Competition, betwixt Adam Fairholm, &c and Alexander Hamilton, Solicitor at London.
Date: 31 January 1755 Case No. No 26.
In a competition between an arrestment and a prior assignment granted in England, which, according to the form of that country, is not intimated, the arrestment was preferred.
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Adam Fairholm, creditor to Captain Alexander Wilson of London, took a decreet of registration before the Court of Session, February 1751, upon his grounds of debt, and laid an arrestment in the hands of the Earl of Rothes, debtor to Wilson in a considerable sum. In the process of furthcoming upon this arrestment, compearance was made for Alexander Hamilton, solicitor at London, who claimed preference upon an assignment to Lord Rothes's bond, granted by Captain Wilson to him September 1750, for a valuable consideration. He insisted upon two grounds of preference, 1mo, That Captain Wilson, who, residing in England animo remanendi, is not subjected to the jurisdiction of the Court of Session; and, consequently, that Fairholm's arrestment, founded on a null decree, is equally null. 2do, That an arrestment is only a prohibitory diligence, which bars the common debtor from doing any voluntary deed in its prejudice, but cannot have the effect, more than an inhibition, to prevent the compleating of any right or deed granted by the common debtor before the arrestment.
With regard to the first, it was premised, That, of old, jurisdiction was for the most part personal, whence the power of repledging; that while such was the law, the locus originis was almost the only circumstance that founded a jurisdiction; that as commerce came to be diffused, which formed new connections among different nations, and, in places of trade, brought a confluence from all nations, personal jurisdiction lost ground, and at last gave place to territorial jurisdiction. Voet de judiciis, § 91. cites many authorities to prove, that birth singly does not produce a forum competens, excepto solo majestatis crimine.
Captain Wilson, though originally a Scotsman, has been long in England animo remanendi, by which, equally with a native, he is subjected to the law of England. The law of nations admits of change of place, and consequently of subjection. It would be hard for England, in particular, if this were not admitted; and it would be intolerable for a man who changes his country, to be still subjected to laws where he has no residence, and where he has no goods.
But, whatever may be thought in general, change of residence has always been admitted in countries belonging to the same Sovereign. Birth, without residence, gives no jurisdiction to a Sheriff; and the case ought to be the same betwixt the English and Scotch Judges. And, after all, is it not absurd to give a decree against a man, which the Court has no authority to put in execution, considering that neither the person of the defender, nor his effects, are within their territory? Now, if Captain Wilson, cited at the market-cross of Edinburgh, pier and shore of Leith, would not be bound to answer in an ordinary process brought against him before the Court of Session, a decreet of registration cannot be more effectual; and consequently execution upon that decreet is void.
Upon the other point it was urged, That though an assignment in England is only a procuratory in rem suam, as formerly in Scotland, which does not complete the transmission, yet that the assignee has the only equitable title, upon which he, and he only, can oblige the debtor to pay; that an arrestment can be no bar to the payment, because it only prohibits the debtor from paying to the cedent, or to any deriving right from him after the arrestment; but does not prohibit the debtor to pay to any person having right prior to the arrestment.
The assignee was preferred, without distinguishing upon what ground.
If it was upon the latter point, which appears to be well founded, it must overturn an established practice of preferring an arrestment to a prior assignanation not intimated till after the arrestment.
