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Scottish Court of Session Decisions >>
Wilson and Logan v Penman. [1696] Mor 7036 (29 January 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Mor1707036-103.html Cite as:
[1696] Mor 7036
Inhibition has Effect only against Voluntary Rights.
Wilson and Logan v. Penman
Date: 29 January 1696 Case No. No 103.
An inhibition was found to affect not only a bond of corroboration of a debt prior to the inhibition, but an adjudication following thereon; which was not restricted to the amount of the original debt, but reduced in tote.
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Mersington reported the competition between William Wilson and Logan against Penman, Trumbull of Curie's relict, and other Creditors of Hagbine. It was objected against one of their adjudications, that it was allenarly led and deduced on a bond of corroboration, which bond being posterior to my inhibition, it was reducible by the same. Answered, In so far as any benefit or advantage accresced to the creditor by the bond of corroboration, such as the accumulating bygone annualrents, and turning them into a principal sum, or the like, he acknowledged all these were struck off by the inhibition; but in so far as the sum precisely coincided and agreed with the bonds corroborated, the diligence by adjudication ought to subsist and stand good. Replied, If the adjudication had been led upon both, then it would have been good, but seeing it mentioned nothing but the last bond of corroboration, sublato fundamento corruit accessorium. Duplied, The bond of corroboration narrates the first bond, which is sufficient to sustain the adjudication. The Lords, by plurality, found the inhibition did not only cut off the bond of corroboration, but also the adjudication led thereon, and found it null in toto. Sundry of the Lords were for restricting the diligence to subsist quoad the sums contained in the first bonds corroborated, as both were equitable and favourable; though in rigore juris the other opinion may hold,
Fol. Dic. v. 1. p. 474. Fountainhall. v. 1. p. 706.
