not been constituted, conclusions for constituting it may be inserted in the summons, and the constitution and sale proceed in one action.1

CHAPTER VII.

PROCEEDINGS AGAINST THE ESTATE HERITABLE.

"2

SECT. 1.-Inhibition.

INHIBITION is a prohibitory security, by which a species of embargo is laid on the heritable property of a debtor. It is defined as "a personal prohibition, which passes by letters issuing from the signet, prohibiting the party inhibited to contract any debt, or grant any deed, by which any part of his lands may be alienated or carried off to the prejudice of the creditor inhibiting." To make the writ effectual, it must be executed against the debtor, published edictally at the head burgh of the sheriffdom, and recorded in the register of inhibitions within forty days after its publication.3 Inhibition may proceed on the decree of a court, or on a bond or other obligation which clearly establishes a liquid debt. It may be served on the debtor, during the course of an action for constituting the debt, becoming available when the creditor obtains decree of constitution. Inhibition may proceed on a future or contingent debt, where the creditor has good reason to fear from the debtor's circumstances that his debt will not be paid. Such inhibition, after it has issued, may be recalled at the discretion of the court, on cause shown. Inhibition for a debt actually due cannot be recalled.5

Effect. "This diligence strikes against the voluntary debts or deeds of the inhibited, i. e. against all rights granted by him, to which he was not obliged, anterior to the inhibition. Therefore a sale of lands, however onerous, made by the debtor, after publishing the inhibition, or a voluntary security upon land granted by him to a creditor, even after citation upon the diligence, though antecedently to its publication, may be annulled by the inhibiter, suppose

1 D. P. 262, 263.—2 E. ii. 11, 2.-3 Ibid. 4.— Ibid. 3.-5 Ibid. 8. B. C. ii. 144, 146.

that creditor's debt should have been contracted previously to the inhibition." It has to be observed, however, that the inhibition is no transference of the proprietor's rights; it does not affect the validity of any act he may do regarding his estate, it merely gives the inhibiter a remedy against any voluntary alienation or dilapidation, in so far as he may himself be injured by it. It does not affect acts which the debtor has come under a previous obligation to perform.3 If a proprietor has made a valid and obligatory bargain to sell heritable property, before the inhibition, deeds granted in fulfilment of it are not struck at. Inhibition is in so far personal to the individual inhibited, that to affect the heir it must be specially renewed against him.5 As to the rights of inhibiting creditors in competition with others, see above, p. 360.

SECT. 2.-Adjudication.

The legitimate purpose of adjudication is to enable a creditor to attach and convert into money his debtor's heritable estate. It has elsewhere been noticed as a means by which an heir might, in peculiar circumstances, complete his title to his ancestor's estate.* A form termed Adjudication in Implement is likewise used to complete a conveyance of property, which is imperfect from its not giving the holder power to make his title real. The subjects which may be adjudged are, besides landed property and all rights connected with land, all rights bearing a tract of future time, as Annuities, Pensions, Personal bonds excluding executors or containing a destination to a series of heirs, Tacks, Offices descendible to heirs, and along with these, any moveable property which cannot be arrested, as Royal Bank stock, Patent rights, &c.6 Copyright was formerly subject to adjudication, but as it is now declared by statute to be personal property,7 there does not appear to be any legal means of attaching it.

Apprising.-The only means by which heritable property could, at an early period, be attached for debt, was by Apprising. The principle of this process was, that by the verdict of a jury a portion of the land equal in value to the debt should be set aside, and either sold to a third party or made over to the creditor, subject to the right of the debtor to re-demand it on payment of the debt with expenses. This

E. iii. 11, 11.- Ibid. 14.- Ibid. 11.- Livingstone v. Macfar lane, 27th July 1842.-5 B. C. ii. 149.-* See above, p. 103.-+ See above, p. 168.-D. P. 397, et seq. Jur. St. iii. 329.—7 5 & 6 Vict. c. 45, § 25.

system became corrupt. The lands were valued partially, or not at all, the whole estate was made over to the creditor, and as the right of the debtor to redeem his property fell in seven years, large estates were evicted for small sums. These abuses were after partial modification remedied by the act 1672, c. 19, and the system of Adjudication was introduced, by which the property is made over to the creditor, who has to account to the debtor for his intromissions with it.'

When an ordinary adjudication is to be raised, it is first necessary that the debt should be liquid or fully due, and if it be not, the decree of a court must be obtained to make it So. In the summons of adjudication, the debtor is in the first place called on to produce the titles of his property, and concur in getting a portion of it valued and set apart for the creditor, amounting to the debt, &c., and a fifth part more in consideration of the creditor taking land instead of money. The part thus assigned is redeemable by the debtor within five years. If the demand is complied with by the debtor, a Special Adjudication takes place.2 It is however in practice never complied with, for an embarrassed debtor is seldom in a situation to give a good title to any portion of his property, and the shortness of the period for redemption is disadvantageous. The second alternative is, That on the failure of the debtor to agree to the above plan, the lands, &c., mentioned in the summons shall be decreed to be made over to the creditor, liable to be redeemed by the debtor at any time within ten years, on payment of the debt, penalty, and interest. The decree adjudges the lands in conformity, and directs the superior to receive the creditor as his vassal. An Abbreviate, or abridged statement of the contents of the decree is then made, and must within sixty days be recorded in a register kept for the purpose. All the intromissions of the creditor with the estate so adjudged to him, go to the liquidation of the debt.

4

After the expiry of ten years, or as the period is technically called "the Legal," the creditor may get his redeemable security converted into an absolute right of property, by raising an Action of Declarator of Expiry of the Legal against the debtor. In this action the creditor calls on the debtor to exercise his right of redemption, otherwise it will be judicially declared to be at an end; and on the other hand the debtor may call on the creditor to give an account of his intro

1 Jur. St. iii. 324, et seq.—2 1671, c. 19. Jur. St. iii. 326. D. P. 425.— 3 B. C. i. 704. Jur. St. iii. 327.-4 D. P. 426.

missions, and may redeem the lands by paying the balance.1 If no declarator is raised, it would appear that the right of redemption is still open; but if the adjudger have got himself infeft, and has possessed for forty years after the expiry of the legal, he acquires an irredeemable right by Prescription.2* After an adjudication is completed, every other adjudication on which decree is obtained within a year and day of the date of the completion, ranks on a par with it. An adjudication is held completed in questions among adjudgers, when the superior is charged to enter the adjudger as his vassal. (See as to the Ranking of Adjudications above, p. 360.)

SECT. 3.-Proceedings against the Estate of a deceased Debtor.

By entry as heir (see above, p. 101), a successor becomes liable for the whole of his ancestor's debts, though they should exceed the value of the estate left. As an exception, an heir who enters in a Burgh tenement by hasp and staple,† is only liable to the extent of the property. It is questioned whether the same rule applies to a precept of Clare constat. An Heir of Provision is only liable to the extent of the subject destined to him.5 Heirs have relief among each other. (See above, p. 365.)

Charge to Enter.-The heir is entitled to a year and day to consider whether he shall enter on possession of the property, and thereby become answerable for his ancestor's debts. At the end of that period, if he have not made up his mind, any creditor of the deceased may charge him to enter heir, the effect of which is either that he enters, and becomes responsible to the creditors, or by not entering leaves the property in their hands. The same means may be used by the creditors of the heir. The charge is a writ issued from the signet, calling on the heir to enter within forty days, with the alternative, that if he fail, the creditor shall have such action against him as if he had entered. In practice the charge is given within the year, but the heir is protected from farther procedure until its expiry. There are three kinds of charge. Where the charger is a creditor of the ancestor, he procures, in the first place, a general charge;

1 B. C. i. 705. 62. 1672, c. 19. S. ii. 46. See

Jur. St. iii. 333.-2 Ibid.-* See above, p. 59.-3 1661, c. 54 Geo. iii. c. 137, § 11.-+ See above, p. 103.—* S. H. above, p. 102.-5 S. H. S. ii. 48.

the use of this is merely to fix on the heir the character of representative to his ancestor; it is therefore not requisite on the part of a creditor of the heir. Having obtained what is called a Decree of Constitution on this charge, the next step will depend on whether the ancestor was infeft, so that the heir would have required to enter by a special service, or was uninfeft.* In the former case, the creditor executes a special charge applicable to the particular lands, and can then adjudge as if they were vested in the heir. In the latter case, a general special charge is used, followed up in the same manner as the special charge, and enabling the creditor to act as if the heir had procured a general service.1

If the heir appear in the action of constitution and renounce the succession, the adjudication which will follow is said to be contra hæreditatem jacentem, and has this peculiarity, that it may be pursued before the Sheriff.2

Inventory. An heir who wishes to enter on the estate, without becoming liable for the debts of his ancestor beyond its value, does so by entering cum beneficio inventarii-or with the benefit of an inventory. The inventory contains all the heritable subjects left by the ancestor; it is given in on oath, and registered in the county books within year and day of the death of the ancestor, and in the books of Session within forty days after expiry of the year.3

An heir may become liable for all his ancestor's debts by any of those acts which are termed gestio pro hærede-or behaviour as heir. Among these are entering on or taking possession of any part of the estate after the ancestor's death, by uplifting rents, cutting down timber, &c., and other proceedings by which an intention is shown to act the part of proprietor. Another method by which the heir may become liable is called præceptio hæreditatis. It consists in the heir accepting during the ancestor's lifetime part of the estate to which he would have succeeded at his death. He must have been heir at the time of the transaction,—it is not sufficient that he should afterwards turn out to be so. The property must be given him gratuitously. By the præceptio he only becomes liable for the debts of the ancestor incurred before its date.5

4

*See above, p. 100.- E. ii. 12, 11-14. S. H. S. ii. 11, et seq. Jur. St. iii. 362, et seq. D. P. 418.-3 1695, c. 24. S. H. S. ii. 51, et seq.-* E. iii. 8, 82, 83. S. H. S. ii. 56, et seq. Montgomerie v. Boswell, 20th Dec. 1841.5 E. iii. 8, 87, 92. S. H. S. ii. 90, et seq.