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Wilson v Russell. [1670] Mor 568 (1 February 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Mor0200568-005.html Cite as:
[1670] Mor 568
Subject_1 ANNUALRENT, INFEFTMENT OF. Subject_2 Whether an Annualrent-Right be a foundation for Mails and Duties?
Wilson v. Russell
Date: 1 February 1670 Case No. No 5.
An action at the instance of an annualrenter who had a poinding of the ground, was sustained against the tenant personally, after his removal.
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Wilson being infeft in an annualrent in the lands of, and having obtained a decreet of poinding the ground; thereafter, Russell, being a creditor, did arrest the mails and duties in the tenant's hands, which were due to the master; and pursuing to make arrested goods forthcoming, the tenant being removed off the ground with his whole goods: It was alleged for Wilson, That he ought to be preferred, because his decreet of poinding of the ground was before the arrestment, and being a real diligence, did affect the whole duties payable to the master.—It was answered for Russell, That the tenant being removed with the whole goods, such decreets and letters being only to poind the ground, and the goods thereon, could not affect him nor his goods.—The Lords did prefer Wilson, the annualrenter, and found he having done prior diligence, whereby he might have poinded the tenant before he removed, albeit he did prejudge himself of all the execution against the tenant's goods, after they were off the ground, yet quoad the duties payable to the master, for which he might pursue him personali actione, he was not prejudged from the benefit thereof by the tenant's removal: But the decreet of poinding of the ground, and letters thereof, being a real execution prior to the arrestment, made him preferable to the arrester, as to the duties for which he was liable to the common debtor.
Fol. Dic. v. 1. p. 45. Gosford, MS. No 241. p. 98.
