Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
Cleland's Creditors Competing
Date: 5 June 1705 Case No. No 75.
The assignee of the fisk found to have right to the privileges of the fisk.
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In the competition betwixt William Hamilton of Wishaw, and the other creditors of Cleland of that ilk, Wishaw craved preference to them all for L. 721 Sterling, on this ground, That Cleland being collector of the cess and supply for the shire of Lanark in 1701, and Wishaw his cautioner, he fell in arrear to the general receiver, and commissaries of the army, in that sum, so that Wishaw being forced to pay it, he has got an assignation thereto; and the public being a privileged creditor, he, as come in their place, has the same privilege; wherein he endeavoured to clear the Lords on these two points, 1mo, That the fisk had a real privilege on the lands and estates of their collectors, preferable to their other creditors; 2do, That this was not so personal, but it transmitted to their assignees. As to the first, The civil law was full on it, preferring causam fisci et privilegium primipilare, both as being a public concern, and to have the government and army effectually supported; and our law has made not only the Commissioners of Supply, and the collectors, liable for the public cess imposed by acts of Convention or Parliament; but even it becomes a debitum fundi on every heritor's land; and so by the acts in 1678 and 1681, and subsequent acts of supply, it affects singular successors, and is liable to quartering and all other diligence, and so is preferable to any other private debts. And as to the 2d, Where cess is paid by the collector's cautioner, and is assigned, he has the same access and relief that the public had. See 28th July 1665, Rae, voce Public Burden; 10th June 1631, Peebles, voce Privileged Debt; ult. January 1665, Anderson, No 39. p. 6235; and lately, Houston, the King's collector, against Creditors of Montgomery, see Privileged Debt. Answered, This privilege is only quoad the manner of execution, but not as to co-creditors. Other civil debts have the executorials of horning, poinding, and arrestment for affecting the debtor's means; but for better ingathering of the public revenues, law has superadded the summary diligence of quartering and military execution to distress their lands or moveables; so that the soldiers may quarter ay till they pay; but if the public be once satisfied, this personal privilege ceases, and nowise transmits to their assignees, no more than the King's privileges can be claimed by donatars to escheats or forfeitures. The Lords superseded to determine what preference the cess had beyond other debts; but thought, whatever the privileges were, the assignee had them in the same manner that the cedent and the public, his author, had before their denuding.
Fol. Dic. v. 2. p. 78. Fountainhall, v. 2. p. 282.
