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Scottish Court of Session Decisions >>
Forbes v Forbes. [1633] Mor 5673 (12 February 1633)
URL: http://www.bailii.org/scot/cases/ScotCS/1633/Mor1405673-050.html Cite as:
[1633] Mor 5673
Acting in one Capacity, whether it infers consent necessary to be given in another Capacity.
Forbes v. Forbes
Date: 12 February 1633 Case No. No 50.
An interdictor having subscribed a bond as cautioner only, not as interdictor, the bond was reduced as wanting his consent.
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A bond being desired to be reduced at the instance of a person interdicted, because it was subscribed by him then interdicted, without consent of the interdictors, there being two, whose consent by the interdiction is declared to be requisite to all deeds done by him, and the bond quarrelled was not consented to by any two, nor by none of the interdictors;—and the defender alleged, That this bond was subscribed by one of the interdictors as cautioner for the person interdicted, which was to be reputed, likeas if he had consented; likeas———, who is another of the interdictors, promised to subscribe the bond; and so the bond must be as valid as if two had consented thereto. The Lords repelled this allegeance, and found the subscribing of the interdictor as cautioner (he not consenting eo nomine as in erdictor) and the promise made by the other to subscribe, he not having subscribed conform to his alleged promise, not sufficient to sustain the bond, which as it was produced, and is now quarrelled, wanted the consent and subscription of two of the pursuer's interdictors. In this process it was thought by the Lords (albeit the process ran not upon this ground, neither was it then questioned or decided) that the creditor contracting after interdiction, without consent of the interdictors, where the person interdicted was known to be rei suæ providus, and was in use to contract in the country, and the cause of interdiction was not tried, nor allowed by the Judge, might reduce that interdiction, and his bond might stand, albeit neither the person interdicted nor his interdictors should assist the pursuit, even as a creditor may reduce an inhibition, which is but the judge's interdiction, as the other is the party's voluntary deed. See Interdiction.
Act. Baird.Alt. ———.Clerk, Gibson.
Fol. Dic. v. 1. p. 379. Durie, p. 670.
