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Scottish Court of Session Decisions >>
John Hamilton v Colonel Borthwick. [1687] Mor 15159 (00 November 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Mor3415159-042.html Cite as:
[1687] Mor 15159
When the state of the case is altered during the suspension, the letters ought not to be found orderly proceeded, but the decerniture ought to run in the terms of a new decree.
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In the reduction of a horning upon these reasons; 1st, That the executions as registrated did not bear that they were stamped; 2d, The Lords having found in a suspension of the charge, that the charger, whose title was an assignation not intimated before the cedent's death, ought to confirm before extracting, which is in effect a turning the decreet of registration into a libel, the debtor ought to have charged de novo upon the decreet of suspension, whereas he was denounced upon the old charge;
Answered: The registration of horning is principally designed for discovering the casualties of escheat due to superiors, and not like that of inhibition for publication to the lieges; and the principal executions appear to be stamped. 2d, Custom requires no new charge upon a decreet of suspension.
Replied: All writs ought to be registrated as they are conceived; and though the stamp itself be the subject only of sense, the words, “And I have affixed my stamp,” ought to have been registrated as a principal part of the execution. 2d, Though when a reason of suspension tends only to take off the charge in part, as when a partial discharge is produced, it is reasonable that the old charge go to execution pro reliquo; yet it is otherwise, when a reason of suspension enervates the charge in toto; and the charger's assignation not intimated in the cedent's lifetime, was not a sufficient title without confirmation, which made in effect a new title.
The Lords gave no answer to the first reason of reduction, but found the horning null upon the second reason, which was repeated by way of exception in a new suspension, and the King and Officers of State not called; and they thought, that to find the letters and charge orderly proceeded, was not the proper decerniture in the suspension, but that it ought to have run in the terms of a new decreet.
