A person pursued declarator of another's escheat, and produced a separate horning, by which he offered to debar him from defending. Found, that the defender ought to be relaxed, before he could proceed in his defence.
Click here to view a pdf copy of this documet : PDF Copy
In a declarator sought of the Laird of Foulis's liferent, the gift being granted upon diverse hornings therein specially mentioned, whereof some were produced and used by the donatar, whereupon he craved the declarator; and another was produced to debar the defender a defendendo, which he declared he used only to that effect to debar him, because he was rebel unrelaxed, and used it not to recover declarator thereon, albeit it was also expressed in the gift; and the defender offering to improve the same, and alleging, that so he could not be debarred thereby till it was tried if it was false or true; and the pursuer answering, That he could not be heard to compear to propone either improbation or any other allegeance so long as he stood rebel unrelaxed. The Lords found, That he ought to be relaxed or ever he could be heard to propone improbation, seeing that horning, albeit it was contained in the gift, yet it was not used by the pursuer to recover declarator thereon, but only to debar him.
Alt. Russel.Alt. Lawtie.Clerk, Gibson.
Fol. Dic. v. 2. p. 85. Durie, p. 202.
*** Spottiswood's report of this case is No 4. p. 5732, voce Horning.
