Subject_1 LEGAL DILIGENCE. Subject_2 SECTION VIII.
Inhibition.
Andrew Martin v. George Scot
Date: 4 December 1695 Case No. No 64.
Inhibition upon an obligation to compt and reckon.
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Phesdo reported Andrew Martin writer against Mr George Scot of Gibiestor, late Stewart of Orkney, who being pursued in a reduction ex capite inhibitionis, objected, I cannot take a term, because the bond (which is the ground of the inhibition), is not a liquid obligement for a precise sum, but only to pay 16,000 merks after count and reckoning how much of the same is truly resting; so that count must first precede. Answered, There is a day prefixed betwixt and which he was to have counted, which is long ago elapsed, and so the whole sum must be presumed as resting. The Lords found this could not stop the taking a term in the reduction, but it would have no effect till the count and reckoning were finished, if the defender offered to prove the sum was satisfied in whole or in part, and craved to count and reckon thereanent; and the inhibition would subsist as good for all that should be found due on the event of the count. It occurred to some of the Lords, that the defender (though a singular successor) stating himself now as the contradictor, should enact himself to pay the balance in eventu; but the plurality thought it sufficient damage to him that his right would be reduced, and laid open by the inhibition in quantum the bond subsisted, and was not diminished by the defalcations and instructions of the count, especially in the case of such alternative conditional bonds.
Fol. Dic. v. 1. p. 541. Fountainhall, v. 1. p. 683.
