Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
Robert Watson v. Alexander Macdonald
Date: 5 December 1794 Case No. No 60.
A debt secured by an assignation to a lease of an heritable subject, followed with possession, cannot be carried by arrestment.
Click here to view a pdf copy of this documet : PDF Copy
William Macdonald assigned a lease of an heritable subject to James Macdonald, in security of certain personal debts. The subject was in possession of sub-tenants, from whom the assignee drew the rents. The assignation was intimated to the landlord.
Robert Watson, creditor of James, executed an arrestment in the hands of William Macdonald, and afterwards raised a process of furthcoming against him, in which appearance was made for Alexander Macdonell, trustee on the estate of James, which had been sequestrated after the date of the arrestment.
William Macdonald likewise raised a multiplepoinding.
Alexander Macdonell
Pleaded: The debts were made real, by the assignation, and consequently became the subject of adjudication, not of arrestment. The possession on the lease being equivalent to infeftment, it prevented the application of the exception contained in the act 1661, c. 51. which declares, that money due “by bonds, contracts, or other personal obligements, whereupon no infeftments have followed,” may be attached by arrestment.
The arrester
Answered: It was the object of the act 1661, to make all debts, liable to arrestments, which are not secured by a complete feudal investiture; 20th February 1706, Stewart against the Creditors of Dundas, No 42. p. 705; Fount. 18th January 1695, Frazer against Cleghorn, No 19. p. 689. Now, leases, although by statute, declared good against singular successors, are in other respects mere personal rights.
The Lord Ordinary ‘preferred Robert Watson, the pursuer of the furthcoming, to the sums in the hands of the raiser of the multiplepoinding.’
Upon advising a reclaiming petition, with answers, it was
Observed, in support of the interlocutor, That an assignation in security of a moveable debt, does not make it heritable, as to diligence: In opposition to it, That the arrestment was inept, because the debt was secured by an assignation to a lease clothed with possession, which is a real right, complete sua natura; which can only be carried by adjudication, and which a creditor by arrestment cannot renounce.
The Lords ‘preferred Alexander Macdonell to the funds in medio.’
A reclaiming petition was, by a great majority (13th January 1795) refused. without answeres. (See Heritable and Moveable.)
Lord Ordinary, Ankerville.For Watson, Hagart.Alt. Montgomery.Clerk, Sinclair.
Fol. Dic. v. 3. p. 40. Fac. Col. No 139. p. 316.
*** When an heritable subject is vested in trustees, for payment of legacies, the interest of the legatees may be attached by arrestment; Douglas against Mason, 29th June 1796, Fac. Col. No 226. p. 526. voce Competition.
