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Prior of St Bathans v Carmichael. [1626] Mor 3102 (16 June 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor0803102-015.html Cite as:
[1626] Mor 3102
Legal Diligence Executed at a Wrong Place. - Head Court Held at a Wrong Place.
Prior of St Bathans v. Carmichael
Date: 16 June 1626 Case No. No 15.
In a shire, where there is a certain place appointed by act of Parliament for denunciations upon hornings, a party not having denounced there, but at another place where denunciations were frequently made since that act, the horning was sustained notwithstanding of the act, in respect of the posterior custom.
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A declarator of escheat being sought at the instance of the Prior of St Bathans against Carmichael; the horning was quarrelled by the defender, because the party was not denounced rebel at the cross of Greenlaw, which was appointed to be the place whereat all hornings should be executed against persons, indwellers within the sheriffdom of Berwick, conform to the act of Parliament 1600, whereby the same is statute; and which act declares all hornings otherwise executed at any other place or market cross to be null; and this horning controverted, was executed at Dunse, and not at Greenlaw, conform to that act, and therefore was alleged to be null. This allegeance was repelled; and the horning, executed at Dunse, and not at Greenlaw, was sustained, notwithstanding of the said act of Parliament, in respect of the frequent use observed since the said act, in executing of hornings and denouncing rebels, since that act of Parliament, at the cross of Dunse; which contrary consuetude against the said act, the Lords found relevant, and admitted the same to the pursuer's probation, to sustain the said horning, and found the same should be proven by hornings executed since the act; likeas there was a practique produced before the Lords, betwixt Mellerstanes and Hume of Eccles, in anno 1606, where the like was so decided before.
Act. Belshes.Alt. Boid.Clerk, Gibson.
Fol. Dic. v. 1. p. 202. Durie, p. 202.
