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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Inhibitions
1678.
February.
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One serves inhibition on a personal bond,—himself is afterwards inhibited by one of his creditors,—he, notwithstanding, uplifts the money, and discharges the bond. Quæritur if his creditor who inhibited him can reduce the discharge ex capile inhibitionis. Some think he cannot; because such a bond is not made heritable by the inhibition quoad the succession, so as to make that bond fall to an heir: others affirm he can; because, at least, it is heritable quoad the security. Vide supra, num. 281, [Eleis against Wishaw, 5th December 1671.]
Anent Adjudications
II.—Quæritur if one may adjudge in the new form, according to the Act of Parliament in 1672, lands already apprised, whereof the legal is not yet expired; or, if they must, of necessity, apprise them by that act; and whether the said act makes it necessitatis or voluntatis to the creditor.
Anent Jus Relicti.
III.—Where a man dies having no estate but bonds bearing annualrent, out of thir his relict can have no third, because they are heritable quoad relictam, by Act 1641: neither can she have a terce, because they are not heritable in themselves. Quid juris? Shall she have no provision at all? Has our law no remedy? Is it here mank? May she not get an aliment decerned to her, effeiring to the estate?
Anent the Annualrent of Bonds.
IV.—In a bond, the term of the payment of the annualrent is one, the term of the payment of the principal is another; all such sums before the term of payment are moveable, where either parties, whether debtor or creditor, deceases before the said term. Quid juris? Whether will it be understood to be moveable before the elapsing of the term of payment of the annualrent, or the term of the principal sum? De hoc dubitant Doctores.
Anent Cautioners.
V.—The Lords have found, where a cautioner pays the debt, the creditor is not bound to assign him, but only to discharge. Let him age upon his clause of relief, as accords. Yet it is civilius (humanius) to assign him. An correus totum solvens adversus cceteros actionem habeat citra cessionem,—see Vinnius ad $ I, Institut. de Duobus Reis Stipulandi, num. 4to.
Anent a Debtor Cutting his Woods.
VI.—A debtor cuts his woods and planting to a considerable value; the comprisers, or other real creditors, would hinder him: Quæritur how it can be done. An inhibition reaches not, because they are mobilia; yet they are pars soli before separation, and not like to corns, which are arrestable even upon the ground, because their use is to be reaped and separated once a year. A summons or declarator may be raised, or a bill of inhibition given in, not to pass of course, but by special notice of the haill Lords; or a petition, representing the matter of fact to the Lords.
Anent Advocations by Members of Session.
VII.—It may be questioned if the Act of the Parliament 1555, anent advocating causes of members of the Session from inferior courts, can be extended beyond its rubric, which is only of actions of removing, since Everhardus in his loci legales shows us it is a good argument a rubro ad nigrum; and that Act speaks of no other; though I see no reason of disparity why it shall be denied in others more than in this; and custom since has explained it quoad all: though it may be said that custom here is not enough, being only usurped against the lieges by them who are judges in their own cause. See more of this supra, [No. 161.] versus finem.
