BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Milne and Hamilton v Cockburn. [1698] Mor 8158 (27 December 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor1908158-065.html Cite as:
[1698] Mor 8158
Subject_1 LEGAL DILIGENCE. Subject_2 SECTION VIII.
Inhibition.
Milne and Hamilton v. Cockburn
Date: 27 December 1698 Case No. No 65.
A summons had remained blank for a considerable time after inhibition had been raised on the dependence. The inhibition reduced.
Click here to view a pdf copy of this documet : PDF Copy
Sir Robert Milne and Sir George Hamilton raise a reduction against Sir James Cockburn of that Ilk, of an inhibition served by him against Sir Robert in 1690, on a depending process for a great sum of money. The reasons were, 1mo, That this could not be called a depending process, because it sleeped for many years, till a new wakening of it was raised. 2do, The summons produced was not the ground of it, but another summons abstracted, which was only executed for the first diet. 3tio, The summons was wholly blank as to the subsumption and debt, and lately filled up. Answered to the 1st, That a summons not insisted on, but afterwards wakened, is still a depending process, and cannot be reputed dead, no more than a man asleep can be called so. To the 2d, It is denied: And as to the 3d, The constant practice of the writers to the signet has been to raise inhibitions on blank summonses and charges to enter heir; and whatever may be done for the future, such cannot be quarrelled for bygones, quia error communis facit jus, so as to excuse and sustain them till the custom be altered, as has been often found in other cases. The Lords took trial before answer as to the matter, and, by examining witnesses, it appearing to have been blank many years after the inhibition, and, the summonses only of late to have been filled up, they reduced the inhibition as wanting a sufficient warrant; but to advertise the lieges of their hazard, they resolved to make an act of sederunt, that the inhibitions served on dependencies shall ingross the tenor of the summons, else they shall not be sustained.
Fol. Dic. v. 1. p. 541. Fountainhall, v. 2. p. 29.
