A pursuer was debarred by a horning, although the writ which he founded on bore to be entered into for the behoof of another who offered to insist.
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The Laird of Ruthven's taking burden upon him for my Lord of Dirleton, contracted with Andrew Kerr and young Innermerk, anent the conquest from them of the lands of Fenton; in the which contract, Ruthvens took them bound to pay certain farms to my Lord of Setoun, or to him to my Lord of Setoun's behoof, and thereupon having charged Andrew Kerr to pay the said farms, and litiscontestation being made in the cause at the term of probation, witnesses being produced, Andrew Kerr gave in horning against Ruthvens. It was alleged the horning could not stay the reception of the witnesses, because Ruthven was not contractor nor party in this cause to his own behoof, but to my Lord of Setoun's, and therefore the witnesses behoved to be received to my Lord of Setoun's effect, to whose commodity Ruthven's pursuit tended; nevertheless, because the charge was raised by Ruthven, and the suspension only raised and executed against him, the Lords found no process in respect of the horning.
