An heritable bond, when it becomes Personal, so as to be the foundation of Diligence.
Thomson v. L Murthill and his Tenants.
Date: 13 December 1622 Case No. No 3.
Found in conformity with Mowat against Richardson's Creditors, No 1. supra.
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In an action pursued by George Thomson, writer, against L. Murthill and his Tenants, in whose hands certain sums were arrested, for making of the saids arrested goods furthcoming, the Lords would not sustain the pursuit, because the arrestment, which was the ground thereof, was raised upon an heritable bond made to the pursuer, for satisfaction of the which heritable sum, before it was made moveable by the party to whom the heritable bond was granted, by raising charges against the party obliged, for causing of him to pay the principal sum.—The Lords found, that no such arrestment could be execute, nor pursuit thereupon sustained, for the principal sum; albeit the pursuer replied, that albeit the bond bore, that the party was obliged to pay annualrent for the sum, yet it is thereby provided, that he should pay the principal sum, whensoever the pursuer should suit the same, and by his arrestment he suits the same; neither is it necessary to him to use any preceding charge; for, as he may poind without a personal charge preceding, and could not be debarred therefrom by that alleged heritable clause of paying annualrent contained in the bond, so he might arrest lawfully, notwithstanding of that clause; which allegeance and answer was repelled by the Lords, and the action was not sustained.
Act. ———.Alt. Haliburton.Clerk, Hay.
Fol. Dic. v. 1. p. 536. Durie, p. 39.*** Haddington reports this case:
1623. December 14.—George Thomson having a bond of L. 1000 made to him by Lyall of Murthill, which was heritable, with provision, that, notwithstanding thereof, it should be lawful to him, at any term, to seek payment of the principal sum; he arrested a debt owing to Murthill, and pursued to make it furthcoming Compeared Mr George Haliburton, who having the like bond of Murthill, whereupon he had charged for payment of the sum, and denounced Murthill, and so had interest to stay Thomson, to be preferred, and alleged, that Thomson's arrestment was not lawful, because he had not made the sum moveable, by charges for payment thereof, before the arrestment; which the Lords found relevant.
Haddington, MS. No 2700.
*** See a case between these parties, No 36. p. 3641. voce Escheat.
