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Scottish Court of Session Decisions >>
Crichton v Earl of Tullibardine. [1600] Mor 6941 (00 January 1600)
URL: http://www.bailii.org/scot/cases/ScotCS/1600/Mor1706941-001.html Cite as:
[1600] Mor 6941
The party inhibited must be cited either personally or at his dwelling place, not by proclamation at the market cross.
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In an action of reduction pursued by Robert Crichton of Cluny contra William Earl of Tullibardine the Lords found, That an inhibition was null, because the Earl of Athole was not inhibited, neither personally, nor at his dwelling-place, albeit he was inhibited by open proclamation at the market cross of Forfar.
The like decided betwixt Alexander Syme and the Lady Coldingknows, (see No 8. p. 6943.,) and this was decided in presence of the hail Lords, omne suna voce dicentes.
The arguments to sustain the inhibition were two. 1 mo, Not necessary, because the party is inhibited by open proclamation, which is sufficient to put him in mala fide as well as the lieges. The answers were, 1mo, That the force of inhibitions depends by authority, ex mandato judicis, and therefore, the form prescribed by the Judge, in directing of inhibitions, ought to be precisely observed, specially seeing the effect thereof is ad tollendam libertatem commercii; quia libertas est juris naturalis. 2do, A party cannot be inhibited ipso facto, except in the contract he made that himself, but a bond or contract to pay sums cannot inhibit him; argumento, but if inhibitions were raised, not upon a contract, but upon the dependency of an action, casus dubius est eventus or rather by a husband against his wife upon a naked supplication; his casibus the party behoved to be inhibited; ergo, et in contractibus, quia eadem est ratio, seeing parties are as well obliged ex contractu, as ex quasi contractu, et negotio gesto, 3tio, If the party were in mala fide, ergo his heir should also be in mala fide, and consequently inhibitions should be perpetual; and so they did with the party inhibited; and the Master must be inhibited de novo, ergo non est satis to say, that he was in mala fide, but also he must be formally inhibited; what is necessary against the heir, must also be necessary against the contractor. 4to, The words of the act of registration of inhibition 1581, cap. 119, which ordains the same to be registered in the sheriff's books, where the party inhibited dwells, which infers necessarily, that the party may be inhibited. 5to, The practicque betwixt Syme and the Laird of Coldingknows.
