Scottish Court of Session Decisions

Subject_1 INHIBITION.

Competition of the Creditors of Cranstoun

1750, June 5, 10.
Case No. No. 14.

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Horsburgh was creditor by a personal bond in L.1824, on which he inhibited in 1728. In August 1728 he granted an heritable bond to Davidson, and in March 1731 he gave an heritable bond of corroboration to Horsburgh with accumulations, and another ground of debt, amounting in whole to L.2546, whereon he was infeft in May 1732, and in 1736 Horsburgh and sundry personal creditors adjudged. In the ranking Davidson was preferred prime loco on his infeftment, and Horsburgh secundo loco, which exhausted the price that nothing remained to the adjudgers. In the scheme of division Horsburgh insisted to draw upon his adjudications supported by the inhibition, but it was objected that the adjudication was not led on the bond that was the ground of the inhibition but on the corroboration, and most of us seemed to think the objection good, and that nothing could entitle him to draw by his inhibition but adjudging on his original bond; though Justice-Clerk thought that since the sum in the original bond was included in the corroboration, that adjudging on the corroboration was sufficient; but then it was objected that a new adjudication would not draw because excluded by the former adjudgers. But we thought, as the adjudgers were excluded by Horsburgh's infeftment they could not compete with his adjudication, and as Horsburgh had already adjudged though only on his corroboration, the Lords thought it needless to make him adjudge over again, and there fore found him entitled to draw out of Davidson's share what he wanted of the sums in his original bond. And Kilkerran mentioned a case where a like judgment was said to have been pronounced in the case of the creditors of Colonel Stuart, I think it was for Mrs Scott of Galla. 16th June Adhered, with this explication, that Horsburgh drew first on his inhibition, next Davidson on his infeftment, and 3dly, Horsburgh on his third infeftment, as in Whitehaugh's case.