Horning at the cross of Edinburgh against a person not residing in the shire, though it is a warrant for caption, does not debar the party from standing in judgment.
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Glasclun having pursued Ballerd for payment of certain feu-duties, he proponed a defence. The pursuer debarred him with horning. It was alleged, That this horning being but a denunciation at the cross of Edinburgh, where the defender lives not, it was null contrary to the act of Parliament, requiring ‘denunciations to be at the head burgh of the jurisdiction where the denounced dwells;’ and therefore, upon denunciations at Edinburgh, no escheat falls, nor is any relaxation requisite, and so thereby parties were never accounted as rebels, not having personam standi in judicio. It was answered, That albeit escheats fall not upon such hornings, yet they are not null, for caption is always sustained upon them, and so they watch the person, though not the estate of the denounced. It was replied, That such hornings are truly null, and though long custom hath sustained captions execute upon them, whereby the party being present, is put either to satisfy or suspend, yet that is not to be enlarged or drawn in consequence to put the lieges to the necessity to relax from such hornings.
The Lords found that the denunciation at the cross of Edinburgh could not hinder the party denounced to have personam standi in judicio.
