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Scottish Court of Session Decisions >>
Forbes and Others, v The Earl of Kintore and Others. [1748] Mor 3781 (10 February 1748)
URL: http://www.bailii.org/scot/cases/ScotCS/1748/Mor0903781-136.html Cite as:
[1748] Mor 3781
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. IX.
Denunciation upon a Horning. - Execution against a Body-corporate.
Forbes and Others, v. The Earl of Kintore and Others
Date: 10 February 1748 Case No. No 136.
An action against possessors of a salmon fishing was dismissed, because, in the execution against one of the defenders, the names of the others were not mentioned.
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The Earl of Kintore, Forbes of Craigievar, and others, had long enjoyed, in form of a society, a conjunct possession of fishing salmon in the river Don, by means of cruives erected in that river; when they were attacked by Lord Forbes, and other heritors, upon the upper part of the river, concluding in their process, that the defenders should demolish their cruives, damages, &c. A no-process was objected upon the act 6th, Parl. 1672, to wit, that, in the execution against William Brebner, one of the defenders, none of the other defenders were mentioned.—Answered, That neither the statute nor any practice hitherto observed, requires that where a summons is executed at different times against several defenders, every execution ought to recite the names of the whole defenders; witness, processes of ranking and sale; improbations against creditors; processes against debtors, and others of the like nature; where the practice is to name only that single defender who is cited in the execution.
The Lords sustained the objection upon this ground, that the defenders were all connected together, and that it was necessary to call every one of them in the process. But it was the opinion of the Court, that in a process against several defenders, having no connection with each other, the objection is not good. For there, though all the parties be called in one summons, yet the case is the same as if there were as many different processes as there are different defenders, in which case there must be an execution against each of the defenders separately; and, the bringing them all into one summons, makes no difference as to this point.
In this cause, the Lords were of opinion, though they had no occasion to give judgment, That sustaining the objection of all parties having interest not being called, must have a further effect than barely to sist process till the party left out be brought into the field, by a new process to be conjoined with the former; that it must have the effect to cast the process altogether, leaving the pursuer to bring a more regular process. And this seems to be agreeable to the forms of the Court; for, if a party be not bound to answer, in respect that all parties having interest are not called, nothing remains but that he be dismissed from attending the Court.
