Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Date: 11 November 1671
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It was Objected against a declarator of escheat, It was not tabled. Answered, 1mo, It needed not, since the rebel held no lands of the king. 2do, If he did, then his majesty's advocate's servant concurred for his majesty's interest.
2do,—It was objected that the horning whereupon the escheat was sought, is null, in so far as he is not denounced at the market cross of the Regality within which he then dwelt, and the lands lie. Answered, This being a general decla rator* only, it was not the proper place for proponing any defences to stop the same; but they behoved all to be reserved to the special. replied, If it were a partial exception, then he had some reason to plead it were incompetent hoc ordine; but for a total defence that takes away the whole libel, the same may very well be objected against the general declarator. The Lords found it might come in hoc loco.
Then alleged, That the horning could never be taken away summarily by way of exception, unless they were in an ordinary action for reducing thereof; seeing this pretended nullity was only nullitas facti non juris, and so behoved to abide trial and probation; viz. that he lived then within that shire and regality; which trial cannot be taken here, but in a process apart. This the Lords found relevant, and therefore declared; reserving reduction of the horning as accords. See Dury, 19th March 1678, Lamb; infra No. 423, [11th November 1673, Home against Craw.]
Then it was Objected, That the horning is yet null; and that by such an intrinsic nullity as verifies itself, needs no probation, and so must be received summarily in this process without any reduction: viz. it is not registrate within fifteen days, conform to the act of Parliament. That hornings ought to be registrate within the foresaid space, is proven by the law; that this is not so registrate, appears by ocular inspection, and needs no other trial; hence necessarily follows the conclusion that this horning is null. Vide act 75, Parliament 1579. The Lords found this nullity receivable by way of exception.
Then it was answered, The act of Parliament requires only fifteen free days, neither accounting the day of the denunciation, nor that of the registration; conform to which rule this horning is duly registrate, seeing it is registrate on the sixteenth day after the denunciation.
The Lords sustained the registration as lawful. Vide Hadington, 3 December 1611, Lord Torphichen contra Earl of Mar; see act 42, in 1555, and the many laws there cited.
Advocates' MS. No. 252, folio 112.
*Exceptions not against the executions of the summons and the legality of the hornings, can only be objected against a general declarator of escheat.
