Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

John Watson of Sauchton
v.
Thomson of Corsehill, and John Tod, Merchant in Glasgow

Date: 16 February 1715

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Robert Hamilton, younger of Wishaw, having adjudged the lands of Monkland, he and Monkland at length entered into a minute, whereby Wishaw is obliged to dispone the adjudication to Monkland, and he to pay a certain sum therefore at diverse terms, declaring always that this is only a corroborative security, containing an irritancy in case of not punctual payment at the respective terms, viz. That the minute should be void. Monkland accordingly made some partial payments, but did not keep his days : and in the mean time Gabriel Thomson and John Tod, Wishaw's creditors, laid an arrestment in Monkland's hands, and obtained decreets of furthcoming, which Monkland suspended upon double poinding : and thereafter Watson of Sauchton, another creditor of Wishaw, adjudges Monkland's estate, as belonging to his debtor by virtue of the foresaid adjudication, and now insists in a process of mails and duties against Monkland and his tenants. In which process Thomson and Tod compearing, and craving preference, because of the priority of their diligence ;

It was alleged for the adjudger,—1mo, That an adjudication being an heritable subject, is only transmissible by such diligence as is capable to affect heritage, and so not by an arrestment. 2do, No man can have right to the money due by Monkland, except he who is capable to dispone Wishaw's adjudication;—seeing Monkland is bound to pay upon Wishaw's disponing. Now, an arrester having no title to Wishaw's adjudication, can never dispone it; and therefore he can have no claim to the said money, but Wishaw's heirs, or Sauchton, who hath adjudged. 3tio, The above-mentioned minute was only a corroboration of the adjudication ; besides, that Monkland not having paid at the terms prefixed, all the effect of the agreement is, that he must have allowance of his partial payments out of the sums in the adjudication.

Answered for the arresters to the first and second,—That there being no infeftment on the adjudication, nor the same expired, whereby it became a right of property, the sum for which it was led was still arrestable; for so it is in the case of heritable bonds whereon no infeftment hath followed. To the third answered,—That such irritant clauses are never strictly interpreted, but still purgeable by payment, cum omni causa. And as to the minute's being corroborative, answered,—That a party's retaining right till he be paid, does not alter the nature of the sums to be paid; but the nature of the debt is innovated, though the creditor has an objection competent to him against disponing till payment, which makes not the new stipulated sum to be an heritable debt, the minute being a new bargain. Nor is it unknown in law, that an heritable right may be a security for a subject of its own nature moveable, as in the case of bygone annual-rents of heritable sums ; as was found, 18th February, 1676, Wauch contra Dr. Jamison. Lastly, the sum agreed on being in the minute declared payable to Wishaw, his heirs, executors, or assignees, this plainly shows Wishaw's design, that it should be moveable. And there is here no difference betwixt successors and executors: for, as whatever is an heritable debt in the person of the defunct, and would belong as such to his heirs, may be affected with all heritable diligence ; so what is moveable in the debtor's person, so as it would belong to his executors, may be affected with moveable diligence.

Replied for the adjudger, 1mo,—That an adjudication does not fall under the comprehension of the term bond, or obligation ; and it is only money due by bonds that the Act of Parliament declares to be either adjudgeable or arrestable : besides, the subject of an adjudication is not properly money, but lands, which cannot be arrested. 2do, That it is not here pled, that the minute should be so void, as Monkland should have no allowance of what he paid, which were rigorous ; but when he gets allowance, nihil illi deest. And as to a sum's being moveable, though heritably secured,—replied, that bygone annual-rents of an heritable sum are moveable, because they are held as uplifted, being already payable : but it is otherwise in the present case, where Monkland's obligation to Wishaw was expressly corroborative; and now, in the event, the adjudication is the only subsisting security for the money. And as to the difference betwixt successors and creditors,—replied, that whatever a man's destination may be with respect to his own representatives, or however constructed, yet the interest of creditors strangers does not fall under such interpretation. Nor is it a questio voluntatis with them; since they lead their diligence upon the faith of what is acted and complete, and are not much concerned with what may be in the intention of their debtor.

The Lords preferred the adjudger to the arresters.

Act. Arch. Hamilton. Alt. Boswel. Roberton, Clerk.

Vol. I. page 90.