Scottish Court of Session Decisions

This was a petition at the instance of Alexander Weir, joiner, Sanquhar, for the recal of an inhibition. The petition contained the following statements:—“The petitioner is proprietor of certain heritable subjects in the burgh of Sanquhar, and that the said subjects immediately adjoin certain other heritable subjects belonging in liferent and fee respectively to Mrs Susan Barker or Otto, residing at Newark, near Sanquhar ; Mrs Margaret Crichton Otto or Barker, wife of David Barker, residing at Woodlands, in the parish of Terregles and stewartry of Kirkcudbright; and John Barker, eldest son of the said David Barker and Margaret Crichton Otto or Barker.”

That a dispute having, in the year 1861, arisen between the petitioner and these parties as to the boundary between their respective properties, the boundary line was settled by arbitration to the satisfaction of both parties; and upon the line of boundary so fixed, the petitioner, at the sight of the arbiters, erected a wooden fence, which continued to be the march between the two properties until the month of May 1869, when the said David Barker, as acting for the said Mrs Susan Barker and others, illegally removed the fence erected by the petitioner as aforesaid, and erected another fence, which encroached to a considerable extent upon the petitioner's property. The said David Barker at the same time pulled down a portion of a small building which the petitioner was in the course of erecting on his own property, within his side of the fence which had bounded the two properties for years previously as aforesaid.

That the petitioner then presented a petition to the Sheriff of the county of Dumfries for interdict against the said David Barker encroaching upon the petitioner's property, and to have him ordained to remove the fence illegally erected by him, and to restore the former fence and the petitioner's building to their former condition. The Sheriff-principal, after proof led by both parties of this date, decerned against the said David Barker in terms of the petition, and found him liable to the petitioner in expenses.

“That the said David Barker has appealed the said judgment to your Lordships for review, and an action of declarator has also been raised before your Lordships, at the instance of the said Mrs Susan Barker and others, against the petitioner and Janet Currie, another adjoining proprietor, for the purpose of settling the disputed boundary. To this action the petitioner, as the only defender interested in the question, lodged defences of this date.”

After setting forth the conclusions of the action of declarator, the petition further states:—That, in virtue of a warrant contained in the said summons of declarator, the pursuers used inhibition against the petitioner, and execution thereof being dated the 4th day of June 1870, and recorded along with the summons and execution in the General Register of Inhibitions at Edinburgh the 7th day of June 1870.

“That the conclusions of the said summons of declarator are not of such a nature as to form a competent or legal ground for inhibition, there being no conclusion for payment of a pecuniary claim, or implement of any other obligation, as the ground of action in security of which inhibition could competently be used. That the said inhibition was therefore incompetent and illegal, and, even if competent, was, in the circumstances otherwise of the case, nimious and oppressive. It is humbly submitted, therefore, that the inhibition ought at once to be recalled without caution.”

Answers were lodged to the petition, and, inter alia, the following statements were made:—“The petitioner, who is by trade a joiner, has little or no business, and he is not possessed of any means or property other than the subjects in Sanquhar referred to in the proceedings. The respondents had reason to believe, from circumstances that came to their knowledge, that the petitioner intended to divest himself of this property, which is the only source the respondents had to look to for meeting any expenses which may be awarded to them in the action above mentioned. The respondents therefore deemed it necessary for their protection to use inhibition against the petitioner,

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—availing themselves for that purpose of the provision contained in the 18th section of the Court of Session Act 1868, by which it is made ‘competent to insert in the will of a summons passing the signet a warrant of inhibition which shall have all the like force and effect as letters of inhibition in the form in use at the passing of this Act.’ The form of the warrant is prescribed by the statute, and it is also provided that when warrant of inhibition is contained in the will of a summons passing the signet, ‘such warrant may be executed either at the same time as the summons is served, or at any time thereafter; and it shall not be necessary to publish such warrants, or to intimate letters of inhibition passing the signet to the lieges in any other way than by registration in the General Register of Inhibitions, and in registering it shall be sufficient to register the summons, including the warrant of inhibition, and the execution of such warrant without registering any condescendence' or note of pleas in law which may follow the summons.’ It is not alleged in the petition that there was anything irregular or informal in the warrant or the execution of the inhibition, or in the registration. The respondents deny that there was anything incompetent or illegal in the proceeding itself.”

The petition prays for the recal of this inhibition without caution, and prays also that the respondents be found liable in the expenses of the petition, and the procedure to follow hereon. The petition was presented, without any application to the respondents either to recal or restrict the inhibition, and without any intimation that such a petition was to be presented.

“The respondents are quite willing that the inhibition shall be recalled upon caution for such amount as your Lordships may direct. But they submit that there is no ground for recalling it without caution, and that the petition ought to be refused, with expenses.”

Nevey for petitioner.

Pattison in answer.

The Court held unanimously that such an action of declarator was not of a nature to form a competent or legal ground for inhibition, there being no conclusion for payment of a pecuniary claim or implement of any other obligation as the ground of au action, in security of which inhibition could be competently used; and they granted the prayer of the petition.