Whether Hypothec affected by Sequestration upon the Statutes relative to Bankruptcy.
Creditors of Wright v. William Ker
Date: 21 June 1780 Case No. No 71.
Power of a factor on a sequestrated estate, in disposing of the stocking of a farm, before the issue of the lease.
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Wright was tenant to the Duke of Roxburgh, by a lease which expired at Whitsunday 1781.
Some weeks before Whitsunday 1780, Wright applied for a sequestration of his effects, under the act of Parliament 1772. A factor was appointed, who advertised a roup of the stocking on the 22d of May. Of this procedure, Mr Ker, the Duke of Roxburgh's commissioner, complained by bill of suspension; and
Pleaded, A landlord has a right to insist that the farm shall be sufficiently stocked, and to prevent the stocking already introduced from being carried away. And this right of retention, if competent to him against the tenant, must be equally effectual against the tenant's creditors.
Answered, In security of a year's rent, the landlord has a right of hypothec; ‘but in every other respect, the prestations claimable by him are of the nature of ordinary debts, and must be made effectual in the common course of legal diligence. Hence the creditors of a tenant are intitled to attach the stocking on the farm, if the landlord's hypothec is not thereby infringed; Erskine, b. 2. tit. 6. § 61. 62. And the right accruing to them from a sequestration, is precisely the same as if each individual had followed out a poinding of the effects falling under that diligence.
“The Lords refused the bill.”
Lord Reporter, Hailes.Act. Ilay Campbell.Alt. Maclaurin.Clerk, Mackenzie.
Fol. Dic. v. 3. p. 292. Fac. Col. No 111. p. 208.
