[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.