Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INHIBITION - APPEAL.
Subject_3 After appeal taken from judgments of this Court, and served hinc inde, it is competent to the pursuer to use an Inhibition against the defender as on a dependance.

Patrick Heron of Heron, Esq
v.
Doctor Andrew Heron

Date: 1 March 1774

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, VI. p. 320; Dictionary, 7007.]

Hailes. The order of the House of Lords, 1709, respects not inhibitions; so, by authorising such letters, we offend not against that order. The House of Lords cannot issue a warrant for letters of inhibition. If we cannot, there is a danger and a wrong without remedy.

Gardenston. If the judgment of this Court is affirmed, the inhibition may support that affirmance. If it is altered, the inhibition will not hurt it.

Pitfour. I doubt how far a distinction can be made between an arrestment which is within the order of the House of Lords and an inhibition.

Monboddo. Much has been said of the opulence of the debtor; but that is out of the question: The creditor may use the diligence of the law. I doubt as to the second point, not on account of the case of Carlisle, which is nothing to the purpose. The scruple as to the order of the House of Peers occurred in 1712, as appears from Fountainhall. Indeed the words of that order are strong.

Alva. Here is nothing more than taking a step in order to preserve the subject in controversy; just like stopping a person in meditatione fugæ.

Auchinleck. How can that be called execution which may be used on the very first day of the dependance?

Justice-Clerk. I cannot go upon the consideration of the impropriety of the inhibition. I do not think that the inhibition can be called a diligence in execution, or that it is contrary to the order of the House of Lords. It seems odd, that a man may secure his debtor's estate in initio litis, and not after judgment given. The only difficulty is as to the dependance: How can the Court hold that there is a dependance, after that the cause has been removed by both parties into the House of Lords?

Coalston. Upon the supposition of a dependance, the Court cannot interpose to recal the inhibition: it may be recalled where the libel ex facie is calumnious, or when it is nimious,—the debt being fully secured. The only difficulty is, that the inhibition has been raised after an appeal served. It is not perfectly clear that an appeal puts a total end to the dependance in this Court. It is most inexpedient to stop the diligence of inhibition. We are not hampered by the order of the House of Lords.

On the 1st March 1774, “The Lords found, that, after appeal taken in the cause, within mentioned, by both parties, hinc inde, and served, there was no dependance in this Court upon which inhibition could proceed; therefore recalled the inhibition complained of.”

For the petitioners, A. Crosbie.

Alt. A. Lockhart.

Diss. Auchinleck, Coalston, Kennet, Hailes.

1774. July 2.—Coalston. The interlocutor stands upon this, that there was no dependance in this Court: that is no good ratio decidendi. There must be a dependance, but it matters not in what court. It is acknowledged that this Court authorises inhibitions in causes before inferior courts; but it is said this is because such quesions may be agitated in this Court. This seems an insufficient reason: here, however, it is unluckily used, for the cause must have come from the House of Lords, and has come into this Court. The order of the House of Lords must not be judaically interpreted. It applies not to this cause.

President. I can find no argument to support this interlocutor. The coming back of the cause shows, that the order of the House of Lords applies not.

On the 2d July 1774, “The Lords repelled the objection, and found the inhibition valid and subsisting;” altering their interlocutor 1st March 1774.

For Dr Heron, A. Lockhart. Alt. P. Murray.