Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

The Cash-keeper
v.
Captain M'reith

Date: 27 January 1685

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In a competition between one who was creditor to a rebel before his rebellion, and had, after it, obtained a decreet of mails and duties against his tenants and the donatar of the liferent escheat, who had raised a general and special declarator after the other's decreet;—The Lords preferred the creditor, in respect of his legal diligence, for the same reason that an arrester would have been preferred; though there seems to be this difference, that an arrestment is nexus realis afficiens rem; whereas the decreet gives no real interest in the mails and duties till they be recovered: and this point of fact was not clear, whether the mails and duties were for terms subsequent to the annual rebellion, after which the right of liferent in the superior's person is considered as a real public right of the lands, and consequently would carry the duties, and be preferred to a posterior apprising, or voluntary right confirmed, multo magis to a personal creditor of the rebel's.

Page 115, No. 434.