Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ARRESTMENT - HEIR CUM BENEFICIO.
Subject_3 The estate of the debtor, a minor, having been sold auctore prætore, the arresters of the price in the hands of the purchasers preferred, upon their diligence, to the other creditors.

William Reid
v.
Stephen Ronaldson

Date: 5 February 1771

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, V. 213; Dictionary, App. I. Arrestment, II.]

Gardenston. An heir, cum beneficio, is proprietor, and, in every respect, heir; only that he has certain personal privileges. When a sale is brought by an apparent heir, the case is different: there he is not proprietor, but trustee.

Pitfour. We naturally have a prejudice in favour of the pari passu preference of creditors; but it cannot take place here. The only method which an heir cum beneficio can follow, if he means to bring in the creditors pari passu, is not to sell till they all agree in a pari passu preference. If he does sell, the price must be affectable by the creditors.

Monboddo. I lay aside the circumstance that Reid was a minor: he is in the common case of an heir. An heir cum beneficio is still heir, though having privilege: if he sell the estate, the price is affectable by his creditors.

On the 5th February 1771, the Lords “found the arresting creditors preferable;” adhering to Lord Kennet's interlocutor.

For Reid,—R. M'Queen. Alt. G. Ogilvie.