United Kingdom House of Lords Decisions

After the remit from the House of Lords on the 26th July 1822, the appellant Mrs Fullarton raised against the respondent, Sir Hew Dalrymple Hamilton, a supplementary action of removing, count and reckoning and payment, to the extent of L.200,000, as the amount of rents and profits from the death of John Hamilton in 1786, inhibited on the dependence, and used arrestment to the amount of half a million sterling. The respondent petitioned and complained to the Court, that this measure was nimious and oppressive, and resorted to for the purpose of harassing and distressing him; and he presented a bill to have the arrestments loosed without caution. The Court found (1st February 1823), “that the inhibition complained of is nimious and oppressive, and recall the same; ordain it to be scored in the record, and to be marked on the margin that the same is done by authority of the Lords;” and superseded consideration quoad ultra. On advising the bill, the Court held, that the arrestments ought to be loosed without caution, unless Mrs Fullarton should find caution on her part to answer for the damage resulting from keeping up the arrestments; and in consequence of this deliverance, found it unnecessary to pronounce further in the petition and complaint; and afterwards, on advising a reclaiming petition for her, (4th March 1823), adhered, and found her liable in the expense of the answers. ^*

Mrs Fullarton appealed the question of inhibition.

Appellant.—The inhibition and arrestment were used in a competent form. They were precautions which the appellant had a legal right to resort to. If the property of the respondent be entailed, then the inhibition can do him no harm. But, in point of fact, great part of it is held by him in fee-simple. Besides holding under the deed 1780, the appellant has no security against creditors, for that deed is not recorded. The appellant is not actuated by oppressive motives. The respondent is not to be regarded to be in bona fide, merely because he avers it.

Respondent.—The inhibition is altogether unwarranted. The appellant is in no danger, whatever be the result of the action. Besides, it was incompetent to raise it on the supplementary action. The nimious and oppressive nature of the proceedings is spoken out by the sum for which the diligence has been raised,

_________________ Footnote _________________

* See 2. Shaw and Dunlop, Nos. 241-2.

Page: 533↓