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Scottish Court of Session Decisions >>
Reids and Campbell v Gabriel Napier. [1751] Mor 6993 (3 July 1751)
URL: http://www.bailii.org/scot/cases/ScotCS/1751/Mor1706993-057.html
An inhibition against a husband and wife, the execution of which bore, that the messenger had inhibited them, by delivering them a copy, was sustained.
An inhibition not sustained, which proceeded on a dependence which was never closed by a judicial decree, but ended by a submission and decree arbitral.
After inhibition, a bond was granted by the debtor for an account contracted partly prior and partly posterior to the inhibition. Found that the bond was struck at quoad the latter part of the account, and as to the whole interest and penalty.
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Gabriel Napier writer in Edinburgh, John and Elizabeth Reids, and Campbell of Delnies, had pari passu adjudications on the estate of William Mackay merchant in Inverness, and competed on inhibitions.
Objected by Mr Napier to an inhibition led by John and Elizabeth Reids, That it proceeded on a dependence which was never closed by a decreet; but the matter being submitted, a decreet-arbitral was pronounced; which was the ground of their adjudication.
Objected to Delnies' inhibition, Mr Napier's ground of debt was prior thereto; he having been employed by the common debtor by missive letters to defend him in his law affairs, and having laid out part of the money before the inhibition; and though part was laid out after, yet being in virtue of the former mandate, and he having got bond for the whole on this narrative, it ought to be sustained.
2dly, The inhibition is null; the execution narrates the messenger did inhibit William Mackay and his wife, and did deliver a copy to them personally apprehended; whereas a separate copy ought to have been given to each of them.
Answered, The bond granted for Mr Napier's account is affected by the inhibition; for though he was creditor before for what he had laid out, the debtor was under no special obligation to grant this security; and for what he laid out afterwards he was not then creditor.
2dly, A or an copy delivered to two persons, signifies in propriety of language, that a separate copy was given to each.
The Lords sustained Gabriel Napier's adjudication on the bond granted to him for the sums due to him by account, prior to the inhibition objected; but found him not entitled, in prejudice of the debt secured by the said inhibition, to any part of the interest or penalty contained in the said bond; and repelled the objection to the said inhibition; and found, that the inhibition led by John and Elizabeth Reids, on a dependence, on which no decreet followed, had no effect against the competing debt.
Reporter, Shewalton.Act. Lockhart.Alt. Haldane.Clerk, Justice.
Fol. Dic. v. 3. p. 320. D. Falconer, v. 2. No 215. p. 259.
