Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Stewart of Torrence v. Walter Stewart of Pardovan
Date: 26 June 1705
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The Lords decided the competition betwixt Stewart of Torrence and Walter Stewart of Pardovan, creditors to Cornwall of Bonnard. Pardovan raises an adjudication of an heritable bond for L.10,600 Scots, granted by Bonnard to George Dundas, and executes the same. Three days after this citation, Torrence arrests the said debt, but Pardovan obtains his decreet of adjudication before Torrence gets his decreet of forthcoming.
Alleged for Torrence,—He ought to be preferred; because the term of payment of the sum arrested not being come at the time he laid it on, it was moveable, and consequently arrestable; and not the subject of adjudication, which is only of heritable rights. And if the creditor in this bond had died before the term of payment, the sum would have belonged to his executors, and not to his heir; as was found, 29th June 1624, Smith against Anderson's Relict. And if he had been denounced to the horn, it would have fallen under his single escheat; and so arrestment was the only habile and competent diligence to affect this subject, which is such a nexus realis as gives a right to the subject, and transmits the property.
Pardovan alleged,—That the bond bearing an obligement to infeft was a feudum fixum, and in its own nature heritable; and so only the proper subject of an adjudication, though the term of payment was not come; as was found, 8th January, 1624, Hendersons against Murray; and 3lst July 1666, Gray against Gordon, observed by Dirleton. And arrestment is not such a nexus realis; but, if a creditor intervene and poind medio tempore, he carries away the right of the arrested goods, and the arrestment evanishes. Yea, if a posterior arrester do more timeous diligence, and the other be in mora, he will thereby come to be postponed, and the posterior arrester preferred.
Answered for Torrence,—That citations upon blank summonses of adjudication can never affect the subject so as to exclude a posterior arrestment. It is true, the Act of Parliament in 1672 declares a citation on an adjudication equivalent to a denunciation on a comprising; but that is only to put the debtor in mala fide to do any voluntary deed to the prejudice of the adjudger, who is in cursu diligentiœ, and nowise to stop legal diligences by arrestment or otherwise. And was so decided 1st February 1684, Anderson against Creighton, marked by President Newton; and siclike, an arrestment before the term of payment was preferred to an apprising before the same term, 2d July 1667, Litster against Alton.
The Lords considered, that, by the 51st Act of Parliament 1661, heritable sums, before infeftment actually taken, were as well capable of arrestment as adjudication; and that it was the interest of creditors to have as many ways as law can allow to affect their debtors' estates: Therefore, they found this heritable bond (though before the term of payment) adjudgeable as well as arrestable; and that Pardovan's inchoate diligence, by citing on his adjudication, being prior to Torrence's arrestment,—and his consummate diligence, by obtaining a decreet of adjudication, being also prior to Torrence's decreet for making forthcoming,—therefore they preferred Pardovan's adjudication to Torrence's arrestment, as being prior tempore, and so potior jure.
Then alleged,—That Torrence's adjudication being within year and day of Pardovan's, must, by the 62d Act 1661, anent debtor and creditor, come inpari passu. Answered,—You are nowise in the case of that act; which only relates to subjects adjudged, whereon infeftment has followed. Replied,—Though that case be stated by way of example, yet the ratio et anima legis is the same, to introduce an equality among all the creditors, that one may not prevent another in diligence who lives at a great distance, and may not hear of his debtor's condition so soon as others do.
The Lords found the clause general, and comprehended all apprisers; and therefore brought them all in pari passu, who had apprised within year and day of the first.
