Robert Russel v. Lady Balincrieff, and the Tenants of Carnock
Date: 29 June 1688 Case No. No 35.
An arrestment, laid on before the common debtor's death, with a decree of furthcoming obtained after his death, preferred to the claim of an executor-creditor, who was confirmed before the decree of furthcoming, but had not eiked the subject in controversy till after.
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In the multiplepoinding betwixt Robert Russel, who had obtained a decreet of furthcoming against the Tenants of Carnock, of some rents arrested in their hands, as belonging to Balincrief jure mariti, and the debtor's relict,
Alleged for the Relict, That she, as executrix-creditrix, ought to be preferred to Russel, who should have confirmed the debt arrested after her husband's death, and her confirmation was before the decreet of furthcoming.
Answered, Arrestment is nexus realis, and cannot be evacuated by the debtor's death; 2do, The subject arrested was not at first confirmed in the principal testament, but only eiked; and the decreet of furthcoming is prior to the confirmation of the eik, and there was no protestation to eik.
The Lords found the decreet of furthcoming to be prior and preferable complete diligence. But if the confirmation of the rents had been anterior to the decreet, they would probably have decerned in favour of the relict; yet an executor not qua creditor, could not compete with one arresting, before the debtor's decease, though his decreet of furthcoming were posterior to the confirmation.
Fol. Dic. v. 1. p. 180. Harcarse, (Arrestment.) No 95. p. 18.
