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Scottish Court of Session Decisions >>
The Creditors of Thomson v The Creditors of Ross of Wairdhouse. [1714] Mor 8159 (16 November 1714)
URL: http://www.bailii.org/scot/cases/ScotCS/1714/Mor1908159-067.html Cite as:
[1714] Mor 8159
Subject_1 LEGAL DILIGENCE. Subject_2 SECTION VIII.
Inhibition.
The Creditors of Thomson v. The Creditors of Ross of Wairdhouse
Date: 16 November 1714 Case No. No 67.
An inhibition on a dependence found null, because raised before the summons on which it was founded was executed.
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In the competition of the Creditors or Ross of Wairdhouse, the Lords found, that an inhibition upon a dependence at the instance of William Moir, conveyed by progress to the Creditors of William Thomson was null, because raised before the summons on which it was founded was executed; for the same reason that they also found an arrestment upon a dependence null the 19th July 1706, in a competition of the Creditors of Strichen, No 51. p. 8144.; in the said case of the arrestment it did appear, that the letters of arrestment were executed before any execution on the principal summons, whereas in the present case, the inhibition was raised two days after the summons, and both executed the same day; which the Lords did not respect as any reason to vary the decision in this case from the former, ‘because the nullity respects not the execution, but only the letters of inhibition or arrestment, which letters proceed upon a bill, and the bill relates to a process depending; and the deliverance runs in these terms, because the Lords have seen the dependence,’ a summons unexecuted is no dependence, and the bill which is the warrant of the letters passing of course periculo petentis is null when there is no dependence.
Fol. Dic. v. 1. p. 541. Dalrymple, No 119. p. 166.
*** Bruce's report of this case, is No 39. p. 6968, voce Inhibition.
