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Scottish Court of Session Decisions >>
Christian Beg v Thomas Rig of Morton. [1744] Mor 8345 (7 July 1744)
URL: http://www.bailii.org/scot/cases/ScotCS/1744/Mor2008345-024.html Cite as:
[1744] Mor 8345
Can Executions be Amended after being produced in Process? - Executions of Legal Diligence after Registration.
Christian Beg v. Thomas Rig of Morton
Date: 7 July 1744 Case No. No 24.
If an execution is objected to as null, it can be supplied by producing another after the process is called, given out, and defences returned.
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The pursuer having brought a process against the defender, the summons was called in the Outer-house the 9th June 1743, and given out on the 12th, with an execution subscribed by a messenger, but not by any witnesses; and, upon the 20th, was returned with defences written upon the back of the execution, objecting the nullity thereof, as wanting witnesses, in terms of the act 1686, which declares such executions void and null, and are not suppliable ex post facto, by the act 1681. This process was enrolled the 30th June, upon the said return; and being called before the Ordinary, and the same defence insisted on, the pursuer produced a new execution, signed both by a messenger and witnesses, with an instrument of protest, four days after the return, offering the process to be given out a second time, with the new execution, which was refused to be taken out, in regard signed defences were made to the first outgiving.
Upon this debate the Lord Ordinary repelled the defences, and the Lords adhered.
