Scottish Court of Session Decisions

Subject_1 ANNUALRENT.

Creditors of Cockburn of Langtoun

1750, June 14.
Case No. No. 11.

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The question was, whether inhibition affected not only rights of annualrent, i. e. the annualrent-right itself or the stock, but also the bygone annualrents due before inhibition? The Lords, 15th June, found the bygone annualrents did not fall under inhibition, and preferred the assignee,—unanimous except Kilkerran, who argued long on the otherside. The President joined in the interlocutor, but differed from the whole Bench, as well as the Bar, as to his reasons. He thought, that even things properly moveable might fall under inhibition, or subjects descending to executors; nor 2dly, did he think it of any moment, though bygone annualrents were not apprisable or adjudgeable, for he thought that subjects affectable by arrestment or confirmation might fall under inhibition; 3dly, He thought that bygone annualrents might be adjudged. But his opinion was founded on this, that personal rights did not fall under inhibition, and that bygone annualrents are but personal though secured upon the lands. But I confess his reasons would hardly have satisfied me, for a personal disposition of lands or adjudications are but personal rights, and yet would fall under inhibition. 2do, I cannot look on bygone annualrents secured by infeftment as personal rights. He said, that if they were real, they must be now created; but in that I do not agree, for an infeftment in a yearly annuity is an infeftment for every year that should afterwards come due. 2dly, We found that an inhibition on letters of horning, that is bearing “because the Lords had seen the horning” was void and null; but this la6t superseded, because it was said, that the universal practice some years ago wag otherwise.

We determined the question mentioned 14th June 1750, whether it was a nullity in the inhibition, that it proceeded only on a horning? and the parties produced no less than 176 instances of such inhibitions since the 1692; and we unanimously repelled the objection—3d July 1751.