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Book II.

22. 1714, DICT. p. 6968)320*. An inhibition upon a depending ac-
tion can have no effect towards annulling deeds granted by the
debtor after that diligence, till the dependence be closed by a de-
cree in favour of the pursuer, sustaining the debt and declaring its
extent; because, until such decree be recovered, it is uncertain
whether the inhibiter be truly creditor to the party inhibited, or to
what amount †. If the claim depending should be transacted by
the voluntary agreement of parties, in consideration of a determi-
nate compounded sum to be paid by the debtor, without a judicial
sentence, the inhibition, which could no longer be said to be ground-
ed on a depending action, would probably fall, and the creditor be
put to the necessity of renewing his diligence upon the debtor's
obligation for the compounded sum ‡. Inhibition may proceed,
not only on debts already payable, but on those, the term of
ment of which is not yet come, Hope, (INHIBIT.) March 19. 1622,
Napier 324, see Fac. Coll. ii. 52, (Stirling against Nisbet, Aug. 11.
1757,

pay

*The same fate attended arrestments raised as on depending actions, where the summons was not executed; Forbes, July 19. 1706, Creditors of Strichen, DICT. p. 8144; Fac. Coll. Orme, Feb. 13. 1759, DICT. p. 3690 32 1. After a dependence has been thus constituted, it subsists till final decree is pronounced by the Court: and though an appeal be entered against an interlocutory order, an inhibition, as on a depending action, may still be competently passed; Fac. Coll. July 2. 1774, Heron, Dicт. p. 7007, (2. Bell's Com. 151, 152.)

The Court repelled the objection to an inhibition on a dependence, that it was not special as to the sum, or the ground of debt on which the action was raised; Kames, No. 36, Creditors of Tofts, Nov. 1722, DICт. p. 6970 322.

The Court would not give effect to an inhibition on a depending action which had never been terminated by decree, the matter having been submitted to arbitration; Falc. ii. 215, Reids, &c. against Napier, July 3. 1751, DICT. p. 6993 323.

320 In a case where the summons had been lost, but where the parties had notwithstanding gone on with the litigation, without any objection to the want of it, its tenor being at the same time apparent from quotations and other proceedings in process, the Court (no opposition being made) granted inhibition; A. v. B., 17th June 1815, Fac. Coll.

The defender in an action cannot inhibit on the dependence. But it is competent for him to apply, by special bill, for inhibition in security of expenses of process found due to him, though not actually modified and decerned for; Wilkie, 25th Feb. 1815, Fac. Coll.

321 This rule, in regard to arrestments, is now altered, the bankrupt statute declaring," that, in time coming, letters or precepts of arrestment upon any depend"ing action may be granted summarily, upon production of the libelled summons ;" 54th Geo. III. c. 137. § 2. ; Infr. B. 3. t. 6. § 3. in not. But no alteration has been made in regard to inhibitions; 2. Bell's Com. 151.

322 Mr Bell observes, that in this note, "the result of the decision is stated too "broadly, as if applicable to every case without exception;" and he states the rule as being more accurate in this shape: "Where the action is for a precise sum, that "sum must be specified in the inhibition: but frequently the action is of such a na"ture that it is impossible to specify any certain sum, as in counts and reckoning; "and in such cases, it is sufficient to refer particularly to the relative action; 2. Com. 151. In point of fact, the gaining plea in the case of Tofts was quite in consonance with this," Since the law allows inhibition upon every depending action, the inhi"bition must receive its form and shape from the action whereon it is founded, which, "in the present case, was a count and reckoning against a tutor."

323 Reported also by Elchies, v. INHIBITION, No. 17. The same principle decides the case put in the text. "But there seems to be no doubt, that a special agreement "to reserve the effect of the inhibition may be effectuat, if the creditor stipulate to be "allowed to proceed with the action, so as to have a judicial decree for the sum award"ed;" 2. Bell's Com. 152. So held, accordingly, Fac. Coll. Stewart, 16th Feb. 177Ở, Dicт. p. 7004; and again, Anderson, 25th May 1821, (S. and B.)

324 Hope's report of this case is omitted in Mor, DICT.; but another by Haddington is given, p. 8156. Both are to the same effect, and are so referred to; 1. Fol. Dict. 540.

1757, DICT. p. 6994); and even on conditional debts, though these are not proper obligations till the existence of the condition under which they are granted, Stair, Dec. 11. 1667, Hog, (DICT. p. 7039); also reported by Dirl. 116, (DICT. ibidem) 324. But if an inhibiter upon a conditional debt shall bring an action of reduction ex capite inhibitionis, before that period, the decree of reduction can have no present effect: It is barely declaratory; and its operation is suspended till the obligation be purified by the existence of the condition.

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4. The legal forms required in carrying on the diligence of inhibition, regard either, first, The personal execution of it against the debtor; or, 2dly, Its publication; which, in several of our statutes, gets also the name of execution; or, 3dly, Its registration. The solemnities relative to the personal execution of the letters, which serves as an intimation to the debtor, are the same which are prescribed in the execution of summonses, and letters of horning, by 1540, C. 75; which have been already explained, T. 5, § 55. The explaining the manner of publishing and registering interdictions has been hitherto postponed, because the essential forms are precisely the same in interdictions and inhibitions; and therefore, what shall be here said of the one is to be understood also of the other. And first, as to publication: By our ancient customs, observed by Balfour, p. 186, C. 2, it behoved inhibiters to publish their diligence at the market-cross of the head borough of the shire where the debtor resided, by a messenger reading the letters at the cross, after three oyesses made for convocating the lieges, in the same manner as in the publication of hornings; and by his afterwards affixing a copy of the letters, and of his own execution to the cross * The only statute which mentions the publishing of inhibitions in express terms, 1597, C. 268, has plainly had an eye to that custom; and directs, that where the party inhibited resides within a stewartry, or other separate jurisdiction, the diligence shall be published at the head borough of that jurisdiction, in place of the head borough of the shire. But this branch of the act is now rendered useless, by the abolition of separate jurisdictions. An inhibition executed against the debtor personally, in an house where he has resided only occasionally for forty days, may be published at the head borough of the jurisdiction, either of that dwelling-house, or of the debtor's proper and fixed domicil, Tinw. Dec. 2. 1748, Creditors of Kinminity + 326. An inhibition used by an interdictor against the interdicted, and duly registered, has been adjudged to supply the

want

* An inhibition was found null, because the execution did not bear the three oyesses, nor the open proclaiming or reading of the letters; Fac. Coll. Jan. 24. 1782, Creditors of Jarvieston, DICT. p. 3797 325.

+ Reported by Kilk. No. 10, voce INHIBITION, DICT. p. 6982. If the debtor is out of Scotland, the inhibition must be published at the market-cross of Edinburgh, and pier

324 Inhibition, on future or contingent debts, is subject to the control of equity;" 2. Bell's Com. 151; vid. infr. h. t. § 8.

325 An inhibition was sustained, where the execution bore three oyesses, open and public reading, though it wanted the words open proclamation, in respect that three oyesses and public reading import open proclamation; E. Leven, Feb. 14. 1706, DICT. p. 3769.

346 From Kilkerran's report of this case, v. INHIBITION, No. 10., DICT. p. 6982, the alternative course suggested in the text does not appear to have received the sanction of the Court. On the contrary, the Court seem to have thought, that the law" is ra "ther more effectually complied with by publication at the market-cross of the head

"burgh

TITLE XI.

The legal forms

required in in

hibition.

Book II.

All inhibitions and interdictions must be

registered with in forty days of their publica

tion.

want of publication of the interdiction, Stair, Nov. 10. 1676, Steuart, (DICT. p. 3092); which is an evidence, that the formal publication of the interdiction by a messenger is not accounted an essential solemnity, (for solemnities cannot be supplied by equipollencies), but is enjoined barely as a rational and proper method of notifying it to the lieges.

5. As experience soon taught, that the executions and publications of this diligence might be easily concealed from purchasers and creditors, or forged to their prejudice, all interdictions and inhibitions, with their executions, were, by 1581, C. 119, NO. 1, ordained, for the security of singular successors, to be registered in the books, both of the shire where the debtor resides, and, if he has lands in another shire, in the books also of that shire where the lands lie, within forty days after publication, under the sanction of being declared null. This act was in part repealed by that clause of the posterior

pier and shore of Leith; Stair, B. 4, T. 50, § 13; Bankton, B. 1, T. 7, § 136; Fac. Coll. Feb. 1. 1793, Pierse, &c. Dicт. p. 3721. See, however, Feb. 2. 1750, Creditors of Murray, DICT. p. 3718 327.

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burgh where the party 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." See also to the same effect Kilkerran's remarks, Ibid. No. 12., in E. March, 2d Feb. 1750, Dicт. p. 3719. It is singular enough, that the very publication which is here thought to be objectionable, had been but a few years before repeatedly given effect to, as the only competent course; the Court being then of opinion, that an inhibition executed against the party himself at the place of his occasional domicil must be published at the head burgh of the same jurisdiction; " and "that, in no case, is it regular to execute an inhibition personally at a debtor's "dwelling-house within one jurisdiction, and against the lieges at the market-cross of "another jurisdiction;" Fol. Dict. Baird, Sth Nov. 1739, Dicт. p. 3738; Kames, Rem. Dec. Dunbar, 27th July 1745, DICT. p. 3705. Between these conflicting authorities, there is perhaps sufficient to support the alternative view of the text. At the same time, the safest practical course is that suggested by a very eminent practitioner : "How is a practitioner to conduct himself upon a matter of this kind, between the "absolute and occasional residence of his party? If his information be not very expli"cit, his only method is to publish at both market-crosses;" 1. Ross's Lectures, 493. The above difficulty, however, can occur, only where the party has actually acquired a second domicil. Where he has not resided long enough for this, publication at the head burgh of his occasional residence is undoubtedly incompetent; it must be made at the head burgh of his regular domicil, in ordinary form; Low, 10th March 1815, Fac. Coll.

The jurisdiction within which the lands are situate, in no case enters into the question as to the proper place of publication; Infr. h. t. § 6.; Stair, B. 4. t. 50. § 10.; Bankt. B. 1. t. 7. § 136; Creditors of Kinminity, supr.: Fac. Coll. Pierse, &c. 1st Feb. 1793, DICт. p. 3721.

327 In this case it was found to be good publication, though made only at the head burgh of the domicil at which the debtor usually resided when in Scotland; and Kilkerran supports this, as the only proper mode of publication. Elchies also reports the case, v. INHIBITION, No. 13.; and gives another to the same effect, Hamilton's Creditors, 5th June 1752, Ibid. No. 18. In the case of Pierse, publication was made both at the head burgh of the domicil, and at the market-cross of Edinburgh, pier and shore of Leith; though it no doubt seems there to have been considered that publication in the latter way alone would have been sufficient. The passage in Stair referred to applies to the execution against the debtor, and not to the publication to the lieges; while that in Bankton, though favourable to the view taken in the case of Pierse, is not very precise. In these circumstances, it may not seem altogether free from danger, to rest entirely on a publication at the market-cross, pier and shore: though, from the almost universal practice in favour of that course, little apprehension, perhaps, needs now be entertained. At the same time, if absolute safety be desired, the safest course undoubtedly is, as in the above case of Pierse, to publish the diligence both at the market-cross, pier and shore, and at the head burgh of the domicil. See on this subject, 1. Ross's Lectures, 494. et seq.

Where the debtor resides in Scotland, inhibition published in the usual way, at the head burgh of that residence, is effectual against foreigners; and there is no necessity for publication, at market-cross, pier and shore; Fac. Coll. Topham, &c. 26th Jan. 1808, DICT. v. INHIBITION, App. No. 2.

posterior one in 1597 formerly recited, which enacts, That where the party dwells within a separate jurisdiction, the diligence is to be registered in that separate jurisdiction. But the clause of the act 1581, which required registration in the books of the shire where the lands lay, continued in force notwithstanding the posterior act 1597, till the abolition of separate jurisdictions by the act 20. Geo. II.

6. By 1597, C. 265., letters of interdiction, inhibition, and some others therein mentioned, were to be registered, in the books of the proper jurisdiction, in presence of a notary and witnesses; and if the sheriff, bailie, or steward, refused, he who presented them for registration might get them recorded in the books of session. But by 1600, C. 13., the presence of a notary and witnesses is dispensed with, and an option given to register those writs in the general register of the session, though the registration should not be refused by the judge of the inferior jurisdiction. From the injunction given by act 1581, to register inhibitions both in the books of the jurisdiction where the inhibited resides, and where his lands lie, messengers took occasion to publish them also in both jurisdictions, which became a custom almost universal: But the omission of this form, which was superadded by messengers only for their own advantage, makes no nullity in the registration, St. B. 4. T. 50. § 10. vers. The next reason; Forbes, Feb. 14. 1710, Lo. Gray, (DICT. p. 3733). It is because registration is a surer way to certify the lieges, than publication at the market-cross, that registration is required, both where the party resides, and where his lands lie; whereas publication is sufficient if it be used at the jurisdiction of the party's residence. Registration in the general register secures all the lands of the inhibited from alienation, in whatever part of the kingdom they may lie; but where the inhibition is recorded in the register of a particular shire, it covers no lands but what are situated in that shire; and for this reason it may be prudent for a creditor who is not fully apprised of the extent and situation of the whole estate of his debtor, to record his diligence in the general register Though an inhibition should be registered in the books of a shire where part of the lands belonging to the debtor lies, within forty days after it has been, in compliance with the aforesaid custom, published in that shire; yet if it be not registered also, within forty days from the publication, in the shire of the debtor's domicil, it can have no effect as to those particular lands, Tinw. Dec. 2. 1748, Creditors of Kinminity † ; because publication, in the shire of the domicil, being that which is directed by the law, the omission to register the letters of inhibition in it within forty days from that publication must be fatal to the diligence.

328

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7. To prevent inhibiters, to whom the principal executions are returned after they are registered, from altering them, in case they should be found informal, the clerk of the record is, by 1581, C. 119., NO. 1, required to mark them with his subscription before returning them to the inhibiter who presents them for registration. An execution, therefore, which was not so marked, was declared void, as wanting the proper legal check prescribed by the law against false executions, Br. 90. (Preston, Feb. 22. 1715, DICT. p. 3769.) But by a later decision in a similar case, June 16. 1727, Duch.

VOL. I.

6 s

* See July 27. 1745, Dunbar, DICT. p. 3699 and 3705, (2. Bell's Com. 148.)

+ Reported by Kilk. No. 10, voce INHIBITION, DICT. p. 6982.

328 As the operation of the diligence extends to subsequent acquisitions, (infr. § 10.) the situation of which cannot at the time be known, the general register is in all cases to be preferred.

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BOOK II.

Inhibition is not allowed to pass on conditional debts, nor where the debtor is notoriously sol

vent.

Duch. Argyle, observed in (folio) Dict. ii. p. 329., the objection, That the execution was not marked by the clerk, was repelled, because the injunction of the act stood on the footing of a bare ordinance, not enforced with any sanction. It is a general rule in all diligences which require several acts to perfect them, That they are not complete till the last step: An inhibition therefore must run through all the forms of publication and registration before it become a complete diligence. Nevertheless the estate of the debtor is, after publishing the inhibition, rendered litigious, as lawyers express it; which has this effect, that the creditor who had begun the diligence is secured against all voluntary deeds granted by his debtor after the publication, though proceeding upon a cause truly onerous, provided he shall, within the time prescribed by statute, perfect his diligence by registration, Dirl. 254, (Cruickshank against Watt, Feb. 12. 1675, Dicт. p. 8393). Nay, if the debtor shall, at any time after being cited upon an inhibition used by one of his creditors, though previously to its publication, grant a voluntary right. to another creditor, such right is voidable at the suit of the inhibiter upon the act 1621, afterwards to be explained, Harc. 639, (Gartshore, March 16. 1686, Dicт. p. 1051.) 329; vid. infr. T. 12. § 16.

8. At first inhibitions, because they restrained the inhibited from the full exercise of his property, were accounted unfavourable, as carrying with them a certain degree of reproach, and therefore were never granted, except causa cognita, Balf. p. 476, C. 1., (Maxwell, July 11. 1543, Dicт. p. 7013). They are upon this ground not allowed, even by the present practice, when they proceed on conditional debts, unless it appear that the debtor is vergens ad inopiam, or that the inhibiter has some other just and sufficient cause for using that diligence, Forbes, July 17. 1713, Weir, (DICT. p. 7016)*. Hence inhibitions grounded upon obligations of warrandice, which are truly conditional debts, ought not to pass, unless the creditor who is demanding the diligence satisfy the court that it is not without ground that he apprehends some danger of having the subject warranted carried off from him by an action of eviction, St. B. 4. T. 20. § 29. Though inhibitions now pass generally of course without opposition from the debtor; yet if he appear, and offer a good reason why the diligence ought not to pass the signet, the court is in use to stay it, Fount. Feb. 15. 1699, Murray, (DICT. p. 7014). This happens most frequently where the depending action, upon which the inhibition is grounded, appears calumnious. But even where the debt is confessedly just, the court of session have sometimes stopped this rigorous diligence as emulous, where the solvency of the debtor was notorious, July 11. 1728, Royal Bank, (DICT. p. 875) †. It is not however likely that this judgment, which

* See, to the same purpose, Kilk. No. 7, voce INHIBITION, Macreadie, Jan. 27. 1747, DICT. p. 6980.

+ See Kames, Rem. Dec. No. 106, Sir John Meres, &c. Feb. 27. 1728, DICT. p. 800.

329 Mr Bell suggests, as the only remedy," that a person purchasing, or lending mo"ney, shall retain the price or loan unpaid, till the expiration of the term, at which "the inhibition, in order to be effectual, must be recorded;" 2. Com. 159. But is not this liable to objection, 1. As giving the real transaction a date different from what appears on the face of the deed; and 2. Because, though registration must take place within forty days from the publication, yet, no peremptory period being assigned within which publication shall be made, there will necessarily be some degree of uncertainty in calculating the expiration of the forty days? Perhaps a search of the Signet books affords the best practical security. But might not all objection be removed, by placing inhibitions on the same footing with seisins, and giving them no effect against third parties until recorded? It is a good general suggestion of Mr Bell's, that there should be a record for the commencement of all such procedure, as is guarded by litigiosity; 2. Comm. 158.

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