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Scottish Court of Session Decisions >>
Rutherford v Stewart. [1745] Mor 6973 (27 June 1745)
URL: http://www.bailii.org/scot/cases/ScotCS/1745/Mor1706973-047.html Cite as:
[1745] Mor 6973
Inhibition found not to affect an adjudication proceeding on a posterior bond of corroboration containing only principal sum and interest due by a former bond.
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After the death of Colonel John Stewart of Stewartfield, John Stewart his son and heir granted bond of corroboration to Anna his sister of her bond of provision, containing only the principal sum and annualrents without accumulation, upon which she led adjudication.
In a ranking of the Creditors of Stewartfield, Rutherford of Bowland having objected to this adjudication, as proceeding upon the bond of corroboration granted posterior to an inhibition at his instance against the granter; the Lords found, “That as the bond of corroboration contained only the principal sum and annualrents, and no accumulations, the inhibition did not strike against the same.” Notwithstanding it was argued, That inhibition strikes against posterior voluntary rights; and that as to the effect of inhibition, every right is considered as voluntary, to grant which there is no preceding special obligation, such as the party can be compelled by process to fulfil; for as there was nothing in the bond of corroboration, but the original debt, against which the inhibition did not strike, and that the purpose of granting it was no other than to save the creditor the expense of a constitution, it was thought rather to be a catching at the words, than following the spirit of the law, to find that the inhibition affected the bond.
For the better understanding the ground on which this decision stands, vide Horsburgh of that ilk, contra Davidson, No 54. p. 6985.
Fol. Dic. v. 3. p. 322. Kilkerran, (Inhibition.) No 5. p. 287.
