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Scottish Court of Session Decisions >>
Montgomery v L. Fergushill. [1632] Mor 3749 (9 November 1632)
URL: http://www.bailii.org/scot/cases/ScotCS/1632/Mor0903749-088.html Cite as:
[1632] Mor 3749
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. II.
Designation of the Dwelling-place.
Montgomery v. L Fergushill.
Date: 9 November 1632 Case No. No 88.
An execution of a horning, designing the debtor ‘ of A, and bearing the charge to be left at his dwelling-house there, was sustained.
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A general declarator of the escheat and liferent of ———, being pursued by Montgomery, the rebel's creditor, and which he declared he took and used only to recover payment of his own debt; Fargushill defender being also donatar and creditor of the same rebel, alleging, That the pursuer's horning produced, whereupon the gift of escheat was given, was null, because the debtor was not charged, neither personally, nor at his dwelling-house thereby, in so far as the execution bore, that the messenger charged the said debtor, whom he designed by the style of his roum of ———, at his dwelling-place there, and the execution designed no dwelling-place particularly, whereat he charged him, as it ought. This allegeance was repelled, and the horning sustained, for the execution was holden, as if it had borne to be done at the party's dwelling-place, whereof he was styled by the said execution, and the pursuer abode at the horning, as executed at that dwelling-place. Thereafter the defender alleging, That he offered to prove, that the rebel dwelt in another place the said time of the charge, and the pursuer replying, That that exception being in facto, ought not to be received to annul his horning so summarily, by way of exception, but he ought to reduce thereon, and then he should answer thereto, the Lords received the same exception hoc loco, without necessity to urge the defender to reduce thereon, in respect of the execution foresaid, which, as said is, made no clear special expression of the place nominatim, whereat the party was charged. And thereafter, the pursuer replied, That he dwelt then at that same place whereat he was charged, which was sustained, and admitted to probation.
Act. Stuart & Gilmore.Alt. Cunninghame.Clerk, Gibson.
Fol. Dic. v. 1. p. 263. Durie, p. 651.
