Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Mr John Eleis, elder, v. Wishaw
Date: 5 December 1671
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This day I understood of a practique found some space ago by the Lords, betwixt Mr. John Eleis, elder, and Wishaw, about an inhibition, the style whereof expressly bears that the party inhibited grant no renunciation of rights to his debtors. Notwithstanding whereof the Lords found, where a person inhibited had a wadset-right in a man's hands, the wadset giver might pay the money, and take a renunciation from his creditor, who stands inhibited at the instance of his creditor again, notwithstanding the inhibition, which reaches not to that case, since the way to affect that wadset is only a comprising. Siclike it is only stilus curiæ, where the inhibition bears that he dispose upon none of his moveable goods and gear; whereas an inhibition is only for heritage. Quæritur, If inhibition will reach against a bond bearing annualrent payable to heirs and assignees, (secluding executors,) for such bonds by act of Parliament in 1661, are declared to be heritable; if they be, then I think the inhibition will not extend to them, unless it be published at the market-cross of the head burgh of the shire where the debtors by the said bond live. Quæritur, If a man inhibited may assign an heritable sum for payment of a debt contracted by him ante inhibitionem, or if the said assignation will fall ex capite inhibitionis. It seems he may, because a man inhibited may pay a debt, though it be heritable. Ergo, he likewise may assign for payment, especially where it depends upon a cause ab ante. Though it may be answered, the reason why such payment comes not to be questioned, is because of its latency, by which it comes not to the inhibiter's knowledge. Yet if the debtor be bankrupt, then, by the 18th act of Parliament in 1621, he cannot gratify his creditors by preferring one to another, and so prejudge the anterior diligence of any. When a man is to be esteemed bankrupt, whether quando debita excedunt bona, or when he has a bonorum, or when he lies registrate at the horn year and day, or when he is registrate though year and day be but in cursu, in medium, relinquo. The Lords have oft now found that an inhibition reaches non solum bona immobilia presentia belonging to the debtor at the time of the serving the inhibition, but likewise omnia futura et acquirenda, all heritages he conquishes thereafter during his lifetime. Vide Hadington, 23d Feb. 1623, Seaton against Moriston. It may be said a man inhibited cannot assign nor discharge a reversion; ergo, neither renounce a wadset. I answer, the difference is very wide; the assigning or discharging a reversion is a voluntary deed, whereunto he cannot be compelled; whereas the taking his money and renouncing his right, is a deed which he is either actually compelled to do, or at least may be by virtue of the obligement given by him for reversion.
This case is now determined by the printed act of Sederunt, 19th February 1680. Vide supra No. 191, [30th June 1671.]
