Virtual Interdiction. - Solemnities in publication. - Effect after publication. - Effect as to moveables or personal execution.
Robertson v. Gray
Date: 17 February 1681 Case No. No 13.
The Lords, ex proprio motu, appointed two of their number to be interditors to a person who was evidently lavish.
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One Menzies being born and residing in Holland, coming to Scotland to pursue for his father's means, consisting of considerable sums in several person's hands, he made application to Gray of Scheives his kinsman, to whom he assigned the whole, and got from him a back-bond, “to do diligence to recover the sums, and to be accountable to Menzies for the one half, deducting the expenses, but excluding Menzies's assignees, and all others but the heirs of his body.” But Scheives did no diligence, and refused to advance any thing to Menzies, whereupon he gave a second assignation of the same sums to William Robertson, who advanced him several sums for his necessity. He gave also a several assignation to William Robertson of Scheives' back-bond, whereupon William Robertson pursues a reduction of Scheives' assignation upon fraud and circumvention, Menzies being a simple young man, and not understanding the Scots language, was abused by Scheives; but the Lords sustained no circumvention without more pregnant grounds. Robertson then insisted for declaring, that he had the best right to the bonds in question; because, though Scheives' assignation was prior, yet there was no intimation thereon, and the cause of it being for doing diligence, it was causa non secuta, Scheives having done no diligence. —It was answered, That Scheives' back-bond, excluding assignees, could give no title to Robertson as assignee. —It was replied, That an assignation being a procuratory in rem suam, so the assignee, as procurator, might insist for his cedent to recover payment, and to retain his own advancements and expenses actione contraria mandati.——This, the Lords sustained.— But Menzies having recalled any procuratory granted to Robertson, and discharged Sheives of the back-bond, it was alleged that Robertson could not now insist.—It was answered, That the assignation importing a procuratory or mandate, it could not be recalled nisi re integra, and therefore Robertson having advanced sums, and been at great expenses, Menzies could not recall the same. 2do, Menzies hath granted a distinct procuratory, bearing 'to be irrevocable.' The Lords found, That it was inconsistent with a procuratory to be irrevocable; but found, That Robertson had sufficient title to insist for so much of the sums as he had expended upon the account of the mandate; but they found that Robertson's assignation to the sums being first intimated to the debtors, and being insisted on by this process, that the same is preferable to Scheives' prior assignation, whereupon he did no diligence conform to his back-bond; but Robertson declaring that he would make no use of his assignation, but for the sums advanced, and true expenses, providing that Scheives would do the like, and not distress Menzies upon the warrandice of his assignation.
The Lords, finding that Menzies was a facile lavish young man, having assigned first to Scheives with great disadvantage, and next to Robertson, without any back-bond, and last returning again to Scheives, and having now by this sentence liberated him from both, they did ex proprio motu interdict him as a prodigal and lavish person, and did appoint two of their number to be interdictors, and ordained the interdiction to be published and registrated.
