Competent to a Defender to found upon a third party's interest, or other argument, to show there is no ground of claim.
William Potter v. William Baillie
Date: 28 November 1628 Case No. No 12.
Found in conformity with Caddell against Vauss, No 10. P. 7787.
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William Potter having charged William Baillie, one of the Bailies of Inverness, to take and apprehend John Cuthbert, by virtue of letters of caption; thereafter he convened the said Bailie to make payment to him of the sums owing to the pursuer by the rebel, as being become debtor to the pursuer ex delicto, for not obeying of the charge. Alleged, No process, till the horning whereupon the caption proceeded, were produced; which if it were, he would allege the horning null, and so the caption following thereupon could be no sufficient warrant to take the rebel. The Lords repelled the allegeance. 2do, Alleged, No process upon the summons while they were tabled and continued, by reason the same consisted in facto, and must abide probation. Answered, Ought to be repelled, because the summonses were privileged, and that they were accessory to the executions of the Lords' sentence, and depending upon the executions of the saids letters of caption, which are the chief part of the executions of the said sentence. The Lords repelled this allegeance also. 4th December 1628.—Afterwards the defender produced the horning himself and alleged absolvitor, because it was null, and so he had no necessity to obey the charge direct upon that horning. The nullity was this, that the rebel was charged by the said letters of horning in Inverness, where he had his residence, as the charge bore, and was denounced rebel at the market-cross of Aberdeen; whereas it should have been, conform to the act of Parliament, at Inverness. Answered, The horning could not be taken away hac via, but behoved to abide a reduction; and albeit the horning were null, yet that cannot excuse the defender, who was obliged to obey the charge of the King's letters while the rebel had freed himself by order of law; or otherwise it would open a door to disobedience of the laws. “The Lords found the allegeance upon the nullity of the horning relevant, and therefore assoilzied the defender.”
Fol. Dic. v. 1. p. 516. Spottiswood, (Caption.) p. 31.*** Durie reports this case:
1628. November 28.—In this action a Magistrate being pursued for the debt, for not taking the rebel, he being charged for that effect, and he alleging, that the horning should be produced, which was the ground of the charge of caption, and which he alleged was null; the Lords found no necessity to produce the horning against the rebel, in this judgment and action against the Magistrate; but the defender might produce the horning himself; as also such actions needed not to abide continuation, where the summons has a privilege.
Act. M'Gill.Alt. Gibson.Clerk, Scot.
1628. December 4.—In the cause, Potter against Baillie, mentioned 28th November, the Lords found, that Magistrates, in such actions as these, when they are moved against them for payment of the debt, for disobeying of charges of caption, might propone nullity of the horning against the rebel, which was the ground of these charges of caption, and that they might deny to obey such charges upon their own hazard; for if the horning be null, the Lords found, that the not satisfying of the command of the caption could not produce that action; and found that the defender himself might produce the horning, and oppone against the lawfulness thereof, albeit the pursuer should be urged to the production thereof, and this horning was found null, because the execution of the charge bore, “that the party was charged at his dwelling-place in Inverness, and he was denounced at Aberdeen;” so that either the charge or denunciation was not good, and so the horning fell; neither was it respected, that the charge was intimated personally to the party apprehended after the charge, seeing the intimation was not a charge, for it bore not a copy to be delivered; and there was no probation received anent the parties' dwelling at the time of the charge or denunciation, but in respect the horning bore, as is above written, it was found null in itself.
