Scottish Court of Session Decisions

Subject_1 ANNUALRENT.
Subject_2 ANNUALRENT due ex mora.

Cochran of Bridgehouse,
v.
Representatives of Colonel Vanse

1743. July.
Case No. No 28.

Found in opposition to No 27. and in conformity with Nos 25. and 26. that denunciation at the market cross of Edinburgh, against a person not living within the jurisdiction, has not the effect in law to make a sum bear interest.

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The following question occurred in a process, Whether denunciation at the market-cross of Edinburgh is sufficient to make a sum bear interest, being sufficient for caption, though the debtor live not within the jurisdiction?—For the affirmative it was argued, that Edinburgh is communis patria, and therefore is the proper place for all notifications to the lieges in general; that denunciation upon a horning is a proclamation addressed to the lieges in general, “discharging to receipt, supply, maintain, or defend such a man, our sovereign Lord's rebel, being at the horn, &c.” and therefore the proper place of this denunciation is at the market-cross of Edinburgh: That it having been the Sheriff's province, before gifts of escheat were introduced, to gather in the moveables of rebels for the King's use, the practice crept in to denounce at the head-burgh of that shire where the rebel's moveables lay, as a more special notification to the Sheriff to do his duty; therefore, in order to escheat, a denunciation at the market-cross of the shire is necessary; but to all other purposes, inter-communing, caption, annualrent, &c. a denunciation at the market-cross of Edinburgh, addressed to the lieges in general, is the proper form.

For the negative, the act 20th, Parl. 1621, was set furth, ordaining, “That whensoever any person is denounced rebel, and put to the horn for not-payment of sums of money, the person so denounced shall be subject in payment of annualrent.” And that the denunciation here must be a regular denunciation at the market-cross of the shire, was endeavoured to be cleared by the following considerations: 1mo, By the common law of this land, the Sheriffs were the proper and only officers to execute the King's orders in matters of law, each within his own jurisdiction; and even acts of Parliament, which require the most general notification, were published in this manner, 1st statute Robert I. cap. 34. and act 67, Parl. 1425. Proclamation at the market-cross of Edinburgh, of acts of Parliament, as a sufficient publication instead of proclamation at the head burghs of shires, was introduced by the act 128, Parl. 1581, which of itself makes it evident, that all denunciations were originally at the head-burghs of shires. 2do, Edinburgh is communis patria or commune forum to parties out of the country, but not to those who live within it; each man being subject to the jurisdiction of his own Sheriff. 3tio, The stile of all letters of horning, as Stair mentions, book 4. tit. 47. § 8. was, “That the messenger pass to the market-cross of the head-burgh of the jurisdiction within which the party dwells, and there denounce him rebel;” which is sufficient evidence of what was the common -law of the land, though of late years this stile has been abridged, and no more commonly expressed than ‘to denounce the party rebel, and to put him to the horn.’

From these considerations it appearing, that denunciation at the market-cross of the shire is the regular denunciation, it was inferred, that this denunciation must be understood in the act 1621, and not denunciation at the market-cross of Edinburgh; an innovation which has probably been introduced by the Court of Session, in order to facilitate captions.

“Found, That a denunciation at the market-cross of Edinburgh against a person not living within the jurisdiction, has not the effect in law to make a sum bear interest.”

Fol. Dic. v. 3. p. 28. Rem. Dec. v. 2. No 43. p. 70. *** The same case is thus reported by C. Home:

Upon the 16th of December 1714, Joseph Vanse, merchant in Ayr, and Colonel Vanse, as cautioner, granted bond, conjunctly and severally, for 500 merks to Janet Crawfurd.

Upon the 9th of December 1721, the cautioner was charged with horning upon this bond, personally apprehended, and was denounced in April 1722, at market cross of Edinburgh.

The principal debtor in the bond having become insolvent, the pursuer, who had acquired a right thereto, brought a process on the passive titles against the Representatives of Colonel Vanse, the cautioner. And the defence pleaded was, That the cautionary obligement was at an end by lapse of the seven years. To obviate this, the pursuer produced the letters of horning, with the charge thereupon given, both within the seven years; and insisted, that, in virtue of the last clause of the statute, this diligence preserved entire whatever fell due within the seven years: From which it was pleaded, That there could be no dispute of the principal sum, after the above charge of horning; and as for annualrent, though the same could not be due by stipulation, the cautionary obligation being at an end by the lapse of seven years, it was nevertheless due in consequence of the denunciation which followed upon the said charge of horning.

Objected for the defenders, That the denunciation was at the market cross of Edinburgh, and not at the market cross of the shire where the cautioner dwelt; and therefore could not have the effect to make the sum bear annualrent.

Answered: That the denunciation at the market cross of Edinburgh is sufficient to all legal effects, except that of escheat singly; that, in particular, it is sufficient for a caption, which deprives a man of his natural liberty, and therefore to be considered as one of the greatest pains of law; multo magis ought it to be sufficient for making the sum bear annualrent, which is not so much as a penalty, being only given nomine damni for the creditor's wanting the use of his money.

The Lords found, That a denunciation at the market cross of Edinburgh, against a person not living at the time within that particular jurisdiction, has not the effect in law to make a sum bear annualrent.

C. Home, No 243. p. 394.