In a competition betwixt an adjudger and arrester, the subject being an heritable bond, the citation on the adjudication being prior to the arrestment, and the decree of adjudication also prior to that of the furthcoming, the adjudger was preferred.
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In the competition of the creditors of George Dundas, Pardovan produces an adjudication of a bond granted by Bonhard to George Dundas, his heirs and executors, containing a precept of sasine, and craves to be preferred to Torrence, who produced an arrestment in Bonhard's hands, and a decreet of furthcoming, upon this ground, because his citation in, the adjudication, was before the arrestment, and his decreet before the furthcoming.
It was alleged for Torrence; That the sum was moveable, and an adjudication was no competent nor habile diligence, because no infeftment had followed upon the bond, neither was the first term's payment of annualrent, nor the term of payment of the principal sum past, when Pardovan raised and executed his adjudication; and sums heritable by destination were always reckoned moveable till the first term's payment of the annualrent.
It was answered; 1mo, The question is not here betwixt an heir and an executor, but betwixt competing creditors. 2do, This bond, containing a precept of sasine, and bearing annualrent from a term preceding the citation, was heritable from the beginning; and the 32d act, Parliament 1661, declares such bonds to be heritable.
It was replied; The case is to be considered in the same way as if the question were betwixt the heir and the executor. Sums moveable fall to the executor, and cannot be adjudged, because they are moveable. 2do, As to the act of Parliament 1661, it does declare such bonds to be heritable; but that is only to distinguish them from bonds bearing annualrent, which by that act are declared moveable, even after the term of payment, which antiently were heritable, yet were esteemed moveable before the term of payment: as to which, there is nothing enacted by that law, and therefore it has been frequently decided, that bonds heritable after the term of payment, are moveable before; as penult. of June 1624, Smith contra Anderson's relict, voce Heritable and Moveable.
It was duplied; Decisions in this, case favour Pardovan, as well as the positive statute, as Bairns of Colonel Henderson against Murray, voce Heritable and Moveable; where the Colonel having taken a bond bearing annualrent from Whitsunday, payable at Martinmas, and he dying in August, the bond was found heritable; the like the last of July 1666, Gray contra Gordon, Ibidem, et voce Escheat, where a bond bearing the term of payment to be diverse years after granting the same, and annualrent to be paid yearly and termly in the interim, was found to be heritable, though the creditor deceased before the term of payment; Anderson contra Anderson, voce Heritable and Moveable. And as to the practique cited by Torrence, the case differs from the other practiques in matter of fact, which is the foundation of the difference of the decision; for there the bond bore only annualrent from the term of payment, and so, at the creditor's death, which was before the term, it bore no annualrent; whereas in this case, and the other practiques cited, though the defunct died before the term, yet the annualrent was current from the date of the bonds, which, by the conception thereof, and the design of the creditor, were heritable.
‘The Lords found the sum heritable and adjudgeable.’
It was further alleged for Torrence; He was still preferable, because such bonds, though heritable, are also arrestable by the 51st act, Parl. 1661; and his arrestment being before Pardovan's adjudication, he was preferable.
It was answered; That the citation in Pardovan's adjudication is prior to the arrestment, and his adjudication before the furthcoming; so that his diligence did first commence, and was first complete.
It was replied; A citation in an adjudication is a good prohibitory diligence to disable the debtor from voluntary deeds, but does no ways affect the subject; whereas an arrrestment is nexus realis, which really affects the subject arrested, and transfers the property. Though a furthcoming be necessary to compleat the right, yet the summons of furthcoming libels the arrestment to affect the subject, and transmit the right, and therefore concludes that the same should be made furthcoming. It is true the right acquired by the diligence of arrestment is easily lost, if the same diligence be not duly prosecute, so as other creditors intervene; but here there is no negligence; for albeit the competing adjudication be prior, that is because adjudications abide not the course of the roll, not require probation; but otherwise all possible diligence was adhibit in obtaining this furthcoming.
It was duplied; That the property is not conveyed by an arrestment without a furthcoming; neither will an arrestment hinder poinding; and in this case Pardovan having used a habile diligence, and cited before the arrestment, and also obtained the first decreet, he is undoubtedly preferable.
‘The Lords preferred the adjudger.’
It was further alleged for Torrence; Still he is preferable, because, for his further security, he also obtained the first adjudication; and that though Pardovan adjudged within year and day, because the subject adjudged was a liquid sum of money, which is naturally divisible, and can be proportioned to the debt adjudged for; and the act 1661 bringing in adjudications pari passu, doth only concern apprisings or adjudications of real rights whereupon infeftment followed, as appears by the act itself bearing, That all adjudications within year and day of the first effectual comprising are pari passu; and for explaining what is meant by an effectual comprising, it is declared, That such comprisings as are preferable to all others, in respect of the first real right and infeftment thereon, or the first exact diligence for obtaining the same, are and shall be holden the first effectual comprisings. And seeing in this case there neither was nor could be any infeftment for denuding the creditor, who stood not infeft, the act takes no place, but the adjudications are preferable according to their dates.
It was answered; The reason expressed in the act is general, relating to all creditors doing diligence, and considers the prejudice of creditors who are at a great distance, whereby the debtor's estate is comprised, which word estate comprehends all comprisable subjects; and then considers the prejudice of creditors, who have nothing but legal reversion; and for remeid thereof, statutes that all comprisings within year and day of the first effectual comprising shall come in pari passu; and what follows for clearing an effectual comprising, is indeed to be understood only of comprising of lands or real rights, because in that case an apprising, without an infeftment or charge, is but personal, and a posterior apprising with an infeftment is preferable; but an apprising of a personal right is complete and effectual from the date.
‘The Lords found that the adjudgers ought to come in pari passu.’ See No 14. p. 140., and No 41. p. 703.
