Scottish Court of Session Decisions

Lord Curriehill, who after narrating the above circumstances, said—This is a note of suspension, passed in terms of section 5 of 1 and 2 Vict. c. 86. It is proper to keep in view that the effect of passing the note was not to repone the suspenders. It is quite settled by decisions that the passing of such a note has not the effect of extinguishing the decree and charge, but simply of sisting them until the note is refused or decree of suspension is pronounced. It has also been settled that the record should be made up in the suspension process, as was done here. There are various reasons of suspension stated, but it is not necessary to deal with all of them. The only one which requires to be dealt with is, I think, intended to be stated in the 4th plea in law. It was stated to us in argument that as the trustees had not realised the property of the estate, and as they therefore had no money with which to pay the common debtor his share of the residue, the arrestment was therefore an inept diligence. I cannot sustain the plea stated in that broad way. Suppose there had been sufficient moveable estate out of which the share could have been paid, I think the arrestment would have been quite valid. This was settled in the cases of Grierson v. Ramsay, 25th February 1780 (M. 159, and Hailes 855), and Douglas v. Mason, 1796 (M. 16,213); and these cases have been since acted upon. I therefore think there was a fund attachable by legal diligence although it had not been realised. But that is not conclusive, for the question arises, what kind of diligence was appropriate? That depends on whether the fund was heritable or moveable. If moveable, and so far as moveable, arrestment was the proper diligence. If heritable, it was not attachable by arrestment. That leads me to consider whether the right of the common debtor in his father's estate was heritable or moveable. That depends on the construction of the trust-deed. By it the truster conveyed his whole property, heritable and moveable. The purposes of the trust were the payment of his debts, the delivery of his stock-in-trade to his two sons, William and Thomas, the payment of certain money provisions to his two daughters, and the division of the residue among his six sons and daughters. The only provision in favour of the common debtor was this sixth part of residue. This deed was executed in 1851. In 1852 the truster married again, when he granted a bond of annuity of £50 to his wife. That, of course, created a debt. In 1859 he made it a real burden on his heritage, and at the same time he made over to his wife his household furniture, &c. According to the state of the deceased's affairs at his death, it appears that after payment of the truster's provisions, there was not sufficient moveable estate to pay his debts. It therefore follows that there was nothing but heritage out of which the residue could be paid. That being the state of matters, the fund is heritable, unless the trust-deed contains a direction or power to convert it into money before division. I find in the deed no such power. Whether it may turn out afterwards that it is necessary to convert before

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