Elisabeth Gelly, and Others v. The Other Creditors of Monimusk, and their Factor
Date: 22 February 1715 Case No. No 94.
Personal creditors arrested in the bands of tenants. The debtor's factor, notwithstanding, uplifted the rents. Other creditors got the estate sequestrated, and a judicial factor appointed. These last creditors likewise adjudged. The arresters had the preferable right to the sum in the hands of the debtor's factor.
Click here to view a pdf copy of this documet : PDF Copy
Elisabeth Gelly and Others, creditors of Monimusk, having arrested on their personal obligements in the tenant's hands, Alexander Pierie, Monimusk's chamberlain, does nevertheless take up the arrested money out of their hands; and the other creditors having thereafter got the estate sequestrated in the hands of Tames Man, as factor by the Lords, with power to him to uplift rents, &c. and call Pierie to an account; and going on also in adjudications, &c. the arresters raise a furthcoming, both against the tenants, and also call Pierie as he who uplifted the rents affected by them. Man also, the creditors' factor, insists against Pierie and their tenants for the bygone rents, and the sums uplifted by Pierie from them. This having occasioned a competition, the point in question was, whether these arresters have a point of preference to these rents, and to repeat the same from Pierie, though no arrestment was used against him? Or if Man, the other creditors' factor, have a preferable title to the balance in Pierrie's hands, arising from his intromissions with the rents arrested?
It was alleged for Man; That, by his commission from the Lords, he was empowered to uplift, not only the rents from the tenants, but likewise to call Pierie, the common debtors' chamberlain, to account for his intromissions; and that the said arresters had not affected the balance in Pierie's hands; and therefore could not in an action of furthcoming obtain decreet against Pierie.
Answered for the arresters; That the said, balance belonged to them, because it proceeded from Pierie's intromissions with the rents which they had arrested in the tenants' hands; and his intromission being as Chamberlain to the common debtor, was obnoxious to their action of furthcoming in the same way with the tenants; since the arrestment was a nexus realis, affording an action of repetition against any intromitter; nor could a voluntary payment dissolve it; so that these rents could be only uplifted by Pierie cum suo onere, and consequently he liable here, though no new diligence was used against him.
Replied for the other Creditors; That they had raised summons of adjudication before the arrestments were used; now adjudications give right to the mails and duties before arrestments.
Duplied for the Arresters; That they were only seeking preference to bygone rents, and rents of the term current, before any adjudication was complete; for till then no adjudger could compete with an arrester for mails and duties, as was found Lister contra Aiton and Sleich, No 13. p. 2765.; far less is a naked summons of adjudication to be noticed; for whatever that may operate against voluntary deeds of the debtor, yet it has no effect against a lawful creditor using arrestment.
The Lords found, That Pierie the Chamberlain, having intromitted with what was arrested in the tenants' hands, he was liable to the arresters for the same; and therefore preferred the arresters to Man, the subsequent factor, as to the balance in Pierie's hands, in so far as their arrestments gave them interest therein, or extended to.
Act. Hay.Alt. Horn.Clerk, Robertson.
Bruce, No 87. p. 104.
