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John Forbes of Knaperny, v Captain John Grant and Grant of Dalahaple. [1708] Mor 3805 (20 July 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor0903805-159.html Cite as:
[1708] Mor 3805
Clauses implying or importing particular legal steps of execution.
John Forbes of Knaperny, v. Captain John Grant and Grant of Dalahaple
Date: 20 July 1708 Case No. No 159.
An execution was found good, though it bore that a - - was left, the word copy being omitted.
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In a competition for Major Alexander Anderson's share in the African Company, betwixt Knaperny, who had intimated an assignation in his favours to the Directors, and Captain Grant and Dalahaple, who had arrested the same in the hands of the Company and Commissioners of the Equivalent, before the other's intimation, Knaperny alleged, That he ought to be preferred, because the executions of the arrestment bore not, ‘that a copy was left at the African Company's office;’ and though the messenger hath helped the executions, they cannot be sustained to his prejudice, having been once null by act of Parliament; for the deed of a messenger cannot take away a creditor's jus quæsitum, by supplying the nullity of an execution, after it is once in judicium deductum, and quarrelled.
Answered for the arresters; The executions are unquestionably valid; for they bear, “this I did after the form and tenor of the said letters in all points, whereof I left a just for the said Directors and Managers, with their servants in their office,” &c.; and thereafter these words, ‘the said copy bearing the date hereof, witnesses names and designations;’ and the copies are duly recorded in the African books. Now, ‘I left a just’, could in nature imply nothing but a copy; and the word ‘copy’ is added and signed on the margin, before any interlocutor in the cause, by the messenger, who abides by the verity of it. And was it ever heard that a writ was declared null for want of one word in one place of the body of it, where such a word is exprest in the same clause, and necessarily understood where wanting.
The Lords repelled the objection against the arrestments, and preferred the arresters.
