A creditor inhibited his debtor, upon a wadset for a large sum, and thereafter lent her another sum upon a bond with caution. The cautioner paid on distress, and got assignation with warrandice from fact and deed. The cautioner apprised the original debtor's lands. It was found the inhibition did not affect this diligence.
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Sir James Cockburn having inhibited Mr Alexander Spottiswood upon a wadset for a great sum, and thereafter lent 8000 merks to him as principal, and Mortonhall as cautioner, whereof Mortonhall made payment upon distress, and got an assignation to the bond from Sir James, with warrandice from fact and deed, and apprised Mr Spottiswood's lands; Sir James raised reduction of this apprising ex capite inhibitionis.
Alleged for the defender, That Sir James's assignation with warrandice imports a non repugnantia of all rights that then stood in his person. 2do, The sums contained in the bond were paid for the back tack duties of the wadset, and being surrogated in place thereof, must have the like privilege as if Mortonhall had been cautioner for the back tack-duties, and assigned thereto. 3tio, The money being lent by Sir James himself, for his own use and advantage, cannot fall under the prohibition of the inhibition.
Answered for the pursuer, The warrandice is qualified, viz. that Sir James had made no assignation, &c. and so restricted to such facts and deeds. 2do, The bond bears borrowed money, without any relation to the wadset; and Sir James had no advantage by the lending of the money more than if it had been borrowed from another person to pay him; and it is ridiculous to think, that for his back tack-duties (for not-payment whereof he could have declared the back tack null) he would have weakened his security by the inhibition. 3tio, If the inhibition should not take place against the apprising, Sir James would be prejudged, seeing the debtor's estate is very much incumbered; and the comprising, if it had the privilege of back tack-duties, would come in pari passu with the wadset for mails and duties; nor is the cautioner in any better case by the assignation from the cedent, than if he had comprised upon the clause of relief without an assignation.
The Lords found, That the warrandice of the assignation did not extend to the inhibition, which he was not obliged to assign; and that the bond and sums were surrogated in place of the back tack-duties for which they were paid, and had the privilege not to be prejudged by the inhibition. But this Interlocutor not being consonant to decisions in other cases, the Lords did not pronounce the same, but ordained the points to be debated in præsentia.
