Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
Mackenzie of Dundonald, v. John Tuach
Date: 22 June 1739 Case No. No 50.
Money consigned for the redemption of a wadset, found not to be arrestable, so as to be made furthcoming for the reverser's, debt.
Click here to view a pdf copy of this documet : PDF Copy
Tuach having right to the reversion of some lands which he had wadset, consigned one moiety of the reversion-money (in terms of the back-bond) in the hands of Bailie Fraser, on the nth March 1738; and, in November thereafter, he executed a declarator of redemption, in which he obtained a decreet before the Lord Ordinary in terms of his libel. Betwixt the date of the consignation, and executing the declarator, Mackenzie of Dundonald, as creditor to Tuach, arrested the consigned money in the Bailie's hands, and infilled in a furthcoming.
It was pleaded for Tuach the reverser:—That he has no property in the money consigned, considering it as a species or fungible, nor any other interest therein than that of a conditional creditor to the consignatar, in case he shall not prevail in his declarator, as the wadsetter is likewise, in the event that by the declarator the order is found lawfully proceeded in; and, therefore, pending the condition no furthcoming can proceed; because, till then, it is not known who is the creditor: and if, as in this case, the order shall be found lawfully proceeded in, so as that the reverser prevails in the declarator, it is certain, that the reverser is not creditor, and that the wadsetter is. But there is another reason why an arrestment cannot affect a sum consigned, cither for the debts of the reverser or wadsetter, to wit, that after the order, and till declarator, it is deemed heritable and of the same nature with the right to be redeemed; so says Stair, lib. 3. tit. 1. Assig. page 392; Spotiswood's Practics, 25th November 1624. Hepburn.*
Argued for the pursuer: The reverser has no legal interest to plead the money does not belong to him; therefore it is jus tertii for him to make any objection, though perhaps it might admit of a different consideration, were the wadsetter in the field laying claim to it.
2do, Nothing seems more firmly established in law, than that the property of” a sum consigned, in order to redemption, remains with the consigner until the wadset be loosed, either by a decreet of declarator, or by the wadsetter's accepting of the same, and renouncing his real right in consequence thereof; upon this footing it is that the hazard of the consignation lies upon him. It is further clear, that there is not so much as a jus quæsitum to the wadsetter by the consignation: It is in the power of the reverser to pass from his order, and uplift the consigned money; In this all our authors are clear; it shall suffice to cite Stair, tit. Wad. § 20; 21st January 1673, Nicol against Laurie†. If then it be so, that the property of a consigned sum remains with the consigner, and that he can exerce all ads of property upon it, by uplifting the same, and disposing thereof at his pleasure, how can the consequence be avoided, that it may be attached by his creditors, and, particularly, that it may be made furthcoming upon an arrestment? 2do, The arrestment was laid on before the process of declarator was raised or executed, while indisputably it was in the reverser's power to pass from his order, and uplift his own money; and, if so, it was not in the power of the common debtor, by choosing thereafter to infill in a declarator, to prejudge his creditor, or disappoint the arrestment once legally established.
Answered: That the money might perish to the consigner, arises from the paction contained in the letter of reversion; therefore it is no just consequence that the property was in the consigner; and it frequently happens, as in the case
* Hepburn against Hay, Spotiswood, p. 16 voce Consignation in this Dictionary.
† Stair, v. 2. p. 152. voce Right in Security.
of mandates not duly followed out, goods perishing will not perish to the owner, but to the mandatar, who, by the obligation arising from law, had equally transferred the hazard upon himself, as the reverter does by paction. And, with regard to the second observation, scil. That the arrestment barred the declarator, it was answered, If the reverser was not purely creditor, but only such sub conditioner the arrestment behoved to follow the nature of the subject arrested, which being ex eventu declared to be the wadsetter's, and not the reverser's, the condition was purified; so as the arrestment could affect nothing, and be no medium impedimentum.
The Lords found, That in this case the arrestment did not affect the consigned money, without prejudice to infill, &c.
