Scottish Court of Session Decisions

Subject_1 LITIGIOUS.
Subject_2 DIVISION II.

Litigious by Arrestment.

Douglass and Others
v.
Belshes

Date: 10 December 1623
Case No. No 29a.

A subsequent assignation by a donatar of eschear, found not to prejudice prior arrestments by creditors of the common debtor.

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In an action betwixt Douglas and others against Belshes, wherein diverse creditors contending with the assignee, made by the donatar, to the escheat of him who was their common debtor, the creditors were preferred to the donatar's assignee, albeit the donatar's assignee was also a creditor; because the creditors proponed an allgeance of simulation, offering to prove that the gift of escheat and declarator were taken upon the rebels own moyen and expenses, &c. and so the assignation being of an escheat null for the cause of the simulation, cannot prejudge the creditors, who before the assignation had affected the goods controverted, with arrestments at their instances, at which time of the arrestments making, there was no assignation; and so the cause ought to be respected, as it was at the time of the arrestment, which being then disputed betwixt them and the donatar, the simulation would have been found relevant, and albeit sinsyne, the assignee being a creditor, had received assignation; and so replieth, that whatever fraud or collusion betwixt the rebel and the donatar hath been used, yet cannot be obtruded to him who is true creditor, as they are, and be not partakers of the fraud; and so that he ought to be preferred, having lawfully purchased the King's right; notwithstanding of which reply the exception was admitted; for the Lords found the subsequent assignation could not prejudge the preceding lawful diligence used by the creditors before the assignation, but, that the cause behoved to be considered and disputed now as it might have been betwixt the creditors and the donatar's self, at the time of the arrestment; at which time the allegeance would then have been admitted against the donatar, and so ought to be so discust against the assignee.

Act. Nicolson younger. Alt. Laurie. Clerk, Gibson. Durie, p. 90. *** Haddington reports this case:

John Belshes being addebted to William Douglas of Tofts, in the sum of L. 5000 merks, and pursued to make the sum forthcoming to Mr William Douglas, David Mitchel and others creditors to Tofts, according to their arrestments; William Barclay, and John Erskine of Bagaine, assignees to the gift of Tofts’ escheat, were admitted, and alleged that they should be pursued as assignees to Tofts his escheat, and to the particular declarator thereof, the horning and gift being long anterior to the arrestment. It was answered, that the gift was simulate, purchased by the rebel upon his charges, together with the declarator, which was offered to be proven, according to the order prescribed by the act of parliament. It was replied, that the assignees were true creditors to Tofts, and were not partakers of the simulation, and so had good right; but because Mr William Douglas and David Mitchel had used their arrestments, intented action, and prosecute it long before the assignation produced, their allegeance was found relevant against the assignees.

Haddington, MS. No 2948.