Whether a summary complaint be competent against the clerk to the bills for expecting a suspension upon insufficient caution.
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Elizabeth Montgomery having, as factrix for her husband Niel M'Vicar, writer in Edinburgh, charged Robert and David Lusks, his tenants, for the tack-duty of £. 437 in money, and other prestations due and resting for some years bygone, and in time coming, &c. for which they were by their tack bound conjunctly and severally, they offered a bill of suspension thereof in common form; to which she made no opposition, being willing it should pass, that she might have a cautioner.
Accordingly the suspension was expede, but without any cautioner farther than that the one became bound for the other; which, how soon Mrs. M'Vicar observed, she gave in a summary complaint against Charles Inglis, depute-clerk to the bills; the advising whereof, the Lords, upon the 12th February, 1745, superseded till the suspension should be discussed.
The suspension being now discussed, the letters found orderly proceeded, and the tenants, after ultimate diligence, unable to pay, the complaint was again renewed.
But the Lords “Found the complaint not competent otherwise than by Ordinary action;” though some of them were of opinion, that it had been no heresy to have sustained the summary complaint.
