Scottish Court of Session Decisions

Subject_1 INHIBITION.
Subject_2 SECT. I.

Nature, Stile, and Effect of an Inhibition.

M'Cartney of Blaiket
v.
Irving of Drumcoltran

Date: 15 January 1702
Case No. No 36.

An inhibiter cannot compete for mails and duties, unless he has also adjudged.

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John Maxwell, heritor of the lands of Cocklike, dispones the same to Jean Guthrie, in anno 1636, from whom Blaiket has right by progress, and pursues mails and duties.

Compearance is made for Drumcoltran, who alleges, He has a preferable right, in so far as the said John Maxwell stood inhibited, at the instance of James Maxwell his brother, for 4000 merks, before the said disposition to Guthrie; and having granted a bond of corroboration of the ground of inhibition, restricting the same to 2000 merks, there was an apprising led upon that corroboration, which was conveyed to Drumcoltran, and he thereupon in possession.

It was answered, No regard to the apprising, posterior to his (Guthrie's) right; because it proceeded upon a voluntary bond of corroboration, and so could not be drawn back to the date of the inhibition.

“The Lords found, That Drumcoltran, as appriser, upon the bond of corroboration could not quarrel deeds as posterior to inhibition used upon the debt corroborated.”

It was farther alleged, That Drumcoltran had also right to the debt corroborated, and to the inhibition, and repeated his reduction ex capite inhibitionis.

It was answered, A reduction ex capite inhibitionis is not competent in a competition for mails and duties, unless the inhibiter had also apprised or adjudged the mails and duties; because inhibition is merely a prohibitory diligence, annulling posterior voluntary deeds in prejudice of the inhibiter; so that, unless the inhibiter could affect the mails and duties by his diligence, he cannot pretend he is any way prejudged by the deeds in favours of the pursuer, in respect that, if Maxwell, the common author, were pursuing, he could not be excluded upon the bond and inhibition; and the pursuer is found preferable to the apprising and corroboration.

It was replied, That reductions are daily sustained upon inhibitions, without adjudging, and particularly in rankings in order to sale, which have their rises from suspensions, or actions of multiple-poinding at tenants instance, from whence arises a competition for mails and duties; and, for the same reason, Drumcoltran should be admitted to repeat his reduction in this competition.

It was duplied, Rankings in order to a sale are not so much considered for affecting the mails and duties, as for distributing the price; and, it being the common interest of the creditors to expedite such processes, they are not in use to object the want of formalities, which a little time can supply; but it was never found, upon any debate or decision of the Lords, that, even in these rankings, the inhibiter could draw a share, unless he did compleat his diligence by adjudging; and, in this case, the question being only for the current mails and duties, to which the inhibition can give Drumcoltran no right, he cannot compete.

“The Lords preferred M'Cartney to the mails and duties, reserving to Drumcoltran to adjudge, and thereafter to pursue reduction as accords.”

Dalrymple, No 34. p. 42.