A horning, not executed at the headburgh of the shire where the party dweir, on which no diligence was done to affect the debtor's lands, found not to give the creditor the benefit of act of Parl. 1621, cap. 18.
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Gordon of Daach insists in a reduction of a disposition of certain lands granted by his debtor to Duff of Dipple, in prejudice of his more timely diligence against the said debtor by horning and denunciation, whereby he had the benefit of the last clause of the act of Parl. 1621, cap. 18. which provides, “That if dyvours, or their interposed trustees, shall make any voluntary payment or right to any person, in defraud of the lawful and more timely diligence of another creditor, having served inhibition, or used horning, or other lawful mean, duly to affect the dyvour's lands or goods, or price thereof, to his behoof; in that case, the creditor having used the first lawful diligence shall be preferred.”
The defender alleged; That he was a fair purchaser for an adequate price, which he had truly paid, and applied for purging of real diligences, or to true onerous creditors without fraud; and was not bound to notice the pursuer's diligence of horning and denunciation, because the said denunciation was only used at the market-cross of Edinburgh, where the party did not reside, and so could have no effect as to escheat, single or liferent; and consequently the same was not a lawful diligence duly to affect his debtor's lands purchased by the defenders; neither had the pursuer prosecuted his diligence by adjudging, or otherwise affecting the debtor's estate; and, though the Lords do often favour the diligence of creditors, so as to annul all voluntary deeds to their prejudice after the first step of diligence by horning, yet that is when they are careful to proceed to consummate their diligence without delay; but inchoate diligence not prosecuted, is not comprehended in the words, nor meaning, nor design of the act.
“The Lords found the pursuer's horning not being executed at the headburgh of the shire where the party dwelt; nor any other diligence done for affecting his debtor's lands disponed, that he had not the benefit of the act of Parl. 1621.”
