What Diligence sufficient to found Reduction upon the act 1621.
Duff of Kilmuir v. the Representatives of Bell
Date: 22 July 1742 Case No. No 151.
Found in conformity with No 142. p. 1051.
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A creditor having, in 1732, charged his debtor with horning, and denounced him at the cross of Edinburgh, and thereupon taken out caption, and, in about three months thereafter, the debtor having assigned a debt to his brother in security of a debt formerly due to him; in the year 1740, the creditor coming to the knowledge of the assignation, arrested in the hands of the debtor in the debt assigned, and having pursued a reduction of the assignation upon the second alternative of the act of Parliament 1621, the Lords found, ‘That the denunciation not having been executed at the market-cross of the head burgh of the shire, where the debtor lived, but only at the market-cross of Edinburgh, and that no further diligence after horning had been used for so long a time, the case did not fall under the second clause in the act of Parliament.’
Such diligence only is sufficient to reduce a posterior gratuitous deed, as may, when followed out sine mora, affect the subject; and such a simple horning, as being followed out sine mora, to a denunciation at the market-cross of the head burgh of the shire where the debtor lives, would make escheat fall, is a compleat diligence affecting the subject in question; but, as escheat does not fall by a denunciation at the market-cross of Edinburgh, the subject cannot be affected by it; and it has therefore no more effect than the horning itself would have had without it, which, by a mora in following it out by denunciation at the market-cross of the head burgh, loses its effect; and mora has been inferred from a delay of fewer months, than there had intervened of years in this case.
