What Diligence sufficient to found Reduction upon the act 1621.
Bailie Gartshore v. Sir James Cockburn
Date: 16 March 1686 Case No. No 143.
An inhibition not yet registered, but in cursu, sufficient to found reduction on the act 1621.
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A creditor having executed an inhibition against Sir Walter Seaton his debtor, personally, upon the first of February, and published it at the market-cross of Linlithgow upon the 4th, registrate the same upon the 6th day: The debtor, upon the 2d of the said month of February, subscribed a minute of sale of his lands to another creditor, which was quarrelled both as a gratification of one creditor after inhibition at the instance of another, contrary to the act of Parliament 1621, and anticipation of the inhibiter's diligence when he was in cursu.
Answered: The inhibition was not registrate till four days after the minute; and diligence is only to be considered after it is public by registration.
The Lords reduced the minute as a gratification to a creditor, and unlawful anticipation of another's diligence. See Litigious.
Fol. Dic. v. 1. p. 78. Harcarse, (Inhibition.) No 639. p. 176.*** Fountainhall remarks the same case:
Alexander Gartshore of that ilk, and———Crawford his daughter-in-law, pursue reduction of a disposition made by Sir Walter Seaton to Sir James Cockburn ex capite inhibitionis.—Alleged, The disposition is prior to the publication at the market-cross.—Answered, It was enough if it is posterior to the executing it against the party.——This being reported by Harcarse, the Lords find the pursuer was in cursu diligentiæ by raising and executing his inhibition against the debtor, albeit before the excution thereof against the leiges at the maket-cross, he was prevented by the defender's disposition; and therefore they reduced the same as fraudulent, and intervening after the inhibition is begun, of purpose to evacuate it.
