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Somervel, Donatar to the L. Edmiston's Escheat, v - . [1626] Mor 3766 (22 March 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor0903766-114.html Cite as:
[1626] Mor 3766
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. V.
Three blasts of the Horn.
Somervel, Donatar to the L Edmiston's Escheat, v. -
Date: 22 March 1626 Case No. No 114.
Found as above.
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In a declarator pursued of the L. of Edmiston's escheat, at the instance of Lewis Somervel, servitor to the Lo. Erskine, it being alleged, that the horning was null, because the denunciation bore not, that three blasts of the horn were used; and the pursuer replied, that the execution bore, that he duly and lawfully denounced; the words, duly and lawfully, must be understood to comprehend all solemnities requisite, specially where there is no law requiring, that the execution should bear that clause, or that it is necessary to be done.——The Lords repelled the allegeance, and sustained the horning, but found it necessary, that the pursuer should prove that three blasts were given by the officer at his denouncing of the defender, which being proven to have been truly and actually done, albeit it was not so exprest in the written execution, the Lords found it sufficient, and that the want of these words was no ground of nullity; and this was ordained to be proven, because the witnesses, and the messenger, executor of the denunciation, were on life presently; but if the witnesses were dead, in any of the like cases, when it occurred, the Lords inclined to sustain the horning without necessity of such probation, the execution bearing, that the officer lawfully denounced, seeing there was no law requiring that solemnity specially to be recorded in the execution.
Act. Hope.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 266. Durie, p. 195.*** Kerse reports the same case:
Found the horning wanting three blasts is not absolute———,where the witnesses are living, the Lords will have the party prove that three blasts were used; but, where they are dead, they will sustain the horning, except it be improven.
Kerse, MS. fol. 220.*** Spottiswood reports the same case:
Lewis Somervel pursuing a declarator of the Laird of Edmiston's escheat, upon a horning execute at his instance, the same want of three touts was alleged against the horning, but the Lords, as before, No 113. p. 3765. sustained it to be proven by witnesses.
