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Scottish Court of Session Decisions >>
Mushet of Calzihall v Lord Marr. [1687] Mor 6962 (22 February 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Mor1706962-033.html Cite as:
[1687] Mor 6962
If a party is within the kingdom, but absconds, inhibition may be executed against him at the market cross
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In a reduction of a disposition ex capite inhibitionis, it was alleged for the defender, That the inhibition was null, in so far as it was not executed against my Lord Cardross, the party, personally, or at his dwelling-house, but at the market-cross of Edinburgh, pier and shore of Leith, and at the head-burgh of the shire, against the lieges, as if the party had been out of the country, whereas he was within the kingdom. 2do, The inhibition proceeded upon a conditional debt, before the condition was purified. 3tio, Bonds containing obligements to infeft in annualrents out of the debtor's lands in general, anterior to the inhibition, were the ground of the disposition.
Answered, The execution at the market-cross of Edinburgh, &c. was as sufficient a notification as if it had been executed personally, or at the debtor's dwelling-house; and if the debtor was then in the kingdom, he was absconding, and lying darned, and was reputed to be out of the country. 2do, Inhibition may proceed upon conditional obligements, or ante terminum, to take effect after purifying of the condition, or elapsing of the term. 3tio, The inhibition must impede any disposition of property; the obligement in the bond being to infeft in annualrent.
The Lords repelled the second allegeance in respect of the answer thereto; and, before answer to the first allegeance, ordained trial to be taken if my Lord Cardross was in Scotland the time of executing the inhibition, and if his being within the kingdom was publickly known; and, before answer to the third, ordained the bonds and infeftments to be produced.
