Denunciation of Comprising. - Denunciation upon Horning. - Relaxation.
Paterson v. Fermour
Date: 20 November 1672 Case No. No 61.
Horning found null, as not executed at the cross of Edinburgh, in which city the rebel had his house and furniture.
Click here to view a pdf copy of this documet : PDF Copy
John Paterson pursues a declarator of the escheat of John Fermour, who having alleged that the horning was null, he being denounced at Cupar in Fife, whereas his dwelling and domicile was at Edinburgh; whereupon the Lords, that they might not give either party the sole probation of the domicile, did, before answer, allow either party to adduce witnesses. The pursuer adduced five, all conform, proving that Fermour, with his wife and bairns, came to Anstruther in the middle of March, and staid at his good-brother's house, being an ale-house, till the date of the denunciation, which was upon the 16th of May, and thereafter till about Whitsunday. The defender proved by as many witnesses, that he had a house taken in Edinburgh from Whitsunday to Whitsunday, and that he dwelt therein during that time; and some of them deponed, that he, his wife, and one bairn, went over and staid about their business of Balcomy in Fife, 20 days; and most of them deponed, that they were his nearest neighbours, and saw him frequently come and go to his house, but could not depone how long he was there, or how long he was absent about his business.
The Lords found, That albeit a domicile by 40 days staying at any place, though in an inn or hired chamber, might be sufficient to sustain a citation made there, yet not to constitute a domicile, whereupon denunciation and escheat might follow, or whereupon the confirmation of a defunct's testament might fall to the Commissary of that place; but as to these the principal domicile behoved to be considered; and found, that by the probation foresaid, Fermour's principal domicile was at Edinburgh, where he had his house and plenishing, and was the most part of his time; and therefore found the denunciation at Cupar null, and assoilzied.
