Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 What Subjects Arrestable.

Alexander Alison, Writer,
v.
the Directors of the African and India Company

Date: 18 March 1707
Case No. No 43.

A share of the African Company, which, while the company subsisted, was by act of Parliament not arrestable, found arrestable, the company being dissolved.

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Mr James Erskine, Lord Grange, as probationer, reported Alexander Alison, writer, against the Directors of the African and India Company. Hary Crawford in Dundee having paid in L. 200 Sterling as an adventurer in that company, Alexander Alison, as creditor to him, arrests it in the directors, &c. their hands; and then pursues a furthcoming, and likewise repeats a declarator, that the money stands affected by his diligence, and must belong to him.—Alleged, 1mo, That the directors can never be personally liable, but only ratione officii. 2do, By the act of Parliament establishing the company, (act 8th 1695,) the capital stock is declared free of all consiscations, seizures, arrests, &c. except only as to the profits; and the patentees are impowered to prescribe rules for conveying and transmitting the shares of the proprietors; and they having ordained it to be by real diligence, and transfers, it cannot be reached by arrestment.—Answered, So long as the company stood, the stock could not be affected; but now res devenit in alium casum, this present Parliament has declared the said company dissolved and at an end, upon paying in the stock out of the equivalent, which was a casus incogitatus at the time of erecting the company; and therefore, on a supposition that it would be perpetual, the stock was declared not attachable; but now when every proprietor is to draw out his share, what more habile and proper diligence than an arrestment, which is a nexus realis, and so answers the terms of the act of Parliament; and esto it were heritable, yet even such debts, by the 51st act, 166l, are affectable either by arrestment or adjudication, if infeftment has not followed thereupon; and it were a most tedious and expensive way to put them to an adjudication; and lately, in the case of Alexander Stevenson, merchant in Paris, a share in the Newmills cloth-manufactory was found moveable and arrestable; and by a declarator, the arrester was surrogate in place of the proprietor: And Dirleton, voce Arrestment of Conditional Debts, says, a creditor arresting a sum due upon a wadset before redemption, (when it is certainly not arrestable) if afterwards there be a redemption it accresces and is preferable to a second arrester after redemption, though this last seems more formal, being then made moveable; but jus fuit fundatum, and the superveniency accresces. So Stair, Instit. lib. 3. tit. 1. § 29. observes out of Hope, that an arrestment of the price of lands only verbally sold, from which there was locus penitentiœ(room to resile) was sustained, if a written agreement afterwards followed; and even so of arrestments currente termino.—The Lords found the company not personally liable, but that the arrestment affected the subject tanquam nexus realis; and though they could decern in the furthcoming, yet they decerned in the declarator, that the share due to Crawford fell to Alison, his creditor, who had arrested it, and that the directors ought to transfer it over to him; and when the commissioners of the equivalent got the African money paid in to them, Alison had right to claim Crawford's share and proportion thereof.

Fol. Dic. v. 1. p. 55. Fount. v. 2. p. 361.