Scottish Court of Session Decisions

Subject_1 EXECUTION.
Subject_2 DIVISION IV.

The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. VI.

Public Reading and Oyesses.

Gordon
v.
Forbes

Date: 15 February 1681
Case No. No 116.

The Lords declared they would reduce all executions made at the market-cross of Edinburgh, and pier and shore of Leith, which did not bear that three oyesses were given.

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Gordon of Park having pursued reduction, and improbation of a summons, and executions thereof, in anno 1633, for reducing the ratification of a right to the estate of Balvenie upon a minority and lesion, the reason of reduction against this summons is, that the executions being at the market-cross, were null, not bearing three oyesses. 2do, They were false; whereupon the writer of the executions, and other witnesses being examined, they did depone, that the executions were written in anno 1659, as they were dated by Alexander Abernethy, albeit the executions bear, to have been done by a Sheriff in that part, in anno 1633. And it seemed to the Lords that it was but feinzied, and the summonses of reduction were all blank, and never filled up, till 1659. It was answered, That there is no law nor statute requiring three oyesses at market-crosses, but though that use is sometimes to be added in executions, yet it is sufficient, that the executions bear, that the messenger or executor made publication thereof, at the market-cross. The Lords having appointed the Lord Register to inspect the register of inhibitions, whether they bear ordinarily three oyesses, he did report they did not, but that it was more ordinary they did bear, ‘that the messenger made publication’ But the Lords having advised the testimonies of the witnesses of the improbation, found the executions improven as false, and so had no necessity to determine upon the nullity for want of the three oyesses; but upon that occasion, they ordained an act of sederunt to be made, and publication by proclamation, that albeit by an evil custom, commonly practised, the executions of inhibitions and summons, and other diligences, at the market-cross, did only bear, that the messenger ‘did make publication of the letters,’ not expressing the manner how, ‘by three oyesses,’ whereby the lieges were exceedingly prejudged; these oyesses being the mean to publish the letters, and to cause the people take notice, that the parties concerned might be advertised; therefore the Lords did declare, that in all executions to be made hereafter at the market-cross of Edinburgh, or pier of Leith, it should particularly be exprest, that three oyesses should be given by the executor, in an audible voice, before the reading of the letters, otherways the Lords would not sustain such executions of letters, which bore only, that the executor made publication of the letters.

Fol. Dic. v. 1. p. 266. Stair, v. 2. p. 859.