Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Katharine Prince and Thomas Nicolson, Younger of Trabrown, v. Magnus Prince
Date: 4 December 1705
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Katharine Prince and Thomas Nicolson, younger of Trabrown, her husband, gave in a petition, representing, That Magnus Prince, her cousin, had raised a summons against her, for payment of a blank sum, and thereupon had executed an inhibition; and that, if the same went to the register, it might exceedingly prejudge and impair their credit, seeing the ground thereof was wholly calumnious and unjust; for he had been her curator, and was, by liquid bonds, debtor in 7000 merks, and had, to prevent diligence, retired to the Isle of Sky, and then raised his groundless summons and inhibition: and they were ready to find caution to answer and fulfil his claim in the event; therefore, craved that the registration might be stopped.
The Lords thought a blank summons was no sufficient ground for an inhibition; because, though your true claim were but 1000 merks, yet you might afterwards fill up an hundred thousand, which mars all commerce and bargaining, every body being frighted by so great a sum: and that the same rule ought to hold in arrestments on a blank summons. Though inhibitions may be raised on a charge to enter heir, yet, generally, they should bear a liquid sum; and Stair, Institut. lib. 4, tit. 50, gives several instances wherein inhibitions may be malicious, and therefore stopt by the Lords. And, in a case before the Revolution, betwixt Sir David Murray of Stanhope and the Countess of Kincardine, his mother-in-law, the Lords refused an inhibition; and lately betwixt Sir Gilbert Elliot of Stobbs and Doctor Oswald of Preston.
The Lords thought this present case deserved particular consideration, and ordained it to be seen and answered.
