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Adam v Baillies of Ayr. [1626] Mor 3748 (14 July 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor0903748-087.html Cite as:
[1626] Mor 3748
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. II.
Designation of the Dwelling-place.
Adam v. Baillies of Ayr
Date: 14 July 1626 Case No. No 87.
The execution of a horning, bearing to be against the party, burgess o. Ayr, at his dwell-house, but not adding the word ‘there,’ was found null, and the debtor being incarcerated, the magistrates of the burgh were assoilzied from an action at the creditor's instance for suffering him to escape.
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One Adam pursues the Baillies of Ayr, for payment of the debt, for the which his debtor, being rebel, was incarcerated, and thereafter they suffered him to go to liberty. The Baillies compearing, alleged, The horning whereupon caption was executed, was null; because the charge given to the party, whereupon he was denounced, was not lawful, seeing the same bore to be executed at his dwelling place, and made no special mention nor designation of his dwelling where he was charged, which allegeance was found relevant, and so that the horning was null, and therefore the Baillies were assoilzied simpliciter from the pursuit; albeit the pursuer replied, That the horning could not be found null for that alleged defect, seeing it was executed against a burgess of Ayr, whose dwelling must be presumed to be in Ayr; and also, that the execution bears, that a copy was delivered to his wife, being then personally present; likeas, it was further replied, That the Baillies cannot excuse themselves by that alleged nullity, to put the said rebel to liberty, whom they had apprehended by virtue of letters of caption, and had once incarcerated, after whose incarceration, they could not at their own hands, without a warrant of some sovereign judge, enlarge him thereafter. Which reply was not respected, for the horning was found null for the reason foresaid, and so they had no necessity to have taken him, who was not lawfully at the horn; and, being taken, they had no necessity to retain him in ward.
Act. Miller.Alt. Belshes.
Fol. Dic. v. 1. p. 264. Durie, p. 217.*** Spottiswood reports the same case:
The Baillies of Ayr being convened by Adam N. for letting Robert Dalrymple (whom by virtue of letters of caption they had first apprehended at that N. his instance) free again, they objected nullity against the horning, because the officer in his executions said only that he had charged Robert Dalrymple, burgess of Ayr, at his dwelling-place [without further, not saying, there, or designing his dwelling particularly] and likewise had given his wife a copy. The horning was annulled for lack of that one word or circumstance, for things that are odious should not be extended.
