Whether Inhibition secures not only the Debt, but all Diligence following on it. - Inhibition has effect only from the date of the Decree of Reduction.
Trotter v. Lundie
Date: 9 February 1683 Case No. No 116.
In a reduction ex capite inhibitionis against real rights, found, the inhibition was purgeable upon payment of the principal annualrent and penalty, without respect to accumulations and Sheriff fees, contained in an apprising led on the inhibition.
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In the action of reduction, Trotter against Lundie, wherein Trotter having pursued a reduction upon an inhibition served against his debtor, before Lundie obtained his right of wadset from him, and Lundie having alleged, That he could not reduce his right, because he offered to purge by payment of the debt, which was the ground of the inhibition; and it being replied, That the same was not purgeable, in regard there was a comprising led thereupon, which was expired; and it being duplied, That the comprising could not be drawn back to the inhibition, so as to have the benefit of an expired legal, in regard the defender's wadset intervened betwixt the inhibition and comprising, and so was preferable to the comprising as a real right, and that the ground of the inhibition was always purgeable by payment; the Lords found, that, notwithstanding the comprising was expired, yet, that the inhibition was always purgeable by payment of the principal and penalty contained in the bond, and refused to make the defender liable, either for the accumulated annualrents, or Sheriff fees, contained in the comprising.
Fol. Dic. v. 1. p. 476. P. Falconer, No. 48. p. 26.*** Harcarse reports this case.
An inhibited person having granted a wadset, and the inhibiter having thereafter comprised upon the ground of his inhibition, and the apprising expired, the wadsetter offered to purge the ground of the inhibition.
Answered, That the expired apprising, upon the ground of the inhibition, hindered it to be purged; and the wadsetter was in mala fide to contract with the debtor, after the command of the inhibition, and ought to have redeemed the apprising before expiring.
Replied, The inhibition being only a diligence, and no real right, it secures only the principal sum and annualrents due per bond, and in tanto the comprising and inhibition concurring will receive satisfaction; but the accumulated annualrent and Sheriff's fee, which only fall due by the apprising, cannot be sustained in prejudice of the wadset, a prior public right; nor was the wadsetter obliged to redeem the apprising, which was posterior to his right; but if the appriser will purge the wadset, his apprising may have its full effect against the debtor and posterior rights.
The lords found the inhibition purgeable by payment of the principal sum and annualrent, notwithstanding the expired comprising. In this process, the execution of the inhibition being quarrelled for not bearing three oyesses, the Lords were divided about it, and the votes ran equally for sustaining and annulling the same; and the Chancellor did not interpose his casting vote.
Harcarse, (Inhibition.) No. 631. p. 173.*** Fountainhall reports the same case.
1681 June 21.—The Lords, on Newton's report, sustained an inhibition that wanted three several oyesses, because the inhibiter offered positive to prove by the witnesses, that the three oyesses were actually adhibited and used. Yet the Lords, at other times, have found the contrary, that this solemnity was not suppliable by the witnesses, when omitted.
1682. November 29.—In the case of Lundy against Trotter, (mentioned June 21 st, 1681,) the Lords demurred to annul an inhibition which wanted the three oyesses, but bore lawful publication, which imports it was read; seeing it was offered to be proved by the witnesses inserted, that the three oyesses were truly adhibited; but this being wanting as it stands registered, it were very dangerous to dispense with it; and to admit such a supplemental probation were to render registers superfluous; for one may buy, notwithstanding of an inhibition, if he sees it has nullities, by looking at the register. This case was to-day voted; and there being sixteen Lords, Ordinary and Extraordinary, within, besides the Chancellor, and the Lord in the Outerhouse, and two absent, they were equally divided, eight against eight; so it came to the Chancellor's casting vote, which happens not oft; and he craved time to deliberate and think upon it, as a leading important case. There were nine scores of inhibitions produced, which had the same want and defect; so that, if it were annulled, all these diligences would fall in consequentiam. As this is an argument ab incommodo, so we see as great inconveniencies on the other hand, to dispense with these ancient solemnities, (for the hoesium is from the Norman law,) or to prove them ex intervallo, though they signify nothing in themselves, nor tend, in the least to certiorate the lieges. Quid juris if the Chancellor decline to give his suffrage? An in pari casu reus est absolvendus, ut actus valeat, or are they to be forced to agree?
1683. February 9.—In the question betwixt Lundy and Trotter, (mentioned 29th November, 1682,) reported by Pitmedden, the Lords found the sum of the inhibition purgeable and redeemable, notwithstanding that upon the bond, which is the ground of the inhibition, there was a comprising led, and the same was now expired; which, in effect, was to redeem the expired comprising: But the wadsetter who competed here, and offered to pay the sum in the inhibition, was preferable to the comprising; only the inhibition, being prior to his right, straitened him. And the Lords, after balancing the case, found this more equitable than the contrary decisions, on 24th February, 1666, Grant, No 114. p. 7045.; and 8th July, 1670, Lady Lucy Hamilton against Pitcon, No 115. p. 7046.; observed by Stair, which were but una hirundo: And found the sums in the comprising behoved to be paid, but not the accumulation of the annualrents due and apprised for at the time of the comprising; and found the said comprising could not be drawn back to the inhibition, in regard the wadset foresaid had intervened betwixt them.
