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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson v Crichton. [1684] Mor 2857 (1 February 1684) URL: http://www.bailii.org/scot/cases/ScotCS/1684/Mor0702857-082.html Cite as: [1684] Mor 2857 |
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[1684] Mor 2857
Subject_1 COMPETITION.
Subject_2 SECT. XIV. Betwixt Rights flowing from different Authors. - Husband with Wife's Assignees. - Between Real and Personal Creditors, where the Debttor's Infeftment Reduced. - Singular Successor of a Reverser, with the Heir of a Nominal Fiar. - Disponee in Security with a Personal Creditor.
Date: Anderson
v.
Crichton
1 February 1684
Case No.No 82.
In a competition of arrestments of rents, founded on the debts of different proprietors of the same tenement, the right of one of whom was reduced; found, that the reduction took effect, only after decree, so that the arrester upon the debt of the defender in the reduction was preferred.
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In the action for making arrested goods furthcoming, pursued by John Anderson against William Anderson's tenants, and the said William for his interest; it was alleged for one Crichton and other arresters, That he ought to be preferred, because his arrestment was prior to John Anderson's. It was answered for John Anderson, That he ought to be preferred, because his arrestment was founded upon a debt due by George Anderson, son to the said William, and that the said William was denuded by disposition of the tenement, whereof the mails and duties were now in controversy; and, that Crichton's arrestment was founded upon a debt of William the father, who had no right to the tenement, or mails and duties thereof. It was answered for Crichton, That he being anterior creditor to the father, had raised reduction of the son's right to the tenement ex capite inhibitionis; and upon the act of Parliament 1621, as being granted by the father to the son, without any onerous cause; and that he held the production satisfied, and repeated his reason, ex capite inhibittonis, against the son's right; which being reduced, the arrestment for the son's debt fell in consequence; and that the mails and duties being un-uplifted, and in the tenant's hands, ought to be decerned and made furthcoming to the said Crichton. It was duplied, That although the son's disposition were reduced instantly, yet it could only take effect from the date of the decreet; so that the creditor of the son, who had arrested, ought to be preferred to the mails and duties that were due before the decreet of reduction. The Lords found, That the decreet of reduction did only take effect from the present date thereof, and preferred the arrester upon the son's debt, to the mails and duties due before the decreet of reduction, albeit they were extant in the tenant's hands un-uplifted.
Thereafter it was alleged, That the inhibition was null, in respect the execution thereof did bear, that the same was execute at the common debtor's shop, by delivering a copy to his wife there, whereas all executions ought to be personally, or at the dwelling-house. The Lords sustained the objection against the inhibition, unless the inhibiter would offer to prove, that the shop was a part of the dwelling house.
Thereafter it was alleged for Anderson the arrester, That he had obtained a decreet of adjudication of the tenement, whereof the mails and duties were craved; and therefore ought to be preferred, not only since the decreet of adjudication, but since the citation, which was the ground of the adjudication; in regard the act of Parliament declares a citation upon a summons of adjudication, to be equivalent to a comprising, and infeftment following thereupon; and true it is, that a comprising, and infeftment thereupon, would be preferable to Crichton's arrestment. The Lords preferred the adjudger, only since the decreet of adjudication; and found, That the act of Parliament, declaring citations of adjudications to be equivalent to a comprising and infeftment, was only in a competition with voluntary rights, but did not prejudge legal diligences, such as arrestment.
The electronic version of the text was provided by the Scottish Council of Law Reporting