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Bowman and Pollock v Earl of Kilmarnock. [1697] Mor 7149 (22 June 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor1707149-025.html Cite as:
[1697] Mor 7149
Interdiction strikes not against onerous or rational Deeds.
Bowman and Pollock v. Earl of Kilmarnock
Date: 22 June 1697 Case No. No 25.
Debts for clothes and such like not affected by interdiction.
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Halcraig reported John Bowman, merchant in Glasgow, and Thomas Pollock, taylor there, against the Earl of Kilmarnock, on the passive titles, for cloaths furnished to his father by the one, and made to him by the other, for several years, conform to their subscribed accounts and bonds. Alleged, The debt was null; and he repeated a reduction of the same ex capite interdictionis, in so far as he had disponed his estate to Mr Robert Stuart, advocate, in trust, for his own use, and obliged himself not to contract debt without his consent obtained, and that of other friends therein named; and which was duly executed, published, and registrated, and they were not consenters to the bonds now pursued on. Answered, This was not a formal interdiction, but rather a commission for managing his estate; but, esto, it were a valid inhibition, yet this can never restrain a man from taking of necessaries, either for aliment or habiliment, the design being to prevent the borrowing of money, as appears by the decision, Laird of Collington against Faw, No 23. p. 7148. and Stair, 10th November 1676, Stuart contra Hay, No 12. p. 7132. Replied, If this be permitted, he may take off superfluous furnishing from many several hands, and the yearly rents ought to go towards defraying those necessary furnishings; and they should have affected the same, and not suffered him to squander and misapply them to other uses. Duplied, The accounts are moderate; and it is not pretended, that any other furnished him during that time; and if he had been restricted to an aliment, there might have been a pretence that they should have betaken themselves thereto; but he was still fiar, the dispotion being only in trust. The first question arose, If they should be obliged to prove their accounts now, post tantum tempus; and the Lords thought not; but they giving their oaths upon the verity of the furnishing, and that the prices set down are ordinary, the Lords sustained the bonds, and repelled the reasons of reduction founded on the interdiction, and found they could not hinder the party interdicted to contract debt for so just and necessary a cause; and such bonds and accounts were neither quarrellable nor null upon the want of the friends, to whom he was interdicted, their subscription and consent. See Proof.
Fol. Dic. v. 1. p. 479. Fountainhall, v. 1. p. 779.
