Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XIX.
Surrogatum.
Oliphant v. Irving
Date: 31 December 1703 Case No. No 115.
An heritable bond in a process before the Privy Council was proved to have been abstracted by the debtor, and he was decerned to pay the sum contained in the bond. Found that the sum did not thereby become moveable; but that an inhibition thereafter served did reach it.
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Mr John Adamson having right to an heritable bond due to his sister; and the same being abstracted by Ogilvie of Newgrange, the debtor, he pursues him before the Privy Council for the riot, either to restore the bond, or to be liable in the damage; whereupon the Council finding the libel proved, decern Newgrange for the sums contained in the bond, and which is there expressly designed an heritable bond. Adamson being debtor to William Oliphant merchant in Edinburgh, he serves an inhibition against him; after which inhibition, Adamson assigns his decreet and bond to Dr Irving. Oliphant raises a reduction of this assignation against Irving; who alleged, 1mo, That damages being decerned in place of the bond abstracted, the same were clearly moveable, and so not subject to an inhibition. Answered, The damages were but surrogatum loco rei, and so ejus naturam retinent et sapiunt, and must be heritable as the bond was. The Lords found that which came in place of the bond was heritable, as it was, seeing the heir's claiming the damages loco facti impræstabilis, shewed he had no intention to alter the nature of the debt, or render it moveable. 2do, Alleged, Heritable bonds was vox æquivoca, having various significations; for, before the act of Parliament 1641, all bonds bearing annualrent were heritable; and though they were then declared moveable quoad the younger children, yet since that time bonds excluding executors, are reputed heritable as well as bonds bearing clauses to infeft and precepts of sasine; and seeing non constat of what kind this heritable bond was, (seeing there is no more light to direct us than the decreet of Privy Council designing it an heritable bond), it must be presumed to be only a bond excluding executors, in which case none will pretend that an inhibition will hinder the transmission and conveyance thereof. Answered for Oliphant, That writs must be taken in their proper and native signification, and the denomination must be taken a nobiliore et famosiore analogato; now, it will not be denied but the proper and genuine signification of an heritable bond is, where it bears an obligement to infeft; and the other member of bonds secluding executors, is a novel invention, to prevent confirmation, and shun the commissaries dues, and to make it fall under a general service, which is a cheaper method of entry. The Lords found in dubio, an heritable bond was to be presumed to be a bond bearing obligement to infeft. 3tio, Alleged for Dr Irving, That esto it were so; yet so long as infeftment was not actually taken upon it, inhibition was not the habilis modus to reach it, else all commerce and freedom of transmission of such debts would be marred, and people taking assignations to such bonds could never be in security, they never searching registers but when there was a sasine; and though the old style of inhibitions reached moveables, yet, because of the palpable inconvenience, custom has restricted them to lands; as appears by the style set down by George Dallas. As also Stair, Book 4. tit. 50. § 2. thinks inhibitions do not reach bonds; and Dirleton, voce Inhibition, seems to incline the same way, seeing bonds are but jura et entia rationis. Answered for Oliphant, Inhibitions not only concern lands wherein infeftment passes, but also other rights where no infeftments are requisite, as reversions, tacks, &c.; and it is the creditor's advantage to have several remedies for securing his debtor's effects; and though the 51st act of Parliament 1661, declares such heritable bonds arrestable, before they are actually completed by infeftment, yet it does not seclude other legal methods of affecting such bonds by adjudications or inhibitions. The Lords thought it would be too great a clog on the free transmission of such heritable bonds before infeftment, if they were declared subject to inhibitions, therefore they found an inhibition could not hinder the disponing and assigning of such heritable bonds, and assoilzied Dr Irving from Oliphant's reduction ex capite inhibitionis.
Fol. Dic. v. 1. p. 373. Fountainhall, v. 2. p. 208.*** Dalrymple reports the same case:
Dr Irving having right by progress to a decreet of Council against Newgrange and his Lady, for unwarrantable intromitting with, and cancelling an heritable bond, granted by the said Newgrange to the Countess of Southesk; William Oliphant raises a reduction of the disposition and assignation of the said bond, ex capite inhibitionis, alleging, that the said decreet of Council being surrogatum in place of the said heritable bond, was an heritable right; and consequently was reducible, as being posterior to the pursuer's diligence; for, albeit inhibitions do not reach alienations of moveables, notwithstanding of the style of the letters prohibiting the party to dispose thereof; yet all heritable rights are affectable thereby; and, though the 51st act, Parl.1661, does provide, that heritable bonds shall be arrestable; yet it declares, that such bonds shall remain in their own nature unchanged, as to all other effects; and, before that act, and more especially before the 1641, no bond bearing annualrent being arrestable, all dispositions thereof were reducible ex capite inhibitionis.
It was answered; Inhibitions relate only to rights of lands and moveables upon lands, which are species or corpora, but not to bonds or obligations, whether heritable or moveable, unless infeftment had followed; which is the opinion of my Lord Stair and Dirleton. Neither does the style prohibiting alienations, dispositions, &c. mention bonds, except in that part thereof where contracting of debt is forbidden; and there bonds are expressly mentioned, because contracting of debts, and granting of bonds, are the foundation of diligence that might affect and carry away lands against the design of that prohibitory diligence, which, by style, reaches not the bond, nor, by custom, any moveables. 2do, No purchaser of conveyances to bonds did ever search the Register for inhibitions; because they were never understood affectable thereby; neither does it import, as to the present question, whether such rights were arrestable before the 1641, or not.
“The Lords found, That assignations to heritable bonds, whereupon no infeftment followed, though containing a clause to infeft, were not reducible ex capite inhibitionis.” See Inhibition.
