Interdiction is reducible where destitute of a rational foundation.
Charles Row, Writer to the Signet, v. Major Monro of Bearcroft
Date: 23 December 1703 Case No. No 40.
A lady entailed her estate, but without an irritancy de non contrahendo. She obliged herself not to alter or contract debt without the consent of certain persons, and this interdiction was regularly published. An heritable bond, granted after this voluntary interdiction, was reduced, though it was not alleged that the lady was either lavish, prodigal, or facile.
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Robert Bruce of Auchinbuy having left three daughters, by his contract of marriage Janet, the eldest, succeeded without division; and she makes a bond of tailzie providing the lands to her two sisters successive, failing heirs-male of her own body; and, to secure the tailzie, she obliged herself not to break the same, nor to contract debt without the consent of the Laird of Kelburn, now Earl of Glasgow, and of Margaret Crawfurd her mother; and, on this tailzie duly registrate, letters of publication of the interdiction were raised, executed, and registrate. Janet coming afterwards to marry Captain Bruce, she, with consent of her husband, and two interdictors, makes a new bond of tailzie in 1695, renewing the former tailzie, with this variation, of assuming her husband into the conjunct-fee and liferent with herself; and on this infeftment follows: A year after this, an heritable bond is granted to Charles Row, writer to the signet, for L. 684 Scots, whereon he is likewise infeft; but the consent of the interdictors was not obtained thereto. Charles pursuing a poinding of the ground, he is encountered with a reduction of his bond, at the instance of Major Monro of Bearcroft, who had married the second sister, the next heir substitute in the tailzie, and the two interdictors, who repeated this reason, that it is null, being granted after publication of the interdiction, and they not consenters to the bond. Answered for Charles Row, They have no interest, but only jus apparentiæ, which is not sufficient to quarrel his debt; and if they insist as donatars to Captain Bruce the husband's escheat, they can never be heard to compete with him, his bond being anterior to the denunciation and rebellion; and as to the tailzie, it cannot be transfused into an interdiction, these being quite separate and distinct securities; neither is the tailzie registrate in the register appointed for tailzies by the act 22d Parliament 1685, and the second tailzie wants that irritant prohibitory clause de non contrahendo debitum; neither use any to be tied up from contracting debt, except in the case of lavishness, prodigality, or facility, which cannot be subsumed in the Lady Auchinbuy's case, who manages both prudently and rationally; and the Lords, in the case Stewart contra Hay, 10th November 1676, No 12. p. 7132. found an inhibition served on such a prohibitory clause could not subsist, unless insufficiency or weakness of the granter were instructed, ergo the same should be observed a pari in interdictions. And the second tailzie is a clear innovation of the first; and so that clause not being repeated therein, the interdiction, if any was, falls to the ground. Replied, The next heir of tailzie has a sufficient interest to quarrel this bond, especially when the interdictors concur with him; and there is no need of subsuming on levity and weakness; for interdictions of consent are as strong as judicial ones; and there cannot be a better reason for an interdiction than to preserve a tailzied estate from being alienate or swallowed up; and it is sufficiently registrate in the terms of the act of Parliament 1685. And the second is no innovation of the first, which is never presumed, except when it bears to be animo novandi, et prioris obligationis tollendæ causa. But here the second relates to all the clauses in the first, which is all one as if they had been specially insert, and a plain confirmation thereof.—The Lords sustained the interdiction as valid, and found the second bond no innovation of the first, and therefore reduced Charles's debt, being contracted after the said interdiction. See Presumption.
Fol. Dic. v. 1. p. 481. Fountainhall, v. 2. p. 205.
