Virtual Interdiction. - Solemnities in publication. - Effect after publication. - Effect as to moveables or personal execution.
Seaton & Ellies v. Creditors of Acheson
Date: 11 December 1622 Case No. No 7.
Found, that, in the publication of a voluntary interdiction, no other solem nity is necessary than proclamation at the Market Cross.
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In an action of reduction, pursued at the instance of Henry Seaton and Mr Alexander Ellies, burgess of Edinburgh, as persons to whom umquhile George Acheson was interdicted, for reduction of an obligation made by the said umquhile George, after his interdiction foresaid, and publication thereof, upon the reason of the said interdiction published before the granting of the said obligation; the Lords found, that, in the publication thereof, no other execution was necessary, but the public and open proclamation thereof at the Market Cross, and that the said publication needed not to be made, nor intimated to the party maker of the interdiction. Item, The Lords found the reason of reduction founded upon the said interdiction published relevant, notwithstanding that it was alleged by the defenders, viz. by the relict of umquhile George Lockhart, and by Mr Alexander Cuming, her husband, to whom the bond desired to be reduced was granted, That the said interdiction ought not to be sustained, being the party's own voluntary deed done by himself, without trial of the necessity of any preceding lawful cause, which might import the same, and so not authorised by the Judge causa cognita; and, therefore, for the danger of the preparative, it ought not to be allowed, seeing it tended to uphold the fraud of parties, in prejudice of many who might be thereby disappointed of their true debts and contracts, made with the parties so interdicted. Likeas, this interdiction was made by the father-in-law to the sons-in-law, now pursuers, who had married his two daughters, who were his only bairns and heirs, and tended only to keep his gear to themselves, and to prejudge all other true creditors; and, by the tenor of the interdiction, the pursuers were obliged to the persons interdicted, to make count and reckoning to him of their intromission of their whole goods, whenever he required the same; which, in effect, detected the intention of fraud; in fortification whereof, the defender offered to prove, that the obligation contraverted was given for satisfying of a preceding debt, owing by the said George Acheson, in so far as, before the interdiction, the said George was owing the like sum to the defender's husband by his bond. Likeas, she being executrix to her husband, and in his confirmed testament made before his interdiction, that sum and debt being given up, the said George Acheson, after his interdiction, made this bond to the defender, executrix to her husband, confirmed of before, and then received back his prior bond, made to her husband of before, unregistered, and which she offered to prove by the notary, writer of the last bond and witnesses inserted therein; and which allegeance the Lords repelled, because the bond contraverted made no mention that it was given for satisfaction of another prior bond, and they would not admit the same to be proved by witnesses; and they had no respect to the testament, albeit it preceded the interdiction, seeing that testament could not bind Acheson; and, therefore, sustained the reason and interdiction. —See Proof.
Act. Hope.Alt. Nicolson & Aiton.Clerk, Scot.
Fol. Dic. v. 1. p. 478. Durie, p. 38.
