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.
John Buchanan v. Lawrence Crawfurd of Jordanhill
Date: 10 November 1711
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John Buchanan being a creditor to Keiry alias Craigengelt of Gogar, he arrests some rents belonging to him, in the hands of Sir George Mackenzie of Coull, and pursues a forthcoming. In which Lawrence Crawfurd of Jordanhill compears, and craves preference; because he had adjudged these lands, whereof the maills and duties were craved, long before Buchanan's arrestment.
Alleged,—No respect to your adjudication: lmo, Because you are never yet infeft upon it to this hour. 2do, You have been in mora et culpa; in so far as though you be ten years prior to my arrestment in date, yet you have never done any diligence to affect the rents, nor have you raised a process for maills and duties; and therefore the Lords, in a parallel case, 14th February 1623, Saltcoats against Broun, found a posterior arrestment preferable to a prior comprising; where they had been negligent for many years, and neither taken infeftment nor done diligence thereon.
Answered,—That the apprising was a legal assignation, and so needed not intimation, but carried the maills and duties without any more. And though, in Durie's time, arresters were preferred, yet the Lords had since, on better grounds, found the contrary, and preferred the appriser, though neither infeft nor in cursu diligentice; as was decided 23d February 1671, Renton against Fairholm.
Replied,—It is true, that, after an apprising or adjudication, or even the citation in either, the debtor can do no voluntary deed to prejudge that creditor; but his diligence has the effect of an inhibition. But legal diligence by arrestment is more favourable than voluntary dispositions; and therefore used to be preferred, where the appriser or adjudger is in mora. It is acknowledged, where the distance is not great betwixt the adjudication and arrestment, that mora is not regarded; but, if he be supinely negligent, as here, by the space often years, never to interpel the debtor, (though creditors shun a partial possession for fear of being made countable for the whole,) he can never compete with the arrester.
Then Jordanhill alleged,—He had not been silent nor negligent; for he had obtained a sequestration of the rents, and a factor named, a month or two before his arrestment; and, if creditors were allowed to distress tenants after that, then factories invented to save them should be of no use.
Answered,—The sequestration bears an express salvo and reservation of Buchanan's right; and so cannot be obtruded against him.
The Lords, in regard of the adjudger's being so long in mora, preferred the arrester in this special case. Some questioned the justice of this decision; because, if the debtor had assigned thir rents to a lawful creditor, and the same had been duly intimated before another creditor's laying on an arrestment on these rents, the prior intimated assignation would have undoubtedly been preferred to the subsequent arrestment, which can touch and affect nothing but what stood in the debtor's person the time it was laid on. And, if he was denuded ab ante, then the arrestment touches nothing that was the debtor's, but is wholly elusory and ineffectual. Now, an adjudication is a legal assignation, which, like the jus mariti, fully conveys the right, and needs no other intimation to its completion than what the law gives it. And it is on this same ground that a donatar to an escheat, competing with an arrestment laid on after the denunciation and the gift, but before executing the summons of general declarator, the arrestment will be preferred, if the ground of the debt be prior to the horning; because the gift is but of the nature of an assignation, and the declarator is in place of an intimation. So that an arrestment intervening betwixt the gift and the raising the declarator, it comes to be preferred; as was found, 24th February 1637, Filmuir against Gaigy. But the Lords, in this present case, preferred the arrester; because of the adjudger's long cessation and negligence.
