Horning competent on the extracted decrees of the Magistrates of Burghs of Barony, if they have been made independent of their superior, prior to the jurisdiction act.
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Thomas Oliver, merchant in Hawick, having refused payment of his accepted bill to John Graham, brewer there, a protest (2d Jan, 1805) was taken, and recorded in the Bailie-court books of Hawick. An extract of this protest, having a decree interponed by the Magistrates of that Burgh, together with their precept subjoined in common from, having been presented to the Clerk of the Bills, for letters of horning, a doubt occurred, how far such was competent.
The point was reported by the Lord Ordinary on the Bills.
Hawick is a Burgh of Barony, independent of the superior. Its privileges are enjoyed, in consequence of a charter of erection, by James Douglas of Drumlanrig, dated 11th October 1537, proceeding on the narrative, that the old charters and evidents had been lost and destroyed by the inroads of the English and thieves, in the bypast times of enmity and war, by which it appeared, that his village of Hawick, lying within his Barony of Hawick, had been of old erected into a free Burgh of Barony.
It was not pretended, that there was any usage in favour of the claim of Graham; but it had been once at least recognized by the Court in the case of this Burgh; Pears and James against Douglas, 2d July 1790, (not reported) as well as in the case of the Burgh of Paisley, 30th November 1790, No. 389. p. 7687.
The Court had no difficulty in authorising the Lord Ordinary to grant the horning, as craved.
Lord Ordinary, Justice-Clerk.For Petitioner, Walter Scott.Agents, Riddell & Gillon.
Fac. Coll. No. 200. p. 447.
