Horning against a superior cannot pass on a decree of adjudication obtained before a Sheriff, on a decree cog. causa. There is no record of abbreviates of such decrees.
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Murdoch King having obtained a decreet of adjudication upon a decreet cog. causa, before the Sheriff of Stirling, containing a precept against the superior for infefting him, he applied, in common form, to the Ordinary on the bills, to direct letters of horning against the superior.
The Lord Ordinary recommended to the keeper, and writers to the signet, to give their opinion what their practice was in such cases. The report was in the following terras:
“That they never had observed a horning pass thereupon, where there was no abbreviate, though some of the society have seen such adjudication, without abbreviates, but had no occasion to know whether horning followed or not: That the society are of opinion they are sufficiently warranted to present bills, and expede letters of horning upon such adjudications, though there be no abbreviate, provided such decreets contain precepts, directing horning against superiors.”
On report of the Lord Ordinary, the Lords refused the desire of the bill.
C. Home, No 214. p. 355.*** The same case is reported by Kilkerran:
December 14.
The said Murdoch King having an adjudication upon a decree cognitionis causa before the Sheriff of Stirling, against John Hunter cutler in Stirling, containing a precept against superiors for infefting the adjudger, applied in common form to the Ordinary on the bills for letters of horning against the superior.
Which the Ordinary having reported to the Lords, it was recommended to the keeper and writers to the signet to give their opinion, What the practice was in such cases?
And they having reported, that they knew of very few instances of such adjudications before inferior courts, and that they never observed a horning passed thereupon; but that the society were of opinion, they are sufficiently warranted to present bills, and expede letters of horning upon such adjudications, though there be no abbreviate, provided such decree contain precepts, directing horning against superiors. Notwithstanding of this report, the Lords, after having fully reasoned the case among themselves, “refused the bill of horning.”
It was observed to be a matter of more consequence how the Lords should determine this case, than at first sight might occur; for, as there are no abbreviates of adjudications cognitionis causa by Sheriffs, should horning go against superiors upon such adjudications, whereby they may become the first effectual adjudication, it would be a great defect in our records.
And whereas a remedy had been proposed for this on first moving the petition, by an act of sederunt, requiring abbreviates on such adjudications, and appointing them to be recorded; it was doubted if the Lords had power to appoint such record. In the case of resignations within burgh, it required an act of Parliament to appoint their being recorded.
But whatever be in this, so far was agreed, that the Lords might refuse horning, except upon such conditions as they should require by act of sederunt; one of which may be, that there be an abbreviate recorded.
But now as to the question itself, How far the Lords are obliged by law to give warrant for horning in this case? It was observed, that while apprisings were in use, the superior was by statute bound to receive the appriser, as now the adjudger; but then he could not be charged so to do upon the apprising, as being only pronounced by messengers as Sheriffs in that part; but such charge proceeded upon the allowance, which was in effect a decree of interposition by the Court of Session, and wherein there was an express decerniture against the superior.
But where adjudications cognitionis causa proceeded before the Session, the custom originally was, after such decree of adjudication cognitionis causa, to raise a new process against the superior, and upon the decree following thereon, the charge against the superior proceeded. But this process the Lords came to dispense with as unnecessary; and, in the very decree of adjudication, to decern against the superior. From the example whereof, it seems to be, that Sheriffs have in their decrees also fallen into the use of decerning against the superiors, which was agreed to be beyond their power.
For as to the act of Parl. 1606, cap. 10. which requires the Lords to direct letters of horning on the decrees of Sheriffs, it was plain, that only respected decrees for payment or performance against parties regularly called before them. Whereas, in this case, the decree against the superior is a decree against a blank person, and who may even not have been resident within the Sheriff's jurisdiction at the time.
The Lords therefore found as above, as there was no law whatever authorizing such horning.
Kilkerran, (Adjudication and Apprising.) No 13. p. 9.
