Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 EXECUTIONS.

Falconers
v.
Smith.

Date: 5 March 1777

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Executions, signed blank, by the executor and witnesses, are declared void by the Act of Sederunt, 24th July 1704. It occurred in the case of Falconers against Smith, (mentioned under Removing,) whether this Act of Sederunt extended to executions of summonses by any other than messengers-at-arms; for, although the enacting words of the Act are general, and reach to all executions, yet the penalty seems confined to messengers, and therefore the Act may be supposed to relate to them only: further, it was alleged, that this practice still prevails in inferior courts, particularly Sheriff-courts, where blank executions, that is, executions signed blank by the witnesses, sometimes before the officer signs them, and sometimes when he signs along with them, are in daily use; owing to this among other reasons, that many of the officers of these courts, though they can sign their name, cannot write out executions; but, after signing their executions, and getting them signed by the witnesses, leave them to be filled up by others.

It so happened, that, in this case of Falconers against Smith, a decision upon this point was unnecessary; at the same time, the Lords expressed their disapprobation of the practice, (17th January 1777.)

When the complaint came again before the Court, on a reclaiming petition, although still a decision upon this particular point was in this case unnecessary; the Lords, (5th March 1777,) called the Sheriffs to the bar, and recommended to them to prepare an act for correcting this erroneous practice in time coming. In this case, the witnesses had signed the execution blank before it was filled up or signed by the officer.