GEORGE IZAT v Mrs ROBERTSON or KENNEDY and HUSBAND (Court of Session)

Izat raised the present action of damages against Mrs Kennedy, (and her husband, for his interest, and as her curator,) for alleged defamation. As a dilatory defence, she pleaded that the copy of the summons left with her was not signed, as required by the statute 1592, c. 141, by the officer-executor, as was instructed by the copy produced; that the statute was imperative, and had been acknowledged to be in force by several decisions; Baillie v. Nisbet, July 8. 1713, Mor. 3745; Loch v. Home, Jan. 15, 1706, Mor. 3759; Tait on Evidence , p. 12.

The Lord Ordinary (20th December 1839) sustained the defence, dismissed the action, and found the defender entitled to expenses. To his interlocutor his Lordship appended the following note:

But he has not thought it necessary to have any inquiry into the precise nature of the usage, because, when a statute, which Stair and the cases show is not in desuetude, prescribes a solemnity or enacts a precaution in a technical matter like this, where the excellence of a rule is of far less value than its being fixed, he does not think that practice can be allowed to supersede the law; but, besides, there are obvious reasons which recommend what the statute enjoins.

It is true that no nullity is attached to failure: the statute says nothing about what shall be the consequences of its being violated. But, in a matter of this kind, nullity is implied. If the thing be not done as the act requires, it is not done at all.’

The defender, besides quoting Stair, B. iv. tit. 38. § 15; Bank. B. iv. tit. 6. § 7, 9, stated , that the practice on this point was divided.