Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Daniel Nicolson
v.
Provost Kinloch

1686. February.

Click here to view a pdf copy of this documet : PDF Copy

A disposition of lands, made by Provost Currie, being questioned upon the second part of the Act 1621, as a gratification, in prejudice of the pursuer's diligence by inhibition;—it was alleged for the defender, That the inhibition was null as to the lands disponed, not being executed at the right cross of regality; and a null inhibition is no diligence. Answered, The debtor being in effect bankrupt, any diligence, by the Act of Parliament, is sufficient to hinder gratification; nor was the inhibition null for want of any requisite solemnity; and, if the debtor had acquired any lands in the shire thereafter, the inhibition would have the effect of a formal diligence as to these, to hinder alienations by commerce, and so ought to obstruct gratification quoad others lying in the regality; yea, inhibition, even personally executed, and at the market-cross where the inhibited party dwells, will hinder the alienation of heritable sums; so that the pursuer's inhibition is a formal and habile diligence, as to some effects: The like holds as to the contracting of debt after inhibition, in so far as the inhibiter is thereby prejudged. The Lords assoilyied from the reduction; but the matter of fact was not fully understood, whether it was commerce or gratification. Vide No. 151, [Dalrymple against Lyell, 1687, November 25;] and, No. 296, [Dempster against Morison, 1683, November.]

Page 30, No. 142.