Legal Diligence Executed at a Wrong Place. - Head Court Held at a Wrong Place.
Hay of Strowie, v. Creditors of David Simpson
Date: 20 February 1733 Case No. No 18.
The objection that an inhibition was not executed at the head burgh of regality, was sustained, in a competition of creditors, notwithstanding of communis error, of executing diligences at another place.
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In a competition, it was objected against an inhibition led against an inhabitant of the town of Kirkaldy, that it was executed against the lieges at Coupar, the head burgh of the shire, whereas it ought to have been executed at Dunfermline, the head burgh of the regality where Kirkaldy lies. It was answered, That communis error facit jus, and it was commonly understood, that the town of Kirkaldy was not within the regality of Dunfermline; for a proof of which, a condescendence was given in from the 1644, downwards, by which it appeared, that most of the diligences against the inhabitants of Kirkaldy were executed at the head burgh of the shire, many of them at both the head burghs of the shire and regality, and half-a-dozen of them at the head burgh of the regality only. On the other hand, it appeared, that a great number of the processes had been carried on against the inhabitants of Kirkaldy at the regality courts; and it was pleaded against the inhibiter, whatever might be the case, were the question only with the debtor, yet in a competition of creditors, every objection ought to have its full weight. The Lords sustained the objection against the inhibition, that it was not executed at the head burgh of the regality. See Appendix.
