In an action to have the Magistrates liable for a debt, it was found, that the horning, as well as the caption, must be produced.
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The Bailies of Kilrinny being pursued at ones instance for not taking of a rebel, conform to letters of caption directed against them, whereby they were charged to take the rebel, he being in their company for the time, and therefore they were pursued for payment of the sum for which the rebel was denounced; in this process, the Lords found, That they would not sustain this action, by the production of the letters of caption against the Bailies, except the letters of horning were also produced and shown, which was the warrant whereupon the caption was directed; albeit the pursuer alleged and answered, That he ought not to be compelled to produce the horning, seeing the disobedience of the charge of caption was the foundation of this action, and was sufficient against them, who ought to dispute if there was horning or not, seeing the Judge saw the horning before he granted caption thereupon, and it was not their part to inquire any further, but to obey. Which was repelled, and the horning ordained to be produced to the pursuer.
Clerk, Scott.
Fol. Dic. v. 2. p. 181. Durie, p. 137.
