Scottish Court of Session Decisions

Subject_1 COMPETENT.
Subject_2 SECT. V.

Whether Reduction be requisite of Decrees Arbitral; - Of Legal Instruments; - Of Inhibitions; - Of a Deed executed by a Woman vestita viro; - Of a Decree of Preference in a Multiplepoinding.

Stirling
v.
Panter and Ogilvie

Date: 25 July 1628
Case No. No 23.

An inhibition being executed against a person living within a regality, not at the head burgh thereof, nor registered there, but at the head burgh of the shire, the Lords refused to receive the allegeance by way of exception; but reduction prout de jure was reserved to the party.

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In a reduction betwixt Stirling and Panter and Ogilvie, for reducing of an infeftment, in respect of a preceding inhibition; the defender alleging the inhibition to be null, because the dwelling-place of the party prohibited to annailzie, whereat the inhibition was execute, was within a regality, where, conform to the 268th act 15 Pari. Ja. VI. the same should be execute at the head burgh of the regality; likeas, the same should be registrate in the registers of that regality, and this inhibition is neither execute, nor registrate there, but only at the market-cross of the bead burgh of the sheriffdom, and registrate in the Sheriff-clerk's books; this allegeance was repelled, and the nullity foresaid was found, ought not to be received, by way of exception, but was reserved to the party, to be pursued by way of ordinary action of redaction, prout de jure. And thereafter, the defender alleging improbation of the inhibition, which being found relevant, the pursuer alleged, that seeing improbation was the last exception, which excluded the proponing of any other defence, therefore he alleged, that the defender could not thereafter be heard, to return to pursue any action of nullity against the writ. The Lords found, That notwithstanding the improbation, he might thereafter pursue the nullity, seeing the same nullity being in this same process proponed by way of exception, and found not to be admissable in this place by way of exception, but reserved by way of action, the party ought not to be prejudged, to insist thereon in an ordinary pursuit; albeit the pursuer contended, that the said improbation should either also be reserved by way of action, and not proponed in this place; or else, if the defender would propone the same here by way of exception, that thereby he did prejudge himself, and could not thereafter return to pursue upon the nullity thereof; which was repelled. This decision was stopped, and the cause ordained to be heard over again, and the same being reasoned, July ult. 1628, the nullity foresaid was received by way of exception, and admitted to the excipient's probation.

The like done in a declarator, Mr Alexander Burnet contra Lady Bonitoun, of her liferent escheat, March 10. 1637, where she first proponing a nullity againg the horning, viz. that she dwelt within another sheriffdom, than at the head burgh, whereof by the horning she was denounced, which was repelled hoc loco, and reserved to her to reduce thereupon; and, she thereafter proponing improbation, the Lords found this allegeance of improbation should not prejudge her, to pursue reduction, upon the ground of nullity, which was proponed by her, and was found not admissable, in this place, by way of exception against his pursuit. See Process—Execution.

Act. Advocatus Hope & Nicolson. Alt. Stuart. Clerk, Gibson. Fol. Dic. v. 1. p. 172. Durie, p. 393.