A horning upon an act of adjournal of the court of justiciary, against a person out of the kingdom, need not be denounced at the pier and shore of Leith; but only at the market-cross of Edinburgh.
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Mr Patrick Scheill, as donatar by the Marquis of Douglas to Thomas Ogilvie of Logie, his single and liferent escheat, having pursued a general and special declarator against Logie, and Mr Robert Scott, minister at Hamilton, for the rents of the lands of Logie, which are a part of the regality of Killimuir, whereof the marquis is superior, alleged for the defenders, That the horning upon which the gift proceeded was null, because the denunciation was only at the market cross of Edinburgh, and not at the pier and shore of Leith, Logie being out of the country for the time.; and albeit the horning should be sustained, yet Mr Robert Scott ought to be preferred to the rents of the lands, because Logie being formerly year and day at the horn, the marquis did grant a gift of his liferent escheat to the Lord Torphichen, who was a creditor of Logie's, so that his liferent escheat being once gifted to the Lord Torphichen, it cannot fall or be gifted to any other; for, whatever may be pretended in the case of a single escheat, it comprehends only the moveables belonging to the rebel the time of the gift, and within year and day thereafter; yet, it is not so in the case of a liferent escheat, which comprehends the rents of the lands during the rebel's lifetime; so as a man cannot have two lifetimes, so neither can there be two liferent escheats. Answered, That the denunciation of the horning, upon which the gift proceeded, being upon an act of adjournal of the justice court, it is sufficient that the denunciation be at the market-cross of Edinburgh, as it is declared by the 126th act, Parl. 12. James VI. And the first gift granted to the Lord Torphichen was to Logie's own behoof, and as equivalent as if it had been given to himself, and so became extinct; and he thereafter being year and day at the horn, his liferent escheat did again fall to the superior, and may be gifted to a second donatar. The Lords found the denunciation at the market-cross of Edinburgh sufficient to make the liferent escheat fall; and, before answer to the second point, ordained the pursuer to condescend, quo modo he can instruct that the gift taken in the Lord Torphichen's name was to the rebel's behoof.
Fol. Dic. v. 1. p. 261. Sir Pat. Home, MS. v. 2. No 934.
