Inchoate Diligence not carried on, whether it fall by lapse of year and day.
L Fairnie's Bairns v. L Aiton.
Date: 17 July 1627 Case No. No 153.
Inhibition was sustained, although the execution against the lieges was more than an year after the execution against the party.
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In a reduction at the instance of L. Fairnie, against the L. of Aitoun, for reduction of an infeftment super capite inhibitionis, this inhibition was quarrelled, because it was execute against the party prohibited at the market-cross of Cupar, being the head burgh of the sheriffdom; and these executions, albeit duly registrate, yet seeing the same was again, by a new execution, published at the market-cross of St Andrews, as the head burgh of the regality where the lieges were openly inhibited; betwixt the which publication, and the other execution at Cupar, there intervening the space of an year and more, at the which last publication no special execution nor prohibition was made to the party inhibited to annailzie; therefore the defender contended, that the inhibition could not be sustained, for he alleged, that the first prohibition, made specially to the party not to annailzie, being execute an year before this last publication made at St Andrews, to the lieges, not to buy nor block, could not be a warrant to make that last publication to subsist, except the party had been also at that same time, or about that time, de novo, prohibited to sell; and that the said inhibition, whereof the said executions had so great discontinuance of intervening time betwixt them, ought not to put the subjects in mala fide, to have in any time thereafter bargained with the party, sicklike as if he had never been inhibited at all. This allegeance was repelled, and the inhibition sustained, seeing the party was once lawfully prohibited, and there was no necessity that he should be prohibited over again at the time of the second publication against the lieges. This is to be marked.
Act. Nicolson.Alt. Aiton.Clerk, Gibson.
Fol. Dic. v. 1. p. 268. Durie, p. 310.
*** Summonses fall if not called within year and day; See Process.
