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Scottish Court of Session Decisions >>
Alexander Barns v Applegirth. [1662] Mor 5736 (1 January 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor1405736-013.html
Horning, upon a decree of the English Judges, was sustained, as their sentences were allowed to be challenged, on the matter, not the form.
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Alexander Barns having, (conform to the act made by the Judges,) obtained letters of horning summarily at his instance, as heir to his brother James Barns, upon production of his retour and a bond granted by Johnston of Applegirth; and thereupon having denounced him, and apprised his lands; Applegirth suspends on this reason, because the foresaid act of the Judges was now void; and by the late act of Parliament confirming their judicial proceedings, liberty is granted to quarrel and reduce them upon iniquity; and this was iniquity, to charge him summarily contrary to law.—The charger answered, non relevat, because he followed the order in use at that time; and the liberty of quarrelling is for injustice in the matter, and not in the order of proceeding; for then all their debates would be null, because they proceeded not upon continuation and letters.
The Lords sustained the charge as a libel, to the effect the suspender might have his defences, (if he had any) to be proved not instantly, but upon terms; but declared the apprising should stand valid for whatsoever was found due, but prejudice to the horning, as accords.
