Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INHIBITION
Subject_3 Strikes not against bills, though posterior, if granted in the place of such as were prior to it.

Douglas, Heron, and Company
v.
James Brown in Scroggs

Date: 22 July 1785

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll. IX. 349; Dict. 7070.]

[The Court had no difficulty as to the validity and general effect of the inhibition executed, though not recorded at the date of the bill.]

Eskgrove. The purpose of an inhibition is, that the debtor may not have it in his power to do any thing prejudicial to creditors: that is not the case here, no accumulations are sought, and there is nothing that varies the case from what it was before the granting of the new bill.

Hailes. We ought to be cautious. The bankrupt asserts that the new bill, though for a different sum, came in place of the old bill: he might also assert that the old bill, whatever the sum in it was, came in place of another still older,—so the effect of the diligence of inhibition will be regulated by the averment of the bankrupt: it does not follow, from an old bill being produced, with the name of the acceptor taken away, and a new bill being produced, having the name of the acceptor remaining, that the one has come in place of the other.

Swinton. When a bill is retired and another granted, the old debt is paid and a new one contracted: this puts the creditor in a better situation than he was formerly, both as to summary diligence, and also as to prescription, which then begins to run anew.

Justice-Clerk. An old debt, fairly and honestly contracted, will not be hurt by a renewal of it. The law cuts down new debts alone posterior to the inhibition.

Monboddo. I cannot hold the former debt to have been extinguished by the latter obligation.

President. There is no legal evidence that the new bill came in place of the old one. The declaration of the bankrupt is nothing. If, willingly and wottingly, an old bill be retired and another granted, I hold it to be a new bill.

Braxfield. If evidence be produced of the fact, I hold that a new document does not extinguish the old debt. He quoted the case of the Creditors of Wardrobe of Cults.

[But there it appeared that the creditors of old Wardrobe did not mean to contract with young Wardrobe, and only changed the shape of their securities.]

On the 22d July 1785, “The Lords repelled the objection to Brown's ground of debt.”

Act. A. Abercrombie. Alt. W. Honeyman. Reporter, Braxfield.

Diss. Swinton, Hailes, Elliock, President.

N. B.—There seems more benevolence than law in this interlocutor. It considers the bankrupt as a neutral and a credible person.