Walter Stirling, Merchant in Glasgow, v. Patrick Nisbet, Merchant there
Date: 11 August 1757 Case No. No 59.
Inhibition recalled upon a debt not yet payable.
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William Stirling granted bond to Janet his daughter, the wife of Patrick Nisbet, for L. 250, to be paid at the first term after the death of Elizabeth Murdoch.
He afterwards conveyed his whole estate to Walter, his only son, declaring, “That Walter, and the subjects conveyed to him, should be affected with the payment of his just debts, and the provisions made in favour of Janet and the other children.”
Patrick Nisbet, after the death of William Stirling, used inhibition and arrestments against Walter Stirling, for security of this sum, which was not payable till the death of Elisabeth Murdoch, an event which had not then hap pened.
Walter applied to the Court to have the inhibition recalled, and the arrestments loosed without caution; and argued, That this was a debt not yet due; and thesefore that no diligence could be taken out upon it, unless the debtor were vergens ad inopiam; which could not be pretended in this case, as Walter's affairs were in a good situation: That of old, the diligence of inhibition was not allowed to go out till probable evidence was given, that the creditor had cause to apply for it; that, in latter times, the diligence had been allowed to pass in course; but the Court were still in use to discharge it, upon application made, where it appeared to be unnecessary or malicious.
Answered, It was in this case the intention of William, the father, to make the L. 250 a real burden upon the estate; for it is made a burden upon the deed granted to the son, though the clause is not conceived in such a manner as to be effectual for the purpose intended; Patrick Nisbet had therefore a title to insist upon having it made a real burden, agreeable to the father's intention. Walter Stirling has refused to do this voluntarily; and therefore inhibition becomes a proper step, without being obliged to allege that the debtor is vergens ad inopiam.
“The Lords recalled the inhibition, and loosed the arrestments.” See Legacy.
For Walter Stirling, Ferguson.Alt. Miller.Clerk, Gibson.
Fol. Dic. v. 3. p. 320. Fac. Col. No 52. p. 85.
