The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. II.
Designation of the Dwelling-place.
Creditors of Creighton v. His Majesty's Cash-keeper
Date: 8 February 1684 Case No. No 89.
Found as above.
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The Creditors of Creighton of Castlemayns against Mr George Dickson advocate, and Hugh Wallace, cash-keeper, for his Majesty's interest, seeking to reduce a horning whereon a gift of escheat was taken, on this nice point, that the messenger's execution of the charge of horning given to the debtor, did not design his dwelling-house, whether in town or in the country; and which nullity was sustained in Durie, 14th July 1626, Adam against the Bailies of Ayr, No 87. p. 3748; yet, see a contrary decision in Durie, 9th November 1632, Montgomery against Fergushill, No 88. p. 3749.
This being advised on the 12th of February, the Lords found this horning to be in the case of Durie's second decision in 1632, where the rebel's house was found sufficiently designed, because the rebel is designed in the execution of the charge of horning by his style of Castlemayns, and they offered to prove, in fortification of the horning, that he then dwelt there.
Fol. Dic. v. 1. p. 263. Fountainhall, v. 1. p. 268.*** President Falconer reports the same case:
In the action of general declarator, pursued by Mr George Dickson of Buchtrig, advocate, as donatar to the escheat and liferent of Crichton of Castlemains it was alleged for Mr James Nasmith, John Riddoch, and several others, Creditors of Castlemains, That the horning was null, in regard the charge did bear, that the same was given at his dwelling-house, and did not design the place. It was answered, That this being a third gift, the horning was twice declared in the two former gifts against the rebel; so that the rebel could object nothing against it; and if the rebel could object nothing, no more could any of his Creditors since the rebellion, or who had any voluntary rights derived from him since the declarator; and that there was no act of Parliament, nor instruction given to the messenger, appointing executions of charges of horning, to bear the particular designation of the dwelling-house; likeas, by a decision in anno 1632, betwixt Montgomery and Fergushill, No 88. p. 3749, the Lords sustained the horning, albeit the dwelling-house was not particularly designed, the rebel's style and dwelling-house being all one; and so it was presumed, that the dwelling and place of designation was the same. It was answered for the defenders, That the designation of a dwelling-house, was absolutely necessary, or otherways it were impossible to prove an execution: Likeas, in anno 1626, No 87. p. 3748., there was an express decision, annulling an horning used against a burgess in Ayr, in respect his dwelling-house was not particularly designed; and by warrant of the Lords, the register having then searched whether it was usual, in executions of hornings, to design the dwelling-house, he made report, that there were in the records several hornings about that time, in which the dwelling-house was not designed. The Lords found it relevant to sustain the horning, that Castlemains’ dwelling-house was called Castlemains, and that being proven, it was presumeable he was charged thereat, according to the foresaid practique 1632.
Pres. Falconer, No 80. p. 54.*** Harcarse also reports the same case:
In a general declarator of escheat, it was alleged for the defender, That the horning was null, in so far as the execution of the charge bore, that the party was charged at his dwelling-house, without designing the dwelling-house, as was decided July 14. 1626, No 87. p. 3748. For horning, that is of so great import against the lieges, ought to be executed with its due solemnities; and if the dwelling-house had been wrong designed, the designation could not have been altered; whereas, now the charger may condescend upon any place he finds most convenient.
Answered; There being neither act of Parliament, nor fixed custom, for designing the dwelling-house in the execution of a charge, the want thereof cannot nullify the present horning. And it appears by a report from the Clerk-register, that some executions in the year 1657, (about the time that the quarrelled execution was used) did likewise want the designation of the dwelling-house; and to sustain such a nullity in executions might overturn many diligences. As to the practique 1626, that was a single decision, and the Lords never so determined since; but, on the contrary, November 9. 1632, Montgomery contra Fergushill, No 88. p. 3749., an execution not designing the dwelling-house was sustained; and this execution ought the rather to be sustained, that it was never quarrelled till now, though three gifts have been expede upon the same horning, and former donatars obtained full satisfaction and payment.
Replied; As to the practique 1632, Fergushill being both the rebel's style and the name of his house, the execution bearing that he was charged there, was sustained, as being a compendious designation of both.
Duplied; Castlemain's house went commonly under the name of that same title; and so the defenders are in the precise terms of the practique 1632.
The Lords, waving the other points of debate, ‘Found the duply relevant to sustain the execution, and assoilzied from the reduction.’
