Effect of Mora in the conduct of the Creditor Reducer.
James Gordon of Davach, v. William Duff of Dipple
1707. Case No. No 163.
Reduction upon the act 1621 refused, of a disposition made in prejudice of anterior diligence by horning, used at Edinburgh, not at the head burgh of the shire where the debtor lived, no other diligence to affect either the debtor's heritage or moveables having been done for several years after.
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In the reduction upon the act of Parliament 1621, anent bankrupts, at the instance of James Gordon, against William Duff, for reducing a disposition granted to the defender by Andrew Geddes of Asile, the pursuer's debtor, after he had been charged with horning, denounced and registered by the pursuer:
Answered for the defender:—The act of Parliament 1621, relates only to dispositions granted to one creditor in prejudice of the more timely diligence used by another. Whereas Dipple, at the granting of the disposition made to him, paid a full and adequate price for the same, and got only allowance therein of a small debt that was secured, and preferable by the first infeftment affecting the subject disponed. 2do, Albeit the defender had got the disposition quarrelled in satisfaction of bygone debt, the pursuer could not impugn the same upon the act 1621; seeing he did not complete his horning by denouncing the debtor at the market-cross of the shire where he lived, to make his single escheat fall, and affect the price in the defender's hands; or, by using any other diligence of adjudication, inhibition. &c. to affect either moveables of heritage for several years: But had only denounced at the market-cross of Edinburgh, in order to caption.
Replied for the pursuer:—The Lords have cleared by the constant course of their decisions, (which is optima legum interpres) That a charge of horning is all that is requisite by the act 1621, to hinder a debtor to gratify any creditor in prejudice thereof, Veitch contra Ker's Executors, No 159. p. 1073.; Murray of Keillor contra Drummond of Machiny, No 139. p. 1048. And seeing the very using of horning (which is reckoned a step of diligence equal to the serving of inhibition against the bankrupt) was sufficient to tie him up from preferring one creditor to another: The denouncing and registrating ex abundanti, cannot reader the diligence less effectual, ne utile per inutile vitietur.
Duplied for the defender:—The cited decisions are alien from the point. For in that betwixt Veitch and Executors of Ker, the Lords reduced ah assignation of a moveable sum falling under escheat, at the instance of the donatar, upon whose horning the escheat fell as being granted in payment of a posterior debt, for which no diligence had been done: And, in the other of Murray and Drummond, it was found that an heritor could not grant a second minute of sale of his lands, in prejudice of a former entered, into with another party, which was just, though there had been no diligence used on the first minute; the granter of double rights being guilty of stellionate. But the defender ought to be assoilzied conform to what was decided, February 8, 1681, Neilson contra Ross, No 134. p. 1045. which, in terminis, comes up to the case in hand.
The Lords found, That Davach, the pursuer, is not in the case of the act of Parliament 1621, his denunciation not being duly executed at the cross of the head burgh of the shire where the debtor lived, and he not having proceeded in diligence after the horning: And therefore assoilzied, the defender from the reason of reduction founded on the said act.
