A preferable creditor can do no voluntary deed to prefer one secondary creditor to another; and if he take payment out of one subject, he is bound to assign to postponed creditors.
Johnston v. Suittie
Date: 12 November 1730 Case No. No 33.
Whether, in particular circumstances, a party was bound to assign an inhibition upon payment.
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George Gordon lent 1000 merks upon bond, conjunctly and severally to Kincaid and Suittie. Kincaid got the money, and gave Suittie a bond of relief; upon this bond, after the term of payment, diligence was done by horning and inhibition. Thereafter Kincaid, Suittie, and Johnston, conjunctly and serally, granted bond of corroboration, containing a clause, obliging the other two to relieve Johnston as their cautioner. Johnston after this, and after existence of the inhibition, lent Kincaid, the common debtor, L. 100 Sterling by an heritable bond. Last of all, the said Johnston paid the debt wherein he was cautioner, and took from Gordon, the creditor, assignation to the debt and diligence, and insisted against Suittie for relief. In this process the question occurred, Whether Johnston was bound to assign the inhibition to Suittie, upon payment.—Johnston pleaded, That the inhibition striking against his heritable bond, the law did not oblige him to assign against himself.—Suittie contended, That this rule holds not betwixt cautioners, who, seeking relief of one another, are bound in strict law, from the nature of the contract, to assign.——The Lords found no necessity upon Johnston to assign the inhibition. See Appendix.
