Rents due by a tenant were arrested after his removal from the lands. Found that an annualrenter who had done diligence, by which he might have poinded the tenant before his removal, was preferable to the arrester.
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Wilson being infeft in an annualrent of the lands of, and having obtained a decreet of poinding the ground thereafter, Russell being a creditor, did arrest the mails and duties in the tenants' hands which were due to the master; and pursuing to make arrested goods furthcoming, the tenant being removed off the ground with his whole goods, it was alleged for Wilson, That he ought to be preferred, because his decreet of poinding of the ground was before the arrestment, and being a real diligence, did affect the whole duties payable to the master. It was answered for Russell, That the tenant being removed with the whole goods, such, decreets and letters being only to poind the ground and the goods thereon, could not affect him nor his goods.
The Lords did prefer Wilson the annuitant, and found, he having done prior diligence, whereby he might have poinded the tenant before he removed, albeit he did prejudge himself of all the execution against the tenant's goods, after they were off the ground; yet, quoad the duties payable to the master, for which he might pursue him personali actione, he was not prejudged from the benefit thereof by the tenant's removal; but, the decreet of poinding of the ground, and letters thereof, being a real execution prior to the arrestment, made him preferable to the arrester, as to the duties for which he was liable to the common debtor.
Fol. Dic. v. 1. p. 178. Gosford, MS. No 241. p. 99.
