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Scottish Court of Session Decisions >>
Douglas v Johnston. [1630] Mor 6947 (27 November 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor1706947-017.html Cite as:
[1630] Mor 6947
A prior inhibiter may reduce in tote, a posterior bond and apprising, altho' the subject be sufficient to pay both. He is not obliged to restrict his inhibition to as much of the lands inhibited as may be sufficient to pay his debt.
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Mr Thomas Douglas of Stainypath pursues one Johnston for reduction of a bond made of a sum of money to Johnston by Joseph Lermonth the common debtor, with the comprising deduced thereon of the debtor's lands, because the same was done after a bond made of borrowed money to the pursuer, and inhibition thereon. In which process it was alleged, That the pursuer could not seek reduction in toto of the whole comprising of all the lands, seeing the lands were more worth than would pay both the party's whole debts; and the pursuer ought only to have reduction for so much of the lands as might pay himself, that the defender's right might stand to him for the rest; seeing the defender being but a poor man, and his debt being of a less sum, the pursuer, who was of greater substance, and whose debt was twice as great as his, it were more reasonable that he should be paid by the pursuer of his sums, than that he should be compelled to pay the pursuer his greater debt, which he had no power to do, specially the land being more worth than both their debts. This allegeance was repelled, and the pursuer was found to have good action to reduce the bond, and all that had followed thereupon in toto, ay and while he were paid of his debt, and that he was not holden to pay the defender his debt, albeit the land might satify them both.
Clerk, Hay.
Fol. Dic. v. 1. p. 477. Durie, p. 543.
