Scottish Court of Session Decisions

Subject_1 INHIBITION.
Subject_2 SECT. I.

Nature, Stile, and Effect of an Inhibition.

Creditors of Rosehill
v.
Creditors of the deceased Mr William Thomson

Date: 22 November 1714
Case No. No 39.

An inhibition raised before a summons was executed, found null.

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Mr William Moir having raised summons upon the passive titles, against John Ross of Rosehill, as representing his father, dated the 8th, and signed the 9th of May 1693, and (before executing thereof) raised also letters of inhibition, containing arrestment, dated the 11th, and signed the 12th of the said month and year foresaid; Mr Moir assigned the debt and diligence to Mr William Thomson writer to the signet, who obtained decreet in absence against John Ross, and then adjudges. This having occasioned a competition betwixt his creditors and the other creditors of Rosehill, Mr Thomson's creditors crave preference upon the said inhibition, as being prior to the contracting of the other's debts.

Answered for the creditors of Rosehill, That the inhibition was null, as proceeding upon a false narrative (viz. as the said summons and action duly executed, shewn to the Lords, has testified,) in so far as there was no summons executed, and consequently no depending process the time of raising the inhibition. 2do, A decision was alleged in a parallel case, 19th July 1706, where, in a competition of the Creditors of Strichen, voce Legal Diligence, the Lords found, that a libelled and signeted summons, before it was executed, did not make a depending action; and therefore did not sustain arrestments raised and executed upon the summons on the passive titles against Strichen's children.

Replied for Thomson's creditors, That whatever of old has been the practice, yet for a long time it had been customary to raise general letters of inhibition and arrestment in the way now quarrelled; by which custom, the lieges are made to believe they act warrantably; so that here (if in any matter of form) the brocard should hold, communis error jus facit, et consuetudo optima legum interpres. 2do, A plain inconveniency would otherwise follow with respect to persons at a distance, where the executed summons must be returned before the letters of inhibition can be taken out; nay without this, the very executing of a summons were the mean to put the debtor upon ways to elude it. 3tio, In Strichen's case, some of the arrestments were laid on prior to the execution of the summons.

Duplied for Rosehill's creditors, That no custom could introduce an abuse, of authorise a practice contrary to law; that it was law and stile formerly, and the common stile to this hour, cannot be controverted; and if the Lords had designed otherwise, they would have allowed the writers to the signet to have altered their stiles in the case of inhibitions on depending processes; but the continuing the stile makes the executing still essentially requisite, previous to the raising the letters of inhibition; and what was law formerly must still continue, unless repealed. 2do, Common bills whereupon letters are directed, do pass of course periculo petentis; and if they proceed upon a wrong narrative, the will of the letters can take no effect, as proceeding upon obreption. 3tio, The argument from the inconveniency, is of no force, as proceeding ab incommodo, which can never authorise a practice contrary to sense, law, and stile. 4to, As to the above cited decision, the above allegeance did no way influence it; for, the sole ratio decidendi was, that a libelled and signeted summons did not make a depending action.

The Lords sustained the nullity objected against the inhibition, as proceeding without a warrant; the summons whereupon it is founded, not being executed the time of raising the inhibition.

Act. Horn. Alt. Sir Walter Pringle Clerk, Sir Ja. Justice. Bruce, v. 1. No 9. p. 13.