A preferable creditor can do no voluntary deed to prefer one secondary creditor to another; and if he take payment out of one subject, he is bound to assign to postponed creditors.
Robertson v. Blair
Date: 12 June 1730 Case No. No 32.
An assignee, in particular circumstances, found not obliged to assign in prejudice of an arrestment.
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Mrs Dalgliesh, creditor to the Earl of Roseberry, arrested the rents of his estate in the tenants hands, as also a personal bond of his, in the hands of Alves the debtor; thereafter the same rents were arrested by Blair, another creditor, who, by decreet of furthcoming, was preferred secundo loco on that subject; last of all, the common debtor granted assignation of Alves, his bond, for onerous causes to Robertson; the debtor in the bond raised a multiplepoinding, wherein the arrester was preferred to the assignee. Robertson the assignee, whose subject was thus carried away by Mrs Dalgliesh the arrester, demanded an assignation to the arrester's debts and diligence, in order to operate his relief out of the other subject affected thereby, sciz. the rents of the estate in the tenants hands.—Against this demand, Blair, the second arrester of that subject, appeared for his interest; it was pleaded for him, That he could not be prejudged by the common debtor's assigning to Robertson.—It was answered. That the common debtor remained fiar of the bond, just as much after Blair's arrestment as before, the arrestment not affecting the bond; and therefore, his assignation to Robertson was valid and effectual in law, and did infer an obligation upon the catholic creditor, chusing to draw his payment out of a fund that now no longer belonged to his debtor, to assign for a total relief.—Replied for Blair, That the bond being affected by the preferable arrestment, was made litigious; and, therefore, still to be considered as remaining in the person of the common debtor.——The Lords found, That Mrs Dalgliesh was not obliged to assign to the assignee Robertson, in prejudice of Blair's arrestment. See Appendix.
