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Scottish Court of Session Decisions >>
Duke of Hamilton v Castlemilk. [1682] Mor 3727 (27 January 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Mor0903727-064.html Cite as:
[1682] Mor 3727
Denunciation of Comprising. - Denunciation upon Horning. - Relaxation.
Duke of Hamilton v. Castlemilk
Date: 27 January 1682 Case No. No 64.
A person being denounced at the cross of Edinburgh, and it not being mentioned that he lived in that county, a proof was allowed that he did live there.
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The Lords inclined to find an execution of a charge of horning null; for that it bore the party to have been charged at his dwelling-house, and did not design the dwelling-house as in such a town and shire; but the point was not voted.
Thereafter another execution being quarrelled as null, for that it is said only, that the messenger passed to the market cross of Edinburgh, without mentioning that it was the head burgh of the shire where the party dwelt; and that it not being asserted in the execution, that he lived within the shire of Edinburgh, his escheat and liferent could not fall by that denuciation; especially considering, that it is usual to denounce persons at Edinburgh, in order to caption, who live in the north.
The Lords, upon the pursuer's offer, allowed him, in fortification of the denunciation, to prove, that the rebel lived the time thereof within the shire of Edinburgh; and declared they would advise the probation incidenter, without the order of the roll, in respect the pursuer allowed, ex gratia, the defender to propone the reason of reduction raised at his father's instance, before it was transferred, or the defender so much as served heir in general or special.
February 1. 1682.—But the execution being registrated with that nullity, it is debateable if it can be supplied by such a probation; and probation being led, the Lords found, That Sir Ludowick, the time of the denunciation, lived at Edinburgh; and therefore sustained the denunciation, and decerned.
