What Diligence sufficient to found Reduction upon the act 1621.
Alexander Elphingston v. Henderson and the Laird of Dalmahoy
Date: 13 January 1697 Case No. No 148.
A disposition reduced, because of an inchoate inhibition (in particular circumstances,) but the disponer was bankrupt at the time.
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Philiphaugh reported Alexander Elphingston against Henderson and the Laird of Dalmahoy, for reducing a disposition of a brewery made by Hary Leggat, after he was inhibit at his instance. Alleged, 1mo, The inhibition was not registrate, which only puts the lieges in mala fide. 2do, It was, by virtue of a factory, and a letter from Harry, prior to the inhibition, and so depended on an anterior cause. 3tio, It was doneauctore prætore, the lands being rouped by order of the Lords. Replied, The publication and executing the inhibition is the rule, and after that my debtor may do nothing to my prejudice: 2do, The factory and letter contained only a power to sell; so the actual alienation was subsequent to the inhibition; and, as to the third, the warrant of the Lords was periculo petentis, and the pursuer not called, and so res inter alios acta as to him, and not done in the terms prescribed by the act of Parliament 1681, anent such sales. The Lords reduced the disposition, especially considering that Leggat was bankrupt the time of granting thereof.
Fol. Dic. v. 1. p. 77. Fountainhall, v. 1. p. 753.
