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.
Captain Wightman v. The Creditors of Cornwall of Bonhard
Date: 14 January 1709
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Lord Bowhill reported the competition betwixt Captain Wightman, arrester, and Cornwall of Bonhard's other Creditors, as donatars to his liferent escheat. Bonhard holding his lands of the Duchess of Hamilton, lying within her regality of Borrowstonness; and being year and day at the horn; she gifts it to the Earl of Rutherglen, her son; and he, on a transaction, assigns it to Colonel Erskin, Pardovan, Torrence, and other creditors of Bonhard's.
Wightman being likewise a creditor, he arrests Bonhard's share in the African company, and pursues a forthcoming against the Commissioners; in which the donatar's assignee compears, and craves to be preferred, the gift of his escheat being prior to his arrestment; but he contended, That the capital stock in the African company, being mortified and heritable, could not fall under escheat; especially now, when eventually, by the treaty of Union, it bears annualrent, and so is no more escheatable than a bond or security bearing annualrent: and, by this rule, a wife might seek the third of it jure relicta;; which were very odd.
Answered,—The stock in the African company, being moveable, must certainly fall under escheat; for the Lords have found it both arrestable and confirmable; and, if so, why not escheatable? And the Act 1695, erecting this African company, finds the profits of it affectable by creditors' diligence: Yea, sundry rights, reputed heritable, are notwithstanding escheatable, as rentals, tacks, clauses of relief, though they have profits arising from them: and that the African subscriptions came to bear annualrent, was not by its original constitution, but ex post facto, by an article of the Union.
Replied,—The stock here, being a dead sum, mortified to perpetuity, can never fall under escheat, seeing it was not of its own nature upliftable, till the company, by paction, was dissolved, and an equivalent given by England for it.
The Lords fell upon a distinction, That, as the profits of that company were moveable, and so escheatable, the annualrents of the stock given by the Union, in place of the profits, must be likewise moveable, and fall under escheat; and, therefore, preferred the donatars of the escheat to the annualrents of Bonhard's capital stock, viz. from 1695 to May 1707; and found Wightman, the arrester, had [not] right to the stock, which did not fall under escheat, but only the annual-rents that came in place of the profits by the treaty of Union: and so in a manner divided the controverted subject between them, though not in two precise equal halfs, the annualrent being but for twelve years: so that the stock and principal sum was somewhat better.
