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Scottish Court of Session Decisions >>
John Ewing Merchant in London, v Mr James Rochead of Inverleith. [1681] Mor 3803 (22 February 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor0903803-156.html Cite as:
[1681] Mor 3803
Clauses implying or importing particular legal steps of execution.
John Ewing Merchant in London, v. Mr James Rochead of Inverleith
Date: 22 February 1681 Case No. No 156.
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The Lords found an inhibition served against Mr Thomas Burnet, Mr James's author, null, because the publication bore not a copy left at the pier and shore of Leith, (Thomas then biding in Holland,) though it bore these words, a copy left at the market cross of Edinburgh, before these witnesses, at the market cross and pier and shore of Leith respective, conform to the tenor of the letters, which the Lords found not to be equivalent.
Fol. Dic. v. 1. p. 270. Fountainhall, MS.*** Stair reports the same case:
John Ewing, merchant in London, having arrested in the hands of Mr James Rochead all sums due to Mr Andrew Burnet, for satisfying of sums due by Burnet to him, pursues Rochead to make furthcoming; who having deponed that he was only debtor to Burnet for the price of Inverleith, and that he had paid most of the price for satisfying the real burdens on Inverleith by infeftments and inhibitions, and that what remained he had paid after the loosing of the arrestment, the pursuer objected against a sum paid to one Howieson upon an inhibition, That it was no real burden, the inhibition being null, as being executed at the market cross of Edinburgh, and pier and shore of Leith, and yet bears not a copy left and affixed at the pier of Leith; and the Lords have found in the case of Caskieben and others, No 143. p. 3786. ‘That deliverance or affixing of a copy is an essential solemnity in executions,’ the want thereof annuls them; 2do, Payment, after the loosing of an arrestment, is not relevant, if voluntary, without process; 3tio, The loosing was upon finding a cautioner, who is neither known nor solvent, for which Mr Andrew Burnet, who attested the cautioner, is liable.
The Lords found the inhibition null, not bearing a copy affixed at the pier of Leith, but at the cross of Edinburgh; and found the voluntary payment, after the loosing of the arrestment, valid as to Rochead; but found Burnet, the attester of the insufficient cautioner, liable for the sums paid by Rochead after the arrestment was loosed.
