Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 What Subjects Arrestable.

Creditors of Mr James Hog, Lecturer in the Tron-Church,
v.
The Town of Edinburgh, and the said James Hog

1743. February.
Case No. No 54.

Whether the annualrents of a sum mortified for the behoof of a lecturer in a church, are arrestable for his debts?

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James Hog being received lecturer in the said church, was thereby entitled to the annualrents of L. 1000 Sterling yearly, which had been mortified for that purpose; his creditors arrested the same in the hands of the Magistrates.

In the furthcoming, Hog appeared, and pleaded, That the subject arrested being a fund appropriated and set aside for a certain purpose, could not, even by legal diligence, be diverted to any other purposes, so as to disappoint the intention of the mortification. Indeed, where an obligation is granted to a man entirely for his own behoof, and where the debtor has no interest, other than to pay securely, such a subject is attachable by all sort of legal diligence; but the case is quite different, where an obligation is granted ad certum effectum, and where the granter has an interest to fee the money applied to the purposes for which the same is destined. In that case, as the money cannot be applied to other purposes, it cannot be affected with legal diligence, e. g. A servant's fee is not arrestable, because it is appropriated to the maintenance and support of the servant, without which he would be incapable to perform his work; the master has a direct interest to apply the money this way, that he may have the benefit of the servant's work; and the servant has an interest, because he is bound to perform his work, which he cannot possibly do if he has not his wages: the application of which to the present question is obvious. It is true, this doctrine admits of a limitation; if the subject destinated and set aside be more than sufficient to answer the purposes, the superplus may be attachable by creditors, because the mortifier or debtor has no further interest than that the work be performed: And therefore, if it shall be thought that L. 50 is more than a sufficient yearly aliment to Hog, he is willing the same be restricted to what lesser sum shall be judged may suffice for that purpose. See 18th March 1707, Mollison supplicant, (Forbes, p. 155. voce Personal and Transmissible.)—9th July 1668, Boag, (Stair, v. 1. p. 550. voce Personal and Transmissible.)

The Lords remitted this cause to an Ordinary; but what was the issue of it, does not appear from any papers in the collector's hands.

C. Home, No 233. p. 380.