Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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explained, and the burdens with which, they are charge¬
able, it remains to be confidered, how thele rights may
be affe&ed at the fuit of creditors, by legal diligence.
Diligences are certain forms of law, whereby a creditor
endeavours to make good his payment, either by affeding
the perfon of his debtor, or by fecuring the fubje&s be¬
longing to him from alienation, or by carrying the pro¬
perty of thefe fubje&s to himfelf. They are either real
or perfonal. Real diligence is that which is proper to
heritable or real rights; perfonal, is that by which the
perfon of the debtor may be fecured, or his perfonal ellate
affefted.. Of the firft fort we have two, viz. Inhibition
and Adjudication.
2. Inhibition is a perfonal prohibition, which pafles by
letters under the fignet, prohibiting the party inhibited
to contradt any debt, or do any deed, by which any part
of his lands may be aliened or carried off, in prejudice of
the creditor inhibiting. It mud: be executed againft the
debtor, perfonaily, or at his dwelling houfe, as fummon-
fes, and thereafter publilhed and regidred in the fame
manner with interdidlions, (fee Tit. vii. 30.)
3. Inhibition may proceed, either upon a liquid obli¬
gation, or even on an adHon commenced by a creditor for
making good a claim not yet fudained by the judge;
which lad is called inhibition upon a depending adtion.
The fummons, which conditutes the dependence, mud
be executed againd the debtor before the letters of inhi¬
bition. pafs- the fignet; for no fuit can be faid to depend
againd one, till he be cited in it as a defender : But
the effedt of fuch inhibition is fufpended, till decree
be obtained in the addon againd the debtor; and in
the fame manner, inhibitions on conditional debts have
no effedt, till the condition be purified. Inhibitions are
not granted, without a trial of. the eaufe, when they pro¬
ceed on conditional debts. And though, in other cafes,
•inhibitions now pafs of courfe, the Lords are in ufe to
day, or recal them, either on the debtor’s {hewing caufe
why the diligence {hould not proceed, or even ex officio
where the ground of the diligence is doubtful.
4. Though inhibitions, by their uniform dyle, difable
the debtor from felling his moveable as well as his heri¬
table edate, theireffedt has been long limited to heritage,
from the interruption that fuch an embargo upon move¬
ables mud have given to commerce; fo that debts con*
tradkd after inhibition may be the foundation of dili¬
gence, againd the debtor’s perfon and moveable edate.
An inhibition fecures the inhibiter againd the alienation,
not only of the lands-that belonged to his debtor when
he was inhibited, but of thofe that he.(hall afterwards
acquire ; but no inhibition can extend to fuch after-pur-
chafes as lie in a jurifdidtion where the inhibition was not
regidred ; for it could not have extended to thefe, tho’
they had been made prior to the inhibition.
.5. This diligence only drikes againd the voluntary debts
or deeds of the inhibited perfon : It does not redrain him
from granting neceflary deeds, i. e. fuch as he was o-
bliged to grant anterior to the inhibition, fince he might
have been compelled to grant thefe before the inhibiter
had acquired any right by his diligence. By this rule,
a wadfetter or annualrenter might, after being inhibited,
have effectually renounced his right to the reverfer on
W.
payment, becaufe law could have compelled him to it.;
but to,fecure inhibittrs againft the effed of fuch aliena¬
tions, it is declared by ad of federunt of the court of
Seflion, Feb. 19. 1680, that, after intimation of the inhi¬
bition to the reverfer, no renunciation or grant of redemp¬
tion Ihall be fudained, except upon declarator of re¬
demption brought by him, to which the inhibiter mull be
made a party.
6. An inhibition is a diligence fimply prohibitory, fo
. that the debt, on which it proceeds, continues perfonal
after the diligence ; and confequently, the inhibitor, in a
queftion with anterior creditors whofe debts are notllruck
at by the inhibition, is only preferable from the period at
which his debt is made real by adjudication : And where
debts are contraded on heritable fecurity, though pof-
terior to the inhibition, the inhibiter’s debt, beingperldh.!-
al, cannot be ranked with them; he only draws back
from the creditors ranked the fums contained in his dili¬
gence. The heir of the perfon inhibited is not retrained
from alienation, by theddigence ufedagainft hisanceltor ;
for the prohibition is perfonal, affeding only tue. debtor,
againft whom the diligence is ufed.
7. Inhibitions do not, of themfelycs, make, void the
pofterior debts or deeds of the perfon inhibited; they
onl/ afford a title to the ufer of the diligence to fetthem
afide, if he finds them hurtful to him : And even where
a debt is adually reduced ex capite inhibitionis, fuch rc-
dudion, being founded folely in the inhibiter’s intereft,
is profitable to him alone, and cannot alter the natural
preference of the other creditors.
8. Inhibitions may be reduced, upon legal nullities-,
arifing either from the ground of debt, or the form of
diligence. When payment is made-by the debtor to the
inhibiter, the inhibition is faid to be purged. Any credi¬
tor, whofe debt is ftruck at by the inhibition, may, upon
making payment to the inhibiter, compel him to afligti
the debt and diligence in his favour, that, he may make
good his payment the moreeffedually .againft.die common
debtor.
Tit. 19. Of Comprifings, Adjudications, and Ju¬
dicial* Sal&s..
Heritable rights may be carried from the debtor, to
the creditor, either by the diligence of apprifing (now
adjudication), or by a judicial fale carried on before the
court of Seffion. Apprifing, or comprifing, wasthefen-
tence of a fheriff, or of a meffenger who was. fpecially
conftituted {heriff for that purpofe, by which the heri¬
table rights belonging to the debtor were fold for payment
of the debt due to the apprifer; fo that apprifings were,
by their original conflitution, proper falesof the debtor’s
lands, to any purchafer who offered. If no purchafer.
could be found, the Iheriff was to apprife or tax the va¬
lue of the lands by an inqueft, (whence came the name of
apprifing), and to make over to the creditor lands to the
value of the debt.
2. That creditors may have aecefs to affeift the eftate of
their deceafed debtor, though the heir fliould Hand offfrom
entering, it is made lawful (by 15:40, c. 106.) forany credi¬
tor to charge the heir of his debtor to enter to his anceftor,
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