940 / 1042
L
A
w,
6xplained, ¡lOd the
~ur¡¡er,s
wi¡h which th'ey-arc'
charge~
abl~,
il remai,ls ro bc conGdered, how lhde righrs may
be afFdled at rhe fui! of creditors, by legal diligence.
Diligenm are cenain forms of law, whereby a credilor
end~avours
10
make good his paymcnr, eilher by affd ling
fhe perfon of his deblor, or by
f~curing
Ih: fubjeéls be·
Jonging ro him from alienarion, or by carrying lhe pro·
perly
oC"
tbefe fubjeéls
10
bimfelf. Theyare either real
or perfoDa\. Real diligence is lhar which ' is proper 'to–
heritable or real riglll5; perfonal, is thar by which·the
perfoD of lhe debtor may be fecured, or his perfonal tfiare'
affeéled. Of lhe 6rfi fort wehave lWO, "iz, Inbibition
and Adjudication·.
2.
Inhibition is aperfonal prohibition, which pa{[es by
Jmm under lbe 6goel, prohibiling lhe party inhibited
to conlraél any debl, or do any deed, by which any part
ofhis lands may be aliened or carried off, in prejudice of
the creditor iohibiliog.
It
mufi be execuled agaiofi rhe
deblor, perfonally. or at his dwelling boufe, as fummon·
fes, and lhereafter publifhed aod regifired io the fame
manner wilh interdiélions, (fee Ti!. vii. 30')
3, InnibilioD may proceed; either upon a liquid obli·
gation, or even on aD a(lion commenced by a creditor for
making good a c1aim not yet fufiained by the judge;
which la!l is called inhibition upon a depending aélion.
The fummoDs, which confiilutes the depcndeqce, mufi
be executrd againfl the debtor beCore lhe letters
oC
iohi·
bilion pafs ¡he figoel; for no fuit can be Caid to depend
againfi one, till he ' be cited in il as a defender: Buí
Ihe efFeél of fuch inhibition is fufpeoded, lill decree
be obrained io lhe aaion agaiofi the debtor; and in
.Ibe fame manner, inhibitions on condiliooal dtbls have
no efFeél, till lhe condition be ruriíied . lnhibilions are
Dot granted, ""ilhout a l:d
oC
liJe couí., \:.hcn
lh~7
pro·
ceed on condilional debts. And lhough, in other cafes,
inhibilions now paCs of courfe, lhe Lords are in ufe
10
lIay, or recal them, either on lhe deblor's fhewing caofe
why the diligence Ihould nOI proceed, 'or eveo ex
oJdo
where the ground
oC
the diligence js doublful.
., 4. Though jnhibilions, by their uniform !lyle, aifable.
Ihedeblor from felling his moveable as \Vell as his herí·
t~ble
ellale, Iheir effeél has been long limited
10
hcrilage,
fromthe inlerruption thal fuch an embargo upon move·
~bles
mufi have gil"en
10
commerce;
Co
th&l dtbts con·
tra~hd
after inhiuition may be the Coundation of dili·
gence. againfi .Ihe debtor's perfon and moveabl.e
ell~le.
An iohibilion Cecures the inhibíler againll lhe altenauon,
not only of Ihe lands that bdonged tOhis debtor when
he was inhibiled, bUl of lhofe lhat he fhall aClcrwarJs.
acquire; bUI no iohibition can eXlen'd
10
fuch afler.pur.
chafes as liein ajurifdiélion where lhe inhibilion was nOl
re¡;ifired; for jI could not have eXlended tO ¡hefe, tito'
they had becn Olade prior
10
lhe inhibilion,
5. This diligeoce only firik es again!l lhe
voluntarrdc~ls
or deeds
oC
Iheinhibiled perfon:
11
doesnOI refi raJO 11Im
f,om granling nece{[. ry deeds,
i\
e. fuch as he
wa~
n·
bliged
10
grant anterior
10
lhe inhibition, fince he mlght
have btcn (ompelled
10
grant thefe before lhe inhibiter
had acquired any righl uy his diligence. By this rule,
3
wadfemr nr annu.lrenter mighl, a('ter bein? inhibilcd,
l:a'/: crr,élually renouoccd his righ¡ to the remfcr ón
p¡ymcnt,
b~eaufe
law tould hay!' compelled him
10
it~
bUl to
C~cure
inhibílcrs againll the e!Feél of .fueh aliena.
tions, il is declared by aél of ('ederunl of lh. coan of
Sdlion, Feb. 19, 1680, lhal, aCter iOlimalionoflhe inhi.
bition tO the reverfer,
00
renuncialionor grant ofredemp.
lion fhall be fullained, except UpOD declarator of re–
demption' brought by him,
10
which lhe iohibiler mua
~e
made a pany.
. 6.
Ari
irihibítioDis a diligence' fimply prohibilory,
Co
lhal lhe debt, ·on which il proceeds, CODlinues perlonal
afler lhe diligence; and confcqacocly, the iohibilor, in a
quellion viilh anterior creditors who!e deb!sare DOl Uruck
al by ¡be iohibition, is only preferable from the period at
whith his debt is made real by adjudicalion: (\od where
debls are cootraéled on hetilable fecurity, lhough pof–
terior
10
¡he inhibition, the inhibiler's debl, beiDg perlan.
a]., cannOl be ranked Wilh lhem; he only draws back
from the credilors ranked lhe fums contained io his dili·
gence. Tbe heir of the pérfonjnhibited is nOl refirained
from alienalion, by lhe diligence ufed againll his aDCCnOr;
for the prohibition is perronal, afFeéling ooly the debtor
againll whomIhe diligence is ufed.
7. ¡nhibitions do not, of themfelvcs, make void Ihe
pofierior debls or deeds of lbe perTon inhibiled; they
only afford a title tO Ihe ufor of lhe diligence
10
fel tbero
aCide, if he finds lhem hurlful tO hjm : And even where
adebl is aélually reduced
ex capi/( inhibitionh,
fuch re·
duélion, being Counded folely m lb inhibiler', inlerefl,
is profilable
10
him :ílooe, aod canOOl alter lhe natural
prefereote of lhe olher credilors,
'S. Inhibilions may be reduced,. upoo legal
o~lIilies,
arifing eilhú from Ihe ground of debl, or the form of
diligence. . Wbcn paymeot is made by lhe debtor
10
th:
inhibiler, the inbibilion is faid lobe purged. Any credi·
lor, whoCe debl is"llruck al by tbe inhibition, may, upon
making payment"to lhe iDhibiler, compe! him
10
aflign
the debl and diligeote in his favour, lbal he may ntake
good his paymeol lhe' more dfcéluaJ/y againfi Ihe conimOD
deblor,
Tit.
19,
OfComprifing¡, Alijúdication¡, alld'jll.
dicillJ
SaleJ,
HERITABLE
rights may be carried from lhe deblor
10
the creditor, either by lhe diligence
oC
apprifing
(now
adjudicarion) , or by a judicial fale
carried.onbeCore.the
court of Se{[lOn, Apprifing, or compriCing, was lhe[tn.
lence
oC
a fheriff. or of a'me{[enger who was fpecially
COnnilUled fheriff for lhal purpore, by whieh the heri·
!Able rights belonging to lhe deblor were fold forpayment
of Ihe debl due to lhe apprifer; fo Ihat apprifiogs \Vere,
by Iheir original conUilulion, proper Cales of Ihe debtor's
Jands, to any purchafer who olfered. lf no purchaCcr
could be fOllnd, the fhcrifF was
10
apprift or tax the
Vl·
lue of lhe lands by an inquell, (whence carne thename uf
apprifing), . nd tO make over
10
Ihe credilor lands
10
¡he
value ofthc dcbt.
2.
Thal mdilorsm¡y hafe accefs
10
a!Feél lhe enalc of
lhcir deceafed debtor, thOllghIheheir rhoulJ nand offfroOl
eOlerin", it istnldc IJwful(by1540,
C.
106.) for anycredi.
lor
10
clul
ce
the
h~ir
oC
hisdcb:or
10
COlcr
10
hisancc!lor,
ym