Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Robert Eliot
v.
The Earl of Buccleugh

Date: 24 February 1637

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Caution being found by the Earl of Buccleugh to desist and cease simpliciter, in obedience of a decreet of removing recovered against him by the said Robert Eliot, under the pain of 50 pounds toties quoties; and thereupon the charge upon the decreet being suspended simply thereafter, the said Robert Eliot, upon the extract of the said decreet suspending the letters, whereupon caution was found, charges the said Earl, by letters of horning raised upon the said act of cautionary, to pay the said sum: which being suspended as an unlawful charge, so summarily to use horning, for payment of that sum, except that there had been ordinary actions intented first, to have heard it been tried, that the defender had contravened the act of caution, and so had thereby incurred the pain; which not being done, such charges could not be sustained to charge by letters of horning first, and then to try; which in effect is to raise execution before the debt be constituted for the which execution is used; for if, upon thir letters of horning, lie had been denounced, that horning could not have been sustained to make his escheat fall, and consequently the letters and charges could not been so summarily executed. The Lords, although they found that, in form, and by rigour of law, no such charges of horning could be direct, except it had been first tried, in an ordinary pursuit, that the party had contravened, (which they found ought to have preceded;) yet, in respect of the distress of this party, who was a mean gentleman, and heavily prejudged by sundry occasions, which had made his estate weak, they found that they would sustain this charge as a pursuit, for trying of the contravention; for the party offered, in this place, to prove that the Earl possessed the lands continually since the caution was found; and therefore they assigned to the Earl's procurators a competent day to answer to this contravention; which they found they would try and discuss in this place, without any further pursuit to be intented thereanent.

Act. Nicolson and Scot. Alt. Mowat and Hart. Gibson, Clerk.

Page 829.