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Douglas v Wardlaw. [1630] Mor 2714 (30 November 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor0702714-032.html Cite as:
[1630] Mor 2714
Objections to Hornings, whether proponable by Exception.
Douglas v. Wardlaw
Date: 30 November 1630 Case No. No 32.
In a declarator of escheat, it was found not enough to except that before denunciation the debt was paid and discharged, but the horning behoved to abide a reduction, to which the Officers of State must be called, because the rebel and creditors might collude in prejudice of the fisk, by antedating the discharge.
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James Douglas, macer, being donatar to the escheat of Mr John Wardlaw, and pursuing declarator thereon, the defender alleged, That the horning was null, because, before the denunciation, the party had made payment of the sums charged for, so that thereafter he could not be lawfully denounced; and the party having paid, he needed not have suspended, having in due time obeyed the charges. This exception was not received hoc loco, to stay the declarator, being proponed by way of exception, to take away a horning standing, summarily, which could not be taken away but by an ordinary action, whereto the King's Advocate and the party charger behoved to be called, and wherein trial must be taken upon the true date of the acquittance of payment, which is not proper in this process; therefore action of reduction was reserved to the party upon that reason.
Clerk, Gibson.
Fol. Dic. v. 1. p. 171. Durie, p. 544.*** Spottiswood reports the same case:
In a general declarator of an escheat, it being alleged that the horning is null, because before the charge, or denunciation at least, the debt was paid, and discharge thereof given by the creditor; it will not be received, but the horning must abide a reduction, whereunto the King's Advocate and Treasurer must be called; for otherwise the rebel and the creditor might collude together in prejudice of the fisk and the donatar, by granting a discharge antedated. Found betwixt James Douglas, council macer, and the Creditors of umquhile Mr John Wardlaw, whose escheat James was seeking to be declared.
