Blackwood of Pitreavie, v. The Representatives of Robert Allan
Date: 1 November 1750 Case No. No 56.
An inhibition on two bonds against different debtors, which discharged them to put away their land in prejudice of the said bond, sustained. The execution had the same words, but in the register it was written “the said bonds.”
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Robert Allan being creditor to Sir George Hamilton of Tulliallan, and Sir Robert Miln, by their joint bond, and to Sir George Hamilton by his bond, raised inhibition against them, narrating the said debts, but the will of the letters conceived in these terms, “That ye inhibit and discharge the said Sir George Hamilton and Sir Robert Miln, that they noways sell, &c. their lands, &c. nor yet give bond for payment of sums of money, whereby the same may be apprised, adjudged, or evicted from him, or he denuded thereof, by any manner of way, in defraud and prejudice of the said complainer, anent the implement and fulfilling to him of the foresaid bond;” and inhibiting the lieges to contract in defraud and prejudice of the complainer, as said is. The personal execution bore, 'anent the implement of the bond within mentioned,' and that against the lieges, 'as said is.' In the register it was written bonds; and the letters themselves bore, 'because the Lords have seen the said bonds.'
Mr Robert Blackwood of Pitreavie, a posterior creditor, insisted in a competition to reduce this inhibition, as only prohibiting contractions, whereby one bond might be prejudiced, and not applicable to the one more than the other; so that neither was secured.
The Lord Ordinary sustained the objection; but on a representation, showing that this question had been decided, and the same inhibition sustained, when objected to by another creditor, Maclellan against Allan, No 61. p. 4967. he, 27th June 1750, 'in respect of the former judgment upon the same objection to the inhibition in question, repelled the objection.'
Pleaded in a reclaiming bill, The former judgment, though regarding the the same inhibition, yet, not being betwixt the same parties, is not res judicata, but only a decision; and it is plain the debtor is only prohibited to contract to the prejudice of one bond.
Answered, Though there is no res judicata, yet it would be preposterous different judgments should be given concerning the effect of the same diligence, on the same subject; the defect is only the omission of a letter; both bonds are narrated; and the will refers to the said bond, because the Lords have seen the said bonds. It is the register gives warning to posterior contractors, and that bears bonds; and since the judgment, there may have been transactions concerning this inhibition on the faith thereof.
For Mr Blackwood, it is of no import that he wrote bonds in the register, for the diligence is what makes the prohibition; and the record disagreeing therewith is false. The because is no part of the bill, but the ground of debt, being seen, is the warrant of the deliverence upon it.
Observed, There was more than a letter wanting; for Sir Robert Miln was only bound in one bond, and could not be inhibited on both. And the will ought to have been to inhibit them both on the one bond, and Sir George on the other distinctly.
N. B. The former judgment had great influence on the decision.
The Lords adhered.
Act. T. Hay.Alt. W. Grant.
Fol. Dic. v. 3. p. 321. Falconer, v. 2. No 158. p. 182.
