An inhibition of a very old date reduced, having been executed on a Sunday.
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Forbes pursues a reduction of the Earl's right and disposition to some lands he derived from Thomas Reynold. Alleged, you, Robslaw, are only a personal creditor to Reynold, and so cannot reduce or call for my rights on the said Reynold's estate, which are completed by infeftment, except you had adjudged or affected the subject. Improbation of real rights has been sustained at personal creditors' instance, but not reduction. Answered, The act of Parliament 1621 introducing these reductions, actione Paulliana, of deeds done to their prejudice, requires no more but that they be a true anterior creditor, but not that they have a real right on the subject; for it were hard to put creditors to adjuge before they try the strength of their right, whether it can remove impediments, yea or not; for if I succumb in that, then I have all that expense in my pocket; and if I prevail, then I will adjudge and make a right to the subject, whereby I may compete with you for the mails and duties, and till then you keep the possession, because yet I have no positive right to the lands. The Lords found he, as a personal creditor, had a sufficient title to reduce on the act of Parliament 1621, against alienations made in defraud of prior creditors, though sundry doubted much of this.
Then Robslaw repeated his reason, founded on an inhibition before the Earl's right. Answered, I have raised reduction of that inhibition as illegally and unwarrantably executed, bearing date the 16th of August, 1668, which, by the calendars and almanacks produced, was on a Sunday. The Lords found this nullity both relevant and proved, and therefore reduced the inhibition. This agrees with the Roman law, L. 3. 7. et 11. C. De feriis.
Fol. Dic. v. 2. p. 406. Fountainhall, v. 2. p. 139.
A Meditatione Fugæ Warrant may be executed on a Sunday; see Kemp against his Creditors, No. 10. p. 8554. voce Meditatione Fugæ.
