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Scottish Court of Session Decisions >>
The Creditors of Kinminnity v Innes. [1748] Mor 6982 (2 December 1748)
URL: http://www.bailii.org/scot/cases/ScotCS/1748/Mor1706982-050.html Cite as:
[1748] Mor 6982
Though an inhibition should be registered in the books of a shire, where part of the debtor's lands lie, within forty days after it had been published in that shire, yet if it be not also registered within forty days from the publication, in the shire of the debtor's domicil, it can have no effect as to these particular lands.
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In the ranking of the Creditors of Kinminnity, two objections were made by the other creditors to an inhibition on the debt due to Anna Innes, 1mo, That the inhibition, which was executed personally at Edinburgh, had not been also executed at the market cross of Edinburgh, where the debtor resided at the time, but only at the market cross of Banff, where he had his ordinary domicil. 2do, That the inhibition was null as to the debtor's lands in the shires of Sutherland and Moray, in respect it had not been registrated in the particular registers of the said shires, nor in the general register, within 40 days after execution against the party, and publication to the lieges at the market cross of the head burgh of the shire where his dwelling house lay.
The first of these objections the Lords 'repelled; and sustained the second.'
As to the 1st, There was nothing in the objection; as the law which requires publication to the lieges at the market cross of the head burgh of the shire where the party dwells, is rather more effectually complied with by publication at the market cross of the head burgh of the shire where he has his ordinary domicil, than when made at the market cross of the head burgh where he happens to have an occasional residence; in so much, that it was not thought clear that such publication would not have been liable to objection.
And as to the 2d, The fact was, that, after elapsing of 40 days from the publication at the market cross of Banff, the shire of the party's residence, it had been of new executed at the market crosses of Sutherland and Moray, and within 40 days thereof registrated in the public register; but that was found not to be sufficient, in respect of the express directions of the act 119th, Parl. 1581, which requires no publication at any other cross than that of the head burgh of the shire where the party dwells, and registration within 40 days thereof; and enacts, that where he has lands in another shire the inhibition be registrated within the same 40 days, in the books of the said shire.
Fol. Dic. v. 3. p. 325. Kilkerran, (Inhibition.) No 10. p. 289.
