William Henderson Merchant in Edinburgh, v. Alexander Alison Writer to the Signet
Date: 27 March 1707 Case No. No 44.
Found in conformity with Kirkness against Forster, No 35. p. 3641.
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Harry Crawford's share in the African Company being found arrestable at the instance of Alexander Alison his creditor, in order to oblige the directors to transfer the same in favours of the arrester, (vide March 18 1707. Alison contra the Directors of the African Company, voce Society,) William Henderson donatar of Crawford's eseheat compeared for his interest, and claimed to be preferred to Mr Alison.
Alleged for Mr Alison; That by Act 8th, Parliament, 1695, the shares of the capital stock of the African Company are exeemed from confiscation, &c. and only transferable by the Company's assignments, except that they may be affected by the real diligence of the proprietor's creditors: And the donatar of his escheat is not a creditor who has affected the same by real diligence, or got a voluntary transfer in his favours. Besides, these things only by our law are escheatable quæ possunt referri in fiscum, and which of old could be uplifted, and intromitted with by the treasurer's letters of intrommission, under which denomination the Company's stock that was in effect mortified and not upliftable by the partners themselves, cannot fall; and therefore the gift of escheat cannot take place. Nor is it disanalogous to our law to declare this subject arrestable by a lawful creditor, and yet not fall under escheat: As when it is provided in a vassal's charter, that his escheat, when it falls, should belong to himself; and the royal assent to the foresaid act in favours of commerce excluding confiscation, or other transfers of the property, except by the real diligence of the proprietor's creditors, is fully equivalent, 2do, Esto the share were escheatable, yet Mr Alison should be preferred, because he hath fully affected the same and got it adjudged to him upon his real diligence prior to Henderson's declarator of escheat, which was not executed against the directors till after Alison's arrestment, whose decreet of furthcoming is prior to the day of compearance in the donatar's process. Thus an executor creditor was preferred to a donatar of escheat, the confirmation being before the gift; No 52. p. 3654, observed by the Lord Newtoun: And creditors doing diligence after the debtor's rebellion and before declarator of the ascheat, for debts contracted before the rebellion, were preferred to the donatar, February 19, 1667, Glen contra Hume, No 41. p. 3645.; February 24, 1637, Pilmoir contra Gagie, No 39. p. 3644.
