Clauses implying or importing particular legal steps of execution.
John Paterson v. James Thomson
Date: 16 January 1784 Case No. No 162.
An execution of inhibition which contained the names and designations of the witnesses, but without mentioning that they “were witnesses to the premises,” was sustained, the witnesses having subscribed the execution and added the word ‘witness’ to their subscriptions.
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Paterson pursued Thomson in an action of reduction ex capite inhibitionis. Thomson objected, That the inhibition was null, its execution concluding thus: “Which copy of inhibition was signed by me, and did bear the date hereof, &c. with the names and designations of Andrew Johnston, sutor in Selkirk, and William Stewart, weaver there;” without mentioning that they “were witnesses to the hail premises,” according to the usual style; although they actually did subscribe, and annex to their subscriptions the word ‘witness.’ In support of this objection the defender
Pleaded; The law requires that diligence should be regularly and formally executed, and has appointed the messenger's report or execution as the only evidence of such formality. If in any case it does not thence fully appear, the diligence must fall to the ground. From this principle proceeded the act of sederunt, 28th June 1704, prohibiting blank executions; together with a variety of decisions under this title, Execution, and likewise one not collected, Herriot contra Magistrates of Haddington, 23d December 1740, See Appendix. It is true, that the word ‘witness’ is here subjoined to the names of the persons subscribing; but that addition denotes nothing more than attestation of the messenger's signature, and not of the facts narrated in his execution.
Answered, Though the precise words ‘witnesses to the premises,’ are not engrossed in the body of the execution, yet in the whole of that writing taken together their meaning is sufficiently expressed; than which the law requires nothing farther; agreeably to the determination of the Court in the case of Clark contra Waddell, 17th July 1752, Fac. Coll. No 161. p. 3806.
The Lord Ordinary ‘repelled the objection.’ And, on advising a reclaiming petition and answers,
The Lords adhered to the interlocutor of the Lord Ordinary.
The defender again reclaimed; when his petition was appointed to be answered. But the Court still adhered to their former judgment.
Lord Ordinary, Braxfield.Act. Ad. Ogilvie.Alt. Macleod.Clerk, Robertson.
Fol. Dic. v. 3. p. 189. Fac. Col. No 137. p. 216.
