to support the inhibition, the execution must be produced. An inhibition on the 3d of July cannot be supported by an execution of summons on the 5th of July. The execution cannot be supplied by witnesses: no more can the dependance. Besides, the clerk of the bills cannot swear that this summons was the summons shown to him: The oyez (or hear all) is the publication, and the want of it is the want of publication.

Hailes. The pursuer pleads, that, to require critical accuracy in the minutiæ of legal acts, is to throw snares in the way of suitors. I do not think so. We live in an age where there is so much carelessness and inattention, that, if we relax from the rigour of form, every thing will go into inextricable confusion. If the pursuer has suffered by the error of the person he employed, let him seek his damages as he best can. I am also for sustaining the second objection, not because the execution does not bear three oyezes, but because it does not bear lawful publication: and this is just what was the opinion of the Court in 1681, as observed by Lord Stair. Lawful publication may imply three oyezes; but we cannot presume lawful publication where no mention is made of publication at all.

Monboddo. As all our judicial proceedings must be in writing, evidence by witnesses cannot be received to rectify errors in them.

Kaimes. Here there seems a contest of reality against law: but, when an inhibition is ex facie regular, will it not stand till it be reduced?

On the 25th January 1771, the Lords “sustained the objection, that the execution of the inhibition appears to be prior in date to the execution of the summons; and also the objection that the execution of inhibition does not bear three oyezes.”

Diss. as to the first objection, Pitfour, Auchinleck. As to the second, Pitfour, Auchinleck, Elliock.

Act. H. Dundas. Alt. G. Buchan, Hepburn. Reporter, Barjarg.