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.
Subject_3 The habile diligence for affecting the price of Heritable Subjects, in the hands of a Trustee for Creditors.

John Ramsay
v.
John Grierson

Date: 25 February 1780

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[Faculty Collection, VIII. 203; Dictionary, 759.]

Covington. The first question here is, Whether there is a debt at all? I do not understand how an arrestment can be laid on a conditional debt, which may not become pure in twenty years. I always understood that in the law of Scotland a conditional debt is not the subject of arrestment. There may be a creditor where there is no debtor, as in an infeftment of annualrent without a personal obligation to pay. Dickson ceased to be debtor in consequence of the discharge granted by his creditors: the only action, if any, must be against his trustee. The trustee is liable to account, but that obligation is not a subject of arrestment: the creditors may come at it another way, by compelling the trustee to dispone the subject and divide the price.

Kaimes. Here a man dispones his subjects, heritable and moveable, to a trustee, for his creditors' behoof. I cannot see how an arrestment by the creditors of the cedent can have any place. The purpose of an arrestment is to put the arrester in the room of the common debtor. The right of the common debtor is merely to account to the creditor: how can any diligence prevent the effect of the trust-right?

Braxfield. The subject of the hearing was, “How far the arrestment affected the heritable estate?” If the interest in question be heritable, it cannot be affected by arrestment; if moveable, it can. The different creditors have not an heritable estate in the subject of the debtor, for then inhibition might be used against each of them, which would embarrass the trust-right and render it inextricable. When an estate is conveyed to a trustee, as in this case, what is the purpose? It is to have the whole sold and the price divided. This only gives a jus crediti to each creditor. The right of each creditor is a personal right against the trustee. It is impossible that an adjudication can carry this; it must be carried by arrestment. This is illustrated by the case of copartners having houses and heritable bonds. Their creditors cannot affect such subjects by adjudication: they must be affected by arrestment. The principle applies to the one case as well as the other.

Kaimes. I misunderstood the fact, and supposed the arrestment to have been laid on by a creditor of Dickson.

Alva. I do not understand an arrestment of a thing that is not in medio. This subject is not in medio. He who wishes to arrest must wait till the subject comes to be in medio by a sale.

Covington. A claim ad factum præstandum is not arrestable: but the claim here is something more,—it is for payment of the money. The personal claim of Hepburn would have gone by a confirmation: why may it not be carried by arrestment? Many debts are arrestable, although not actually due: thus, arrestments may be used of rents currente termino.

On the 25th February 1780, “The Lords sustained the arrestment, and found it effectual to carry the heritable and the moveable subjects.”

Act. R. Corbet, A. Crosbie. Alt. A Ferguson, Ilay Campbell.

Diss. Alva, Westhall; non liquet, Covington, Elliock.

Hearing in presence.