An heir about to be served was protected by the Court from being debarred, because no creditor would be prejudged, and because he would have lost his action by prescription, if delayed.
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A supplication given in to the Lords at the E. Crawford's instance, craving, That seeing he was to serve himself heir to some of his predecessors before the expiring of the time of prescription, and that sundry of his creditors or other persons might produce hornings against him, whereby the Judge before whom his brieves were to be served might be hindered to proceed therein, and he would lose the benefit of the prescription; therefore that the Lords would give command to the Judge to proceed, notwithstanding of the hornings to be produced by any person, and to dispense therewith: The Lords found that they could not grant such a warrant, nor dispense therewith, that not being proper for them to do; but they ordained and found, that the supplicant should have a general relaxation and suspension from all hornings whatsoever, without necessity to express any particular, and which he might execute by a general execution of relaxation at the market-cross of Edinburgh without necessity of any particular citation, and which they declared they would grant, and granted the same to that effect, that his brieves might not be staid, but that the Judge and assizers might proceed therein notwithstanding of any hornings to be produced against the impetrator of the brieves; and, albeit there was a contrary supplication given in by the creditors and others who were infeft in the lands by the Earls of Crawford, that the hornings might have that effect which in law they ought to produce, yet the other bill was granted, and the creditors' bill refused; for the Lords found that the service would tend-to the creditors' benefit.
Fol. Dic. v. 2. p. 86. Durie, p. 520.*** Auchinleck reports this case:
1630. June 22.—Notwithstanding that the Lords refused a general relaxation from all horning to the Earl of Cassillis upon the day of his service, yet the like favour being craved by the Earl of Crawford and the Laird of Coss, by bill, the day of their service to one of the Earl of Crawford's predecessors; the Lords granted the desire of the bill, only ad huuc effectum, that they might have place to stand in judgment till they were served, without caution, which singular favour was granted for two respects; 1mo, Because, by their service, no creditor would be prejudged, but the debtor made more able to give his creditor satisfaction; 2do, In respect the prescription was so near, and if they lost this day, they lost their action for ever.
