Subject_1 ARRESTMENT. Subject_2 In whose hands Arrestments may be used.
John Grierson v. John Ramsay
Date: 25 February 1780 Case No. No 84.
Arrestment, the habile diligence for affecting the price of heritable subjects in the hands of a trustee for creditors.
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John Dickson, for behoof of his creditors, conveyed his heritable estate to a trustee; and in a deed of accession to this conveyance all his creditors concurred. But the trust-right did not Specify the debts, nor was the trustee infeft.
One of these creditors was Ebenezer Hepburn; to whom, again, Grierson was a creditor.
After the trust conveyance, but before the trustee had proceeded to sell those subjects, Grierson laid an arrestment in his hands; and, when the sale was over, insisted in a process of furthcoming. In this action he was opposed by Ramsay, in the character of trustee for the creditors of Hepburn, who had likewise become bankrupt; Ramsay objecting that the arrestment was inept, first, because it had not been used in the hands of the common debtor himself, but only of his trustee; and, 2dly, because no moveable effects remained at the time in the trustee's possession; and though he was vested in the heritable subjects, yet that these could not be attached by that personal diligence.
The Court had no difficulty in repelling the first objection; but, with respect to the second, they ordered a hearing in presence on this point, ‘How far an arrestmentin the hands of a trustee, to whom an heritable estate is disponed for payment of creditors, is a habile mode of diligence to affect the proportion of the price of said estate corresponding to the debts due to any of the creditors, though the estate was not sold at the time of the arrestment.’
Pleaded for Ramsay against the arresting creditor, No heritable subject is arrestable. Prior to the statute 1661, cap. 32. which declared bonds bearing annualrent moveable, except quoad fiscum et relictam, such bonds could not be arrested; Durie, July 29. 1634, Laird of Lugton contra Creditors of Dishington*. And afterwards a particular enactment by the same statute, cap. 51. was necessary to render personal obligations in heritable bonds, even those on which infeftment had not followed, subject to arrestment. Now, in the present case, there exists in the trustee a complete heritable right, though personally vested; and if a special statute was requisite in the above-mentioned instances, it would certainly be much more necessary to render an heritable right like this a subject of arrestment; for otherwise every personal right to lands would be arrestable, whereas adjudication is undoubtedly the only mode of attaching such subjects.
Answered, The thing arrested is the interest of Hepburn, a creditor under this trust-right; and all the argument on the other side of the question proceeds on the erroneous supposition of that interest being a share pro indiviso in the heritable subjects conveyed. On the contrary, the whole interest of the creditors by the trust-deed resolves into a claim of accounting against the trustee. The case is similar to that of the creditors of a particular partner in a company, who may attach by arrestment their debtor's share in the company-stock, although it becomposed of heritable subjects.
Observed on the Bench, Were the idea of a pro indiviso interest accruing to creditors in the whole estates conveyed to trustees to prevail, it would render the execution of trust-rights inextricable. The effect of the trust-deed now in question was not to give such an interest, but merely to found against the trustee a personal action arising to the creditors from their jus crediti in the estate of their debtor, in order to make him account to them for his intromissions. This jus crediti could not be affected by adjudication; and therefore is the subject of arrestment; for by one or other of these diligences, a creditor is entitled to attach every estate belonging to his debtor. Accordingly, where the estate of a company is vested in a trustee, arrestment will carry to a creditor a share in that estate, whether heritable or moveable, indiscriminately.
The Lords repelled the objections to John Grierson's arrestment, and sustained the same as sufficient to affect the dividend of the proceeds of the heritable subjects which belonged to Dickson; and which proceeds are now in the hands of
* No 35. p. 699.
Robert Maxwell, the trustee, effeiring to the debt due by Dickson to Ebenezer Hepburn.’
Lord Ordinary, Gardenston.For Ramsay, Crosbie, Corbet.For Grierson, Ilay Campbell, Alex. Fergusson.
Fol. Dic. v. 3. p. 41. Fac. Col. No 108. p. 203.
