Virtual Interdiction. - Solemnities in publication. - Effect after publication. - Effect as to moveables or personal execution.
Randerston v. M'Intosh & Drum
1685.
December.
— Case No. No 18.
The consent of the interdicters essentially requisite to warrant alienation.
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The Laird of Humbie, who had voluntarily interdicted himself to some friends, having disponed the barony of Crichton with consent of the interdicters, to Sir William Primrose, who was obliged, by the disposition, to pay some preferable creditors, and to pay in the rest to Humbie, without any quality, that it should be disposed of by the appointment of the interdicters, Humbie's personal creditors arrested in Sir William Primrose's hand, and pursued a forthcoming.
Alleged for the defenders; That the price being moveable, it did not fall under the interdiction; and the interdicter's consent not being qualified, all creditors had equal access according to the diligence; and any consent of the interdicters, to prefer any one personal creditor to another, after the disposition, was a non habente potestatem; much less could a consent, after the diligence of arrestment, prefer another creditor, who had done no diligence.
Answered, The design of interdiction being for binding up the prodigal's lands, the interdicters may dispose of lands in satisfaction of just and necessary debts; and their disposition imports a quality, (though not expressed,) that the price should be applied with consent of the interdicters, and no otherwise.
The Lords, in respect the interdicter's consent was not qualified, that the price should not be paid but by their advice, found, That the price was a moveable subject, and liable to the legal diligence of any creditor, though for debt contracted without consent of the interdicters; and that the consent ex post facto to some of the creditors, gave no preference. And it being alleged, That the disposition was consigned for some time, till Sir William Primrose did promise to apply the price with their consent, the Lords found the depositation only probable scripto, and not by the writer and witnesses in the disposition.
