Scottish Court of Session Decisions

Andrew Clason, W. S. raised an action of wakening and transference against John Campbell, late of Craignure, and other parties. The pursuer, Clason, and the defender, Campbell, were both sufficiently named and designed in the execution of citation returned against Campbell; but a number of the other defenders called by the summons were not named and designed at all in this execution, which was not indorsed on the summons, but written on a separate sheet of paper, only connected with it by stitching.

Campbell, in defence, objected to the action,—No process, in respect the parties thereto are not designed in terms of law in the execution of citation. ¹

The Lord Ordinary sustained this preliminary defence, adding to his interlocutor the note subjoined. ^*

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¹ 1 Act 1672, c. 6.

^* “It is certainly with much reluctance that the Lord Ordinary pronounces this interlocutor; but looking to the terms of the Act 1672, c. 6, and the decisions in the case of Stewart, ¹January 13, 1831; Creichtons, ²November 16, 1832; and Collier, ³June 3, 1834, especially the two last, he thinks that he has no alternative. The statute is imperative, that ‘all executions of summonses shall expressly bear the names and designations of the parties, pursuers and defenders, and that it shall not be sufficient that the same do relate generally to the summons, otherwise the execution shall not be sustained,’—and although a relaxation has been admitted where the execution is written wholly or partly on the same paper with the summons, the decisions have settled the point, that if any execution he written entirely on a sheet separate from the summons, and only connected with it by stitching, it cannot be sustained, unless it names and designs the parties. The only question, therefore, in the present case is, whether the execution does bear expressly the ‘names and designations of the parties, pursuers and defenders.’ The Lord Ordinary is of opinion that the pursuer, Mr Andrew Clason, is sufficiently named and designed, and that the reference to the summons does not hurt this. He further thinks that the only defender objecting, Mr Campbell, late of Craignure, is also sufficiently named and designed. But the point of difficulty is, that in the execution against him, a number of the other defenders called by the summons are not named and designed at all. The Lord Ordinary is afraid that this cannot be held to be a compliance with the statute, the object being to let the party cited know precisely what the summons is, and who are the parties to it, on which he is cited to appear. It is said that there is practice in conformity to the course here adopted. But the Lord Ordinary does not think that he can safely proceed on that, against so positive a statutory rule.”

¹ Ante, IX. 261.

² Ante, XI. 30.

³ Ante, XII. 674.

The pursuer reclaimed, contending that no objection lay to the execution in question on the act 1672, c. 6, and that it was the practice, and sufficient in law, to name and design only those defenders against whom the executions were returned. He also referred to the case of Donaldson, ¹ Nov. 29, 1750, where, in an action of exhibition, an objection of no process, in respect that the execution against the objector did not contain the names of the other defenders, was repelled.

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¹ Kilkerran, p. 169 (3746).