Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. XXI.

Effect of Decree, and of Consignation.

Nasmith
v.
Ruthvens

Date: 18 January 1628
Case No. No 119.

Decree and arrestment upon an heritable obligation, found to render it moveable.

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In a supension betwixt Nasmith and Ruthvens, wherein Henry Nasmith having obtained sentence against Alexander Crichton, as executor to umquhile the Laird of Ruthven before the Commissary of Dunkeld, for payment of a sum contained in the L. Ruthven's bond, and having arrested for satisfying of that decreet, in the hands of the relict of the said umquhile Laird of Ruthven, and in the hands of the now La. Ruthven, certain goods and gear; this arrestment and decreet foresaid, obtained by him, is transferred before this same Judge, viz. the Commissary of Dunkeld, in the person of James Nasmith, as brother and heir to Henry active; and the said relict, and now Laird of Ruthven are decerned to make the arrested goods furthcoming, being referred to their oaths, and they holden as confest; which decreet being suspended by them, the Lords found, that the Commissary of Dunkeld might be Judge to an action of transferring of his own decreet; and sicklike found, that he might be Judge to actions pursued at the instance of heirs of any defunct, albeit he might not be Judge to actions where the defenders were pursued as heirs to defuncts; for the pursuit of any pursuing as heir, hindered not the Commissary to proceed in any action, where the matter drawn in controversy, and where the nature of the action was proper to such consistorial jurisdictions; and here the obligation, which was the ground of the pursuit, made to Henry, was heritable, and therefore the decreet thereupon was transferred in his heir, who had the right thereto, seeing it would not belong to Henry's executors, except for bygone annualrents owing before his decease; and therefore the letters were found orderly proceeded, notwithstanding of the reasons of suspension, containing the two arguments above written. This last part was altered upon the 23d February 1628, where the sum was found to pertain to Henry's executors, aud not to his heirs, as is there observed, and consequently the decreet obtained at the instance of the heir of Henry was null. See Jurisdiction.

1628. February 23.—In a suspension of Nasmith against Ruthvens and Hugh Ross, umquhile Henry Nasmith heir to his father John Nasmith chirurgion, obtained decreet before the Commissaries of Dunkeld, against the executors of the Laird of Ruthven, for payment of a sum owing by the Laird of Ruthven to the said John, by an heritable bond; and upon this sentence, by virtue of the Commissary's precept, he arrests in the Lady Ruthven's hands some particular moveables pertaining to the defunct's executors; and thereafter Henry, user of the arrestment, dies, after which, James Nasmith, heir to his brother Henry, pursues before the Commissary, and upon a process by a sentence, obtains this decreet recovered by Henry, and the arrestment foresaid used by him, transferred in him as heir to Henry; and in the same sentence, the relict, in whose hands the arrestment was made, is decerned to make the arrested goods furthcoming, for satisfaction of the sums contained in that sentence transferred. The Lords found this decreet of transferring, and making arrested goods furthcoming, null, because they were both obtained upon one process, and contained in one sentence, which ought to have been done by two several pursuits and two decreets, and not to have been joined in one, and so could not be sustained, being so confounded; for if confusion of diets be a cause to annul proceedings of inferior judges, far more the confusion of sentences; and also the Lords found, that albeit the obligation was heritable, whereupon decreet was obtained by Henry as heir, yet being decerned at his instance, by his decease the sums therein contained, (sentence being recovered thereupon, and arrestment executed at his instance before his decease), were made and became to be moveable, and so did pertain to Henry's executors, and not to his heirs, and therefore the decreet obtained by his heir was found null. See Jurisdiction.—Process.

Act. Nicolson. Alt. Stuart. Clerk, Gibson. Fol. Dic. v. 1. p. 373. Durie, p. 328. & 350.