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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jean Livingston and Mr William Tait, her Husband, v Robert Forrest, Merchant in Edinburgh. [1713] Mor 6967 (17 February 1713) URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor1706967-038.html Cite as: [1713] Mor 6967 |
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[1713] Mor 6967
Subject_1 INHIBITION.
Subject_2 SECT. I. Nature, Stile, and Effect of an Inhibition.
Date: Jean Livingston and Mr William Tait, her Husband,
v.
Robert Forrest, Merchant in Edinburgh
17 February 1713
Case No.No 38.
Inhibition sustained upon a general charge to enter heir, in so far as concerned debts particularly libelled in the general charge.
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In the reduction ex capite inhibitions, at the instance of Jean Livingston and her husband against Robert Forrest, the Lords sustained an inhibition upon a general charge to enter heir, given by Mr David Lyon, writer to the signet, to John Robertson, apparent heir to Gilbert Robertson of Whitehouse, in so far as concerned three thousand and fifty merks of principal, libelled in the general charge to be due by Gilbert Robertson to Mr David Lyon, by several bonds produced; and in so far as concerned the annualrents of the said sum, since the date of the execution of the general charge; but not as to preceding annualrents, nor yet as to the penalties in the bonds;
Albeit it was alleged for the defender, That inhibitions do regularly proceed upon liquid obligements to pay or perform, granted by, or upon a depending process against the person inhibited; whereas a general charge to enter heir is no obligement of the apparent heir, nor a dependence against
him, but a preparatory step to an action upon the passive titles, without any conclusion of payment; In respect it was answered, It is true, when inhibition is used upon a general charge, it doth not suffice, that the letters of charge bear only in general, That the charger had diverse and sundry claims; but they ought to mention the debt, for certiorating the lieges, as to the sums in prejudice whereof they were not to contract with the inhibited person, which is done in this case. 2do, John Robertson, having, upon the charge to enter heir preceding the inhibition, refused to renounce, and suffered thereafter a decreet upon the passive titles to pass against him, he is understood to have been heir retro from his predecessor's death; and the inhibition raised and executed against him is the same in law as if it had been raised upon his own personal bond; he being in all respects una et eadem persona cum defuncto. Therefore it was, That July 5. 1623. Kirkwood contra Belshes, No. 80. p. 7017., the Lords sustained an inhibition against the apparent heir, though neither charged to enter, nor decerned upon the passive titles, in regard he entered heir ex post facto. 3tio, A charge to enter heir is considered as the commencement of a process, in so far as it renders the matter litigious, and interrupts prescription. Again, if a creditor who hath charged his debtor's apparent heir to enter, could not secure himself by inhibition, the charge would alarm the heir, and put him upon methods to disappoint it. 4to, It is more convenient to use inhibition upon a general charge, than upon a summons of constitution; partly, for that the inhibition upon a summons would fall therewith if the summons ly over year and day without insisting; partly, because a general charge may be executed against an apparent heir within the annus deliberandi, and inhibition thereon secures against his deeds in the interim.
The electronic version of the text was provided by the Scottish Council of Law Reporting