Inhibition effectual against a bond of corroboration, granted to the heir of the creditor.
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Barclay was a creditor of Henry Alcorn by bond. Jean Crookshank, decerned executrix-dative qua nearest of kin to Barclay, sued James Alcorn, as representing Henry his grand-father, for payment of that debt. Crookshank, however, did not expede a confirmation; but, during the dependence of the action, obtained from James Alcorn a bond of corroboration of the original bond, upon which she obtained decreet, and afterwards led an adjudication.
Prior to this bond of corroboration, Sarah Marshall, another creditor, had executed inhibition against Alcorn.
In the ranking of Alcorn's Creditors, Watson, in the right of Jean Crookshank, produced, as his interest, the adjudication obtained by her; to which Sarah Marshal, and the other Creditors of Alcorn,
Objected; First, That Crookshank not having obtained confirmation, was never vested in the right of the debt. But
The Lords having considered the bond of corroboration as supplying the want of confirmation, and repelled the objection;
Marshall next objected; The above mentioned bond of corroboration, the only title upon which the decreets of constitution and of adjudication proceeded in favour of Jean Crookshank, was posterior to the inhibition in question, and therefore is void quoad the inhibiter; the granting of that deed being an act entirely voluntary, and which could not by any action have been enforced; Stair, b. 4. tit. 20. § 28.; b. 4. tit. 50. § 11.; Bankton, b. 1. tit. 7. § 138.; Erskine, b. 2. tit. 11. § 11.; Fountainhall, 29th January 1696, Wilson and Logan contra Penman, No 103. p. 7036.
Answered; This inhibition did not strike against the original ground of debt, which still subsisted. Neither did the corroboration create any new debt; its only effect was, to preserve against prescription, or to save the expense of expeding a confirmation.
The Lords found the inhibition to strike against the bond of corroboration, as being posterior to it, and serving to create a title to the prejudice of the inhibiting creditor.
They therefore sustained the objection. See Service and Confirmation.
Lord Ordinary, Alva.For the Objectors, Ilay Campbell, Craig, Mat. Ross.Alt. Currie.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 323. Fac. Col. No 45. p. 72.
