A decree being reduced, the horning fell of consequence, altho' the Officers of State interested for the escheat, were not called.
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In a reduction of a decreet of removing, wherein the horning executed upon that sentence was called to be reduced in consequentiam, particularly as falling of the decreet should fall; the Lords found, to this reduction of the horning, which was but sought in consequence, as depending upon the decreet of removing, that the King's thesaurer and advocate needed not to be called as in other reductions, where the horning is principally called to be reduced, and where there are special reasons libelled to reduce the horning; whereas there was no reasons libelled against the same, but only desired to fall in consequence, and which would ensue in law by the general inference, if the decreet should be reduced, that all following thereon would fall; which general would be also effectual, albeit the horning was not specially craved to fall in consequence, to make the same to fall, as it is now when it is specially desired; and, as to the general inference, the King's officers need not to be called, so no more needed they to be called to the special.
Act. Nicolson and Mowat.Alt. Aiton and Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 351. Durie, p. 472.*** Spottiswood reports this case:
The Laird of Hirdmeston assignee constituted by David Vaus, pursued a reduction against Mr George Butler, of a warning made to his cedent by the defender, and of a decreet of removing following thereupon, as also horning, and other compulsorials in consequentiam only; whereas there were libelled reasons against both the warning and decreet of removing. Alleged, No process, because all parties having interest were not cited, viz. the King's thesaurer and advocate, who behoved to be called to the reduction of a horning. Answered, If he had libelled any reason against the horning, and sought it to be reduced principaliter, the allegeance were good; but in respect he desired it only to be reduced in consequentiam, there was no necessity for calling them. The Lords were not all of one opinion. It was confessed by all, that if the summons had been conceived, to hear and see the horning, decreet of removing, and all other things following thereupon, (generally) reduced, the King's officers needed not to have been called thereto; because, after the decreet of reduction, there would have behoved a declarator of the nullity of the horning depending thereon to follow, in which they would have been called; but because he had libelled, to hear and see the warning, decreet of removing, and horning following thereon, (particularly) reduced; some of the Lords thought, that the King's officers should have been called, seeing the King might be prejudged of the casualty that had fallen to him through the horning, if it were taken away. Yet the most part repelled the allegeance.
Spottiswood, (Reduction.) p. 270.*** Auchinleck reports this case:
In a reduction of a decreet of removing, whereupon horning followed, although the horning be called for to be produced, yet if no special reason of reduction be libelled against the horning, but to have them reduced and declared to fall per consequentiam, there is no necessity in this summons to call the treasurer and the King's advocate for their interests.
