Scottish Court of Session Decisions

Subject_1 INHIBITION.
Subject_2 SECT. I.

Nature, Stile, and Effect of an Inhibition.

Competition of the Creditors of Tofts

1722. November.
Case No. No 40.

An inhibition on a dependence sustained, tho' not special as to the sum or ground of debt on which the process was raised.

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In the competition of the Creditors of Tofts, the following objection was made against an inhibition, at the instance of Susanna Belsches of Tofts, viz. That it being served upon a dependence, did not mention that the conclusion of the libel was special as to the sum or ground of debt, for which the process was raised; which it ought to have done, in order to ascertain the lieges of the extent and import of the diligence; otherwise it would be in the power of a malicious creditor, by an inhibition upon any small sum, to disable the most opulent person of all manner of commerce; seeing the creditor being master of the principal summons, on which the inhibition proceeds, it is impossible to be apprised of the extent of the debt, or condition of the debtor; and this inconvenience may continue for many years, seeing a depending action may be preserved for 40 years, by a wakening every seven years; and although the same did terminate in a decreet, the discovery even in that case, would be attended with difficulty, the records of the Session being appointed for execution or conservation, not for publication.

It was answered, There are many processes, wherein a definite sum cannot be condescended on in the libel; such as counts and reckonings, &c. no body doubts, that such summons may be relevantly libelled in general terms; and indeed in such it is more reasonable to lay the claim in general, than to libel at hazard great sums, when upon a disquisition, there may only remain a small balance. As this way of libelling is admitted in practice, and most justifiable in itself; and since the law allows inhibition upon every depending action, the inhibition must receive its form and shape from the action whereon it is founded, which, in the present case, was a count and reckoning against a tutor. And if debtors think this sort of diligence a hardship, they have an easy remeid, by a proper application to the Lords, from whom they will obtain either a liquidation or restriction of the sum for which the inhibition is served.

'The Lords sustained the inhibition.'

Fol. Dic. v. 1. p. 472. Rem. Dec. v. 1. No. 36. p. 73.