Home1860 Edition

INHIBITION

Volume 12 · 879 words · 1860 Edition

a form well known in the law of Scot- Inhibition, by which a debtor is prevented from voluntarily alienating or burdening his estate to the prejudice of the particular creditors who may adopt this remedy. According to its style, the debtor is required to refrain from doing anything by which his estate may be dilapidated; but it has long been decided that it is inoperative against his moveables. It applies, however, not only to all the heritable estate belonging to him at the date of inhibition, but to all the heritage which he may acquire within forty years afterwards. The extinction of the debt to secure which it is used puts an end to the restraint, as the inhibition has reference only to a particular creditor and a particular debt. To be effectual it must be formally served on the debtor, personally, or at his domicile, published against third parties at the head burgh of the county within which the lands are situated, and recorded within forty days afterwards, either in the county record or in the record kept for the whole of Scotland, the former called the particular, and the latter the general, record of inhibitions. A party dealing with a debtor can thus, by searching these records, ascertain whether he be under inhibition, except for the period during the running of these forty days, the inhibition being effectual from its service, though it may not be recorded till the last of the forty days. Even during these forty days, the inhibition may be discovered by enquiries at certain public offices. Any debt constituted by bond, bill, or decree, and any action raised to compel payment, affords a warrant for inhibition, even although the term of payment be not come, or be only contingent. Where, however, the debt is not past due, the court will recall or restrict the inhibition according to circumstances, if it appear to be used oppressively, or on insufficient grounds. When the debt is future, it is readily recalled, on security being found by the debtor. The effect of inhibition is not to give the creditor who employs it any preference over the other creditors at its date, but only against parties who afterwards become creditors; neither does it confer any benefit on those who have not used it for themselves, so that a sale of heritage by an inhibited debtor, or a bond granted by him over his heritage, is only disregarded in a question with the inhibiting creditor, and not with those who did not resort to inhibition, or who only became creditors afterwards. As it only prohibits voluntary sales or securities, it leaves the debtor at liberty to complete whatever he was under a prior legal obligation to perform. A subsequent disposition, therefore, granted in fulfilment of prior minutes of sale, will not be affected by it, nor a subsequent infestation on a prior disposition or bond. Neither does it hinder a creditor, provided he were a creditor prior to the inhibition, from carrying off the debtor's estate in payment of his debt by the act of the law, or by adjudication, as it is called, to the prejudice of the inhibitor. If a debtor die, the inhibition does not extend to, unless it be renewed against, his heir. A similar diligence is known in Scotland, under the names of judicial and voluntary interdict, for the protection of persons of facile disposition and easily imposed on. Such a person, or one described in the action raised for the purpose of laying him under restraint as a person "lavish and prodigal, of weak and facile disposition, easily imposed on, and liable to be concussed to do deeds to his leison or prejudice," may be prevented from executing any such deeds, without the consent of interdictors, by decree of the Court of Session, at the instance of his next of kin or heir-apparent, or even ex propria motu of the judge. Letters of interdict are then raised on the decree, served, published, and recorded, as in the case of inhibitions. The party himself may also grant a voluntary bond of interdict, in which, after expressing his own consciousness of his facility, he may bind himself not to grant any deed without the consent of certain persons named by him, as interdictors. Letters of interdict then follow on this bond, which are served, published, and recorded in the manner already mentioned. When injunction either of these proceedings is adopted, the effect is to restrain the interdicted person from alienating or burdening his lands within the shire where the publication and registration have taken place, without the consent of the interdictors, but not to restrain him from disposing of his moveables, nor doing any thing affecting heritage erroneously and rationally. The object of the appointment of interdictors is only to save him from doing what is prejudicial. The interdict is at an end by the death of the interdictors, and it may be recalled by the sentence of a judge, finding either that it should never have been gone into, or that the occasion for it has passed away. The consent of the interdictors to its recall, as being no longer required, is sufficient. The registers of interdictions are the same as those for inhibitions.