Scottish Court of Session Decisions

Subject_1 EXECUTION.
Subject_2 DIVISION II.

Where Parties must be Cited, and Execution done.
Subject_3 SECT. II.

What is understood to be a party's dwelling-house.

M'Culloch
v.
Gordon

Date: 11 February 1674
Case No. No 29.

A charge of horning given at a debtor's house in the country, was sustained, though he had lived more than 40 days in Edinburgh, prior to the charge.

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Sir Alexander M'Culloch having taken a gift of the escheat and liferent of William Gordon, in name of John Blain his servant, pursues declarator. The defender alleged absolvitor, because the horning and gift were null, whereupon he had raised reduction and improbation, and repeats his reasons by way of defence, viz. That the charge of horning was given in the night time, whereas poinding and all legal executions should be in the day time, especially being done at dwelling-houses, and not personally. 2do, The messenger or witnesses employed by Sir Alexander, did take back the copy, that it might not come to William's knowledge, being then at Edinburgh. 3tio, William had been more than 40 days at Edinburgh, and so his domicile was changed into Edinburgh, and he was not charged there. 4to, The gift was null, as being surreptitiously obtained from the King, containing an extraordinary clause, “to be without back-bond.” which clause was not mentioned in the docquet, which docquet, or the draught thereof, was drawn at Edinburgh by Sir Alexander, or his writer, by advice and Consultation to leave out that clause out of the docquet, dispensing with the back-bond. To all these it was replied, That the reduction and improbation could not be received by defence, not being seen and returned; for it was so found against Sir Alexander in the declarator at William's instance against him; and as to the particular reasons, it was answered, that no law had determined the time of giving charges of horning; and if a nullity were sustained upon that account, it might be the foundation of quarrelling of most hornings, both to the prejudice of the King and creditors; and as to the taking away of the copy of the charge, it is not relevant in itself, nor can be made use of against the pursuer, unless it had been done by his warrant or direction, probable only by his oath; for he is not countable for the fault of the messenger or witnesses, nor is it relevant that he was 40 days in Edinburgh, and not charged there, because the domicile remained in Galloway, where he had larem et focum, so that a charge against him in either place might be sufficient.

The Lords found, That seeing the reasons of reduction were fully debated, they would take them in by exception, but would supersede extract till Sir Alexander's reduction were also discussed; and found that reason of reduction relevant, that the messenger or the witnesses employed by the pursuer did take away the copy of the charge, without necessity to allege any further command, than that he employed them; but found not the giving of the charge in the night time relevant per se, nor the residence in Edinburgh 40 days; and found that the tenor of the docquet did not annul the gift, but reserved to the defender to make application for obtaining a back-bond in favours of the creditors, for making the pursuer countable, as if a back-bond had been granted, as accords, and that the Exchequer was proper in that case, which had already past the pursuer's gift without a back-bond; the same allegeance being proponed upon the docquet.

Fol. Dic. v. 1. p. 259. Stair, v. 2. p. 264