Days, how computed. - Induciæ in a charge of horning. - Baron decrees. - Citations pro confesso. - Criminal sentences. - Induciæ before inferior courts. - Reductions and improbations. - Privileged summons. - Decree-arbitral. - Citation of tutors and curators.
Laird of Philorth v. Forbes of Aslocon
Date: 16 December 1664 Case No. No 13.
Horning sustained on a charge of six days beyond Dee, in respect it proceeded on a clause of registration.
Click here to view a pdf copy of this documet : PDF Copy
Philorth, as donatar to the escheat of Forbes of Aslocon, and having obtained general declarator, insists in his special declarator. It was alleged absolvitor, because the horning whereupon the gift was granted is null, in so far as, being beyond Dee, it is upon six days, contrary to the act 25th Parliament 1600, declaring all hornings beyond Dee, on less than 15 days, null, conform to a decission in Durie, albeit on a bond bearing a clause of registration on six days only, February 14. 1625 Stuart contra Bruce, No 10 p. 6855. It was answered for the pursuer, That the acts of parliament hinder not the agreement of parties, but are expressly anent hornings on lawburrows or the like; but these are on the parties' own consent by the clause of registration, and if these should not be valid, all the hornings and other executorials thereon beyond Dee since 1600 would be null, and such bonds would have no effect; seeing, upon the clause of registration, horning could not be otherwise directed on six days, and so they should not have any summary execution. The defender answered, That the act is general of all hornings, and bears a general reason, because it is impossible for parties at such distance, to come to Edinburgh to suspend in four days, and private pactions cannot derogate from general laws, where the express reason is for public utility, contrary to which, no man can make himself rebel, more than he can give power to incarcerate himself where law gives no warrant, but prohibits.
The Lords repelled the defence, and sustained the horning.
