Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by DAVID FALCONER, ADVOCATE.

Robert Grant
v.
The Creditors of Sutherland of Rosehaugh

Date: 3 July 1746

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William Sutherland of Rosehaugh disponed part of his estate to Elizabeth and Henrietta, his two daughters, and to the survivor of them, with the burden of 2000 merks Scots of his debts ; and this whole right having accresced to Elizabeth, she made it over to Robert Grant her husband.

A creditor of Rosehaugh's obtained decreet against Robert Grant for 500 merks, which he paid, but took an assignation in the name of a trustee; and being also a creditor himself, he assigned the debt, and his assignee obtained a decreet.

Other creditors having taken decreets till the 2000 merks were more than exhausted, he raised a multiplepoinding; in which the Lord Ordinary, 5th and 19th June, 1746, " Found that the priority of dates of the decreets of constitution could give no preference in such a case; and that therefore the creditors behoved to come in pari passu, and proportionally, according to the extent of their debts.”

Pled in a reclaiming bill, That in this case the creditors had only a personal claim, but no rear right in the fund burdened with payment of their debts: and the question was, whether they had all equal right thereto, abstracting from their diligence ; or, whether there was any way of attaching the subject, so as to prefer one to another. They could not have all equal right; for then, though one had recovered payment, another supervening would draw his proportion from him : and if there were a way of attaching the subject, it could be none else than a decreet; which if it had not that effect, many inconveniencies would arise : other creditors might start up during the course of a multiplepoinding, wherein the creditors who had obtained sentences were called, and these might obtain constitutions, which behoved to be the ground of a new multiplepoinding.

A decreet would give the preference in the case of an heir cum beneficio. And it was observable in the case of the creditors of Crichen against his executor, wherein the creditors were brought in pari passu, that there they had only constitutions, without any decerniture to pay; and it was contended that it was this which gave the preference.

With respect to one of the debts, there was actual payment; and it could not vary the case, that instead of a discharge he had taken an assignation in the name of a trustee.

The Lords adhered to the interlocutor; but remitted to the Ordinary to hear the petitioner on the allegation of payment.

Petit. H. Home.

Vol I. No. 128. page 154.