Countess-Dowager of Cassilis v. The Earl of Cassilis, and his Tutor
Date: 23 February 1704 Case No. No 74.
Found in conformity with the above.
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The Countess-dowager of Cassilis, by her contract of marriage, being provided to a liferent of L. 400 Sterling per annum, and the rent falling the one half short, she raises a process against the present Earl of Cassilis, and the Earl of Ruglen, his tutor, to implement, warrant, and make up the deficiency; and in regard the tutor was selling land to pay off the debt, she raised and executed an inhibition against them to stop the sale; upon which a bill is given into the Lords by Cassilis and his tutor, representing, that the Lord Kennedy, his father, was publicly infeft in the estate, before his grandfather entered into that contract-matrimonial with the present Countess-dowager, and so could never burden him with her jointure; and yet she had most groundlessly raised that process against him to implement his grandfather's deed, whom he nowise represented, but was in the fee before she was so much as a creditor; and she had thereon served an inhibition of design to stop the sale of the lands for payment of his debts; and therefore craved the registration of the said inhibition might be discharged as wholly groundless and malicious.—The Lords considered, that the stopping of the course of law, by inhibition or other diligences, was like the shutting up the vena porta, and circulation of the blood, and the free passage and administration of justice; yet, in sundry cases, they had examined the grounds of such diligences, and if they find them more founded on humour than reason, they have been in use to refuse the same; and the Lords, in this case, discharged the registration till they considered the causes on which it proceeded; and after trial they found this inhibition abusive and unwarrantable.
Fol. Dic. v. 1. p. 472. Fountainhall, v. 2. p. 226.
