Scottish Court of Session Decisions

Subject_1 INHIBITION.

Creditors of Hope of Kerse, Competing

1750, Feb. 2.
Case No. No. 12.

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In 1734 a process of maills and duties was raised by Horsburgh, and the creditors having raised a multiplepoinding, four other creditors compeared, viz. the Society for Propagating Christian Knowledge, Watson's Hospital, Johnston of Kirkton, and Mrs Ann Hope, who applied for a sequestration, the petition was remitted to the Ordinary, when Sir Alexander compeared, and said the estate was more than sufficient for these creditors, and for a competent aliment to him; and the creditors said they did not oppose an aliment,—and the ordinary sequestrated, and reserved to Sir Alexander his house and parks, and about L.790 to be paid by the factor. This was in January or February 1736. Thereafter in 1736 a ranking and sale was raised, but slowly insisted in, and meantime Sir Alexander went on contracting new debts, and creditors till then only personal adjudged, till January 1744, when the creditors observing that there would be a deficiency petition to recall the sequestration; but some creditors not consenting, it was refused, till January 1745, that on a new petition it was recalled. The whole aliments amounted to L.22,000, and the postponed creditors insisted that it should be proportioned on all the creditors, as expenses of ranking are by the act, since all the creditors consented, and instanced two precedents, of Bailie Stewart in Elgin's creditors, touching his aliment, and Bailie Hamilton in Abbay's creditors, touching his funeral expenses; but as the sequestration was awarded only in a maills and duties and multiplepoinding, where there were but five creditors, on a representation that the remainder was more than sufficient for their debts, when there was not so much as a process of ranking and sale raised, and all the debts then on record by infeftments or adjudication were truly far short of the estate;—the Lords considered this as not a commune negotium, but rather as a sequestration of part of the debtor's estate,—they found that the aliment could not be stated as any of the fund or subjects to be divided, but only the rents, deducting that aliment, and that the deficiency through that aliment could only affect the postponed creditors. Renit. multum Kilkerran.

In the same process a question occurred of the operation of an inhibition, whether it affected all posterior contractions equally and proportionally, or only the least preferable, agreeably to the decision 1747 in the case of Campbell of Whitehaugh, (Dict. No. 48. p. 6974.) The postponed creditors said that decision was where all the posterior creditors were real by infeftment, and the creditors acted on the faith of the records, whereas here the posterior contractions were all personal, with whom the records had no concern. Answered for the preferable creditors, That the point mentioned in the former case and whereupon the decision proceeded, was that inhibitions could only reduce posterior debts that were to their prejudice, and there was no prejudice while there were sufficient funds to pay the whole, and therefore they could only reduce those that exhausted the price; 2dly, That of the then posterior contractions some had adjudications on them before the other debts were contracted, therefore they must be equally secure as if they had then got infeftments or had inhibited, and could not be prejudiced by new debts contracted after these adjudications; that that consideration had moved the accountant to propose a third scheme, viz. that debts contracted after adjudications, where both debts were after inhibition, should be first burdened before these adjudgers,—but said that in this very case that would be altogether inextricable. The Lords found that the inhibition should affect only such debts contracted after inhibition as were least preferable, renit. Drummore et Kames. The President declined himself, and the Lords put me in the chair because I was reporter.