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Scottish Court of Session Decisions >>
Sanders v Jardine. [1681] Mor 3791 (23 November 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor0903791-147.html Cite as:
[1681] Mor 3791
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. XII.
Executions bearing in general to have been lawfully gone about.
Sanders v. Jardine
Date: 23 November 1681 Case No. No 147.
An expired comprising was found null, because the execution bore not delivery of a copy to the debtor, but only that he was personally apprehended, and lawfully warned.
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In the action of reduction pursued at the instance of James Sanders donatar in a gift of the ultimus hæres of James Monteith against George Jardine, wherein he craves an apprising deduced in anno 1653, against the said James Monteith, at the instance of Fullerton, from whom Jardine derived right, might be reduced upon this reason, that the comprising, and execution of the letters bear not, that there was a schedule delivered to the party, but only bore, that he was personally apprehended, and lawfully warned; which reason of reduction, The Lords found relevant to take away the comprising simply, albeit it was expired; in regard they found, that unless a schedule had been delivered to the party, he could not come prepared to the leading of the comprising, or know what sums he was to pay to the creditor, who intended to deduce the comprising, for himself, or as assignee by others.
Fol. Dic. v. 1. p. 269. P. Falconer, No 3, p. 1.*** Harcarse reports the same case:
The Lords reduced an apprising simpliciter, and would not sustain it as a security for the principal sum and annualrent, upon this ground, that the execution of the denunciation of the lands did bear only that the debtor was lawfully warned, conform to the will of the letters, personally, and not that a copy was delivered; because, as in absence, copies ought to be left at the dwelling-house, so copies ought to be delivered to the party, when personally apprehended; and the execution ought to bear expressly, that copies were left, which was not found imported by the general of ‘lawfully warned,’ although we have no positive act appointing copies to be delivered to parties apprehended personally in civil actions, as there is for delivering of copies in criminal causes Queen Mary, Parliament 6, cap. 33. But the common stile of executions of denunciations mentions the delivery of copies to such as are personally apprehended.
