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Scottish Court of Session Decisions >>
Earl of Seafield v The Creditors of Boyn. [1709] Mor 3806 (23 February 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor0903806-160.html Cite as:
[1709] Mor 3806
Clauses implying or importing particular legal steps of execution.
Earl of Seafield v. The Creditors of Boyn
Date: 23 February 1709 Case No. No 160.
Found as above.
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In the declarator of single and liferent escheat of Sir Patrick Ogilvie elder, and James Ogilvie, younger of Boyn, pursued by the Earl of Seafield, the Creditors alleged, That the Earl's gift could not be declared, the execution of the horning whereupon it proceeded being null quoad James Ogilvie, in so far as it bears not, that the messenger left a copy, but only, “That he left a just and authentic, in the lock-hole of the most patent door of James Ogilvie's dwelling-house.” Now, seeing the execution bears not a copy to have been left (which is a substantial in executions against those not personally apprehended) it must be presumed that nothing was left to certiorate the party: And one not certiorated cannot be said to be cited; especially in the execution of a horning, which is the foundation of a penal diligence.
Answered for the pursuer; The simple omission of the word copy per incuriam of the writer, cannot annul the Earl's diligence; especially considering, that the word authentic doth sufficiently import an authentic copy. Because there is mention of a copy in the former part of the executions; and, the word authentic is to be taken secundum subjectam materiam. For as by authentics subjoined to the imperial constitutions, are understood legislative authentic constitutions, so an authentic delivered in an execution, must be understood of such an authentic as the matter requires. Nor doth it alter the case, that this is an execution of horning; though, in some material points, executions of horning are more strictly interpreted, than those of summonses.
The Lords repelled the objection against the execution.
