A horning found good, though three years intervened betwixt the charge and the denunciation, because intimation had preceded the denunciation.
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L. Lauchop having right from the donatar of umquhile Gavin B. of Galloway's liferent, after general declarator, pursues by special declarator, the intromitters with the duties of his benefice pertaining to him, of certain years addebted to the said umquhile Bishop, wherein the horning being produced whereon the gift and declarator proceeded, the defender alleged the horning to be null, because there intervened three years betwixt the execution of the charge and the denunciation; which allegeance was repelled, and notwithstanding thereof the horning found sufficient and well executed; because, before the denunciation there proceeded an intimation made to the umquhile rebel two days before he was denounced; which intimation proported, that the party at whose instance the horning was executed, had obtained a protestation before the Lords of Session against a suspension of these charges, purchased by the said umquhile Bishop, by which protestation the letters were ordered to be put to execution, which being so intimated to the said umquhile Bishop by the officer, the Lords found the officer might thereafter denounce; and the denunciation being made within two days after the said intimation, it was found sufficient, and that there needed no new charge to have been given by the messenger: For the alleged length of time that intervened since the said first charge, as the defender alleged, ought to have been given before he could have been denounced, and that the intimation was not enough to warrant the denunciation without a new charge, especially such an intimation upon two days allenarly before the denunciation; like as they alleged, that if any intimation might be sustained to supply the charge, and sustain the horning, yet the same ought not to be upon so short a space as two days, but that there was requisite as many days to have intervened after the making of the intimation, before the party could be denounced, as were requisite to the charge, after the expiring whereof, denunciation might be made by letters of horning and warrant thereof; so that if the charge was requisite to be given upon six days, or more or fewer as the warrant appointed, so the intimation ought to have been made upon no fewer before the officer could lawfully denounce; which allegeance was repelled, and the horning, with the intimation made, as said is, and the denunciation following thereon, were sustained.
Act. Hamilton &c.Alt. Neilson.Clerk, Scot.
Durie, p. 724.
