What Diligence sufficient to found Reduction upon the act 1621.
Mr Hugh Dalrymple Advocate, v. Janet Lyell
Date: 25 November 1687 Case No. No 144.
An inhibition, if duly executed, found sufficient diligence to prevent preferences, even out of moveables.
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The suspension of a charge in the year 1649, at the instance of one Lyell, against Sir William Dick, not being discussed by reason of the war, and interruption of justice, till the year 1662, and then the charger having proceeded, without denouncing, to apprise in the year 1653, and to raise inhibition which was executed and registrated in the 1654; Sir William assigned a moveable bond to one Mowat; of the which assignation Lyell raised reduction, as being a gratification after his diligence.
Alleged for the defender: That the charge on which denunciation and registration did not follow, was not a sufficient diligence to hinder the assignation; and the inhibition cannot be regarded, seeing it affects not moveables; and besides, it is null; for that the execution bears not, that a copy was left at the cross. 2do, It is not sufficient that diligence was inchoate, seeing the creditor was in mora to consummate the same.
Answered: When a person raises horning, in order to apprise for his debt, he needs not proceed to denunciation, which is designed to make the debtor's escheat; and apprising followed in this case, as soon as the trouble of the times would allow. 2do, Where a debtor is bankrupt, any diligence is sufficient to hinder him to make a voluntary preference among his creditors; and there was no negligence in the pursuer to prosecute his diligence, by reason of the war and surcease of justice.
The Lords sustained the apprising as a sufficient prior diligence; found a formal inhibition a due diligence to hinder gratification out of moveables; But found, That this inhibition being null for not being duly execute, was not sufficient to afford the benefit of the act of Parliament. See Inhibition.
Fol. Dic. v. 1. p. 77. Harcarse, (Alienation.) No 151. p. 32.
