Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

A Son of the Laird of Innerwick's
v.
John Shaw

Date: 5 July 1625

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In an action of reduction of a bond and obligation of some money, made by a son of the L. of Innerwick's, pursued at the instance of these to whom he was interdicted, against John Shaw, burgess of Edinburgh, to whom the bond was given, upon a reason of the said debtor's interdiction, published before the granting of the obligation,—the Lords found, that an interdiction, voluntarily made by the person interdicted, without any necessity of a cause impulsive, or cognition and trial of any judge preceding the same, ought not so to exeem the interdicted person, and liberate him at the hands of his creditors, but that his moveable goods may be poinded, and distrained for his debt: but this was done in respect of the tenor and express clause contained in this interdiction libelled, which had that end designed therein, viz. that he had interdicted himself to these friends, to the effect that he should not do any deed whereby his lands and heritages might be evicted from him, and he prejudged therein; by the which clause, his moveables, if any he had, was not exeemed, but were liable to his creditors. In this process, also, the Lords found that such interdictions ought not to exeem the person interdicted, from the execution of horning and caption, personally to be executed by his creditors against him; for, this being his own deed, he could not, by his own deed, done in his favours and by himself, exeem himself from caption; for that is to bind himself to himself, whereby the creditor cannot be hurt.

Act. Nicolson and Stuart. Alt. Hope. Scot, Clerk.

Vid. 11th December 1622, H. Seaton; 20th December 1622, L. Glenurchie; 4th December 1623, Hay against Geichan; 29th July 1624, L. Collington.

Page 175.