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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs Agnes Stewart of Phisgill v The Earl of Galloway and Others. [1770] Hailes 343 (16 February 1770) URL: http://www.bailii.org/scot/cases/ScotCS/1770/Hailes010343-0166.html Cite as: [1770] Hailes 343 |
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[1770] Hailes 343
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INHIBITION. - ARBITRATION.
Subject_3 Effects of a submission and decreet-arbitral upon an inhibition raised upon the dependances of the actions submitted, but in which no notice was taken of the inhibition.
Date: Mrs Agnes Stewart of Phisgill
v.
The Earl of Galloway and Others
16 February 1770 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, V. p. 55; Dict. 7004.]
Monboddo. Our law has the remedy of inhibition, both upon claims liquid and illiquid. When liquid, upon decreet; when illiquid, upon dependance. Here the claim was liquid upon decreet-arbitral. The creditors are not affected by the decreet-arbitral. Mrs Agnes Stewart might have insisted on her original grounds of debt, and restricted herself to the decreet-arbitral. The creditors, if they had no objection to the decreet arbitral, could have no reason for complaining. There is only one decision of the Court to the contrary: June 1751, Gabriel Napier. And one decision does not move me.
Coalston. I incline to be of the opinion given by the Court in Gabriel Napier's case. The law of this country allows arrestment and inhibition on a dependance. The only purpose is to secure what may be found due upon the dependance. In all suspensions, a few excepted, caution is found; but that only relates to what is determined by the Court. If parties transact, the caution flies off. The interlocutor of the Ordinary goes too far in finding the action sopite. The parties may still waken their process, and insist for their preference, to the extent of the decreet-arbitral.
Justice-Clerk. Of the same opinion. Mrs Agnes Stewart cannot go into the multiplepoinding and claim a preference there; but she may go into her own process, and restrict her debt; and upon that restriction take decreet, with security of inhibition.
On the 16th February 1770, The Lords “found the sum awarded by the decreet-arbitral not secured by the inhibition, but without prejudice to waken and insist in the former process, and there to claim preference upon the inhibition, as accords:” varying Lord Auchinleck's interlocutor.
Act. A. Lockhart. Alt. R. M'Queen.
The electronic version of the text was provided by the Scottish Council of Law Reporting
