Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 28 June 1688
Mary Kirkpatrick and James Home v. Sir Robert Grierson of Lagg
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The case of Mary Kirkpatrick and Mr James Home, minister at Kirkmahoe, her husband, against Sir Robert Grierson of Lagg, was debated and advised. John Kirkpatrick being debtor to the said Mary, his sister, in a bond of 2000 merks; and having an infeftment for 7000 merks in Jarden of Apple-girth's estate, he dispones it to Lagg, on his back-bond, that he had received the said disposition for 2000 merks of debt, which John was owing him, and for security of what farther sums he should pay out for him. Mary inhibits John, her brother, on her bond; after which, Lagg takes a discharge from John of his back-bond, and transacts and acquires a right to sundry others of his debts; and Mary having adjudged her brother's right to the 7000 merks, and pursuing for mails and duties, Lagg competed for preference on his absolute disposition,—his back-bond being discharged, or at least for all the debts he had paid of John Kirkpatrick's. Alleged,—He was in mala fide; for John was inhibited by her before the discharge of the back-bond; and, by the Act of Parliament 1621, as John, the debtor, could not prefer other creditors to her who had done diligence by inhibition, so neither could Lagg his trustee and cousin do it. Vide l. 7 D. Quæ in fraud, creditor; and Sir George M'Kenzie's observations on that Act; Stair, 8th January 1669, Newman; 24th July 1669, Fleeming; and supra, 23d November 1687, Lord Ballenden.
Answered,—The inhibition not being intimated to Lagg, (as the Act of Sederunt, 19th Feb. 1680, requires,) he could not be in mala fide to take a discharge of his own back-bond, or to transact with John's creditors; and the inhibition is null, being executed at the wrong market-cross.
Replied,—He should have searched the Registers; and, esto the inhibition were wrong executed, yet it has the effect of a diligence to affect the right, on the Act of Parliament 1621, though it would not reduce posterior rights.
The Lords found the said Mary preferable upon her diligence to Lagg, except in so far as concerned his 2000 merks, and any debts he was cautioner in, or had transacted, before the inhibition. Lagg gave in a bill against this.
