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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barbour's Trustees v. Davidsons [1878] ScotLR 15_438_1 (13 March 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0438_1.html Cite as: [1878] ScotLR 15_438_1, [1878] SLR 15_438_1 |
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Page: 438↓
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Where an inhibition is used on the dependence of an action, it is not necessary to present a petition for the purpose of getting it discharged, as the Court will pronounce an order to that effect in causa, and grant a warrant to the Keeper of the Register to mark the discharge and recall upon the record.
In this action inhibitions were used by the pursuers upon the dependence of the summons, and on the case being taken out of Court by a joint minute for the parties, the defenders moved the Lord Ordinary to insert in his interlocutor dismissing the action an order for discharge of the inhibitions, and a warrant to the Keeper of the Register of Inhibitions to mark upon the record the discharge and recall thereof. The Lord Ordinary ( Rutherfurd Clark) was doubtful whether he had power to do so without a petition being presented, having regard to the forms of section 148 of the Titles to Land Consolidation Act of 1868. On inquiry, however, into the practice, and on the authority of three unreported cases— Ward's Trustees v. Tennent, 5th Dec. 1871; Williamson v. Rodger, 24th June 1874; Marschner v. Edinburgh and Leith Joiners Building Company, 25th Feb. 1876—the Lord Ordinary granted the motion, and pronounced the following interlocutor:—
“The Lord Ordinary, in respect of the joint minute, discharges and recals the inhibition recorded 14th June 1877, used upon the dependence of the action; grants warrant to and authorises the Keeper of the Register of Inhibitions to mark upon the record thereof the discharge and recall of said inhibitions, ” & c.
Counsel for Barbour's Trustees— Moody Stuart. Agent— H. R. Macrae, W.S.
Counsel for Davidson— Wallace. Agents— Adam & Sang, W.S.
