Scottish Court of Session Decisions

Subject_1 HYPOTHEC.
Subject_2 SECT. I.

Extent to which Corns are subject of Hypothec.

Wardlaw
v.
Mitchell

Date: 9 November 1611
Case No. No 1.

The proprietor of the ground has no privilege for his farms, or preference to creditors prior to him in diligence, but for the present crop.

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Mr thomas wardlaw having obtained decreet against one called Mitchell, in the Gellettis, and thereupon having arrested the said Michell's corns in his barn, and stacks in his barn yard, and his horse and oxen being upon the said roum, affixed tickets of the arrestment upon the barn door, and one of the stacks. Thereafter the said Mr Thomas pursued Robert Gray of Craigly, and the said Mitchell for his interest, for breaking of this arrestment, and intromitting with his saids corns and goods. Robert Gray excepts, That he could not be pursued to tyne his escheat for breaking the said arrestment, which was not intimated to him; but that the most that could be craved of him was, to pursue him to make the said goods furthcoming. Which exception was repelled, in respect of the pursuer's reply, offering him to prove, that lawful intimation was made to the said Robert Gray of the arrestment, personally, upon the 21st March 1611. The defender duplied, That the said corns and goods were disponed to him upon the 20th March, for payment of bygone farms of the said lands, addebted to him by the said Thomas, for the which he was privileged before all other creditors. The pursuer answered, That the Master of the ground had no privilege for his farms, but of the present crop and year; next, that the assignation of the goods to Robert Gray was simulate, the tenant retaining the possession, long after the arrestment, by threshing and disponing upon a part of the corns, and labouring the horses and oxen in his plough and work; because the pursuer offered him to prove, that he made offer to the said Robert Gray, at the time of the intimation of the arrestment to him, to make him payment of all the farms which he would swear the tenant to be owing.—The Lords thought, that unless particular intimation had been made to Robert Gray of the arrestment, he could not be pursued for any farther, but to have made the arrested goods furthcoming. They found also, that the master of the ground was only privileged, and to be preferred to other creditors for the farm of the present crop, and not for the farm of any preceding years, for the which he could not poind without decreet and liquidation; neither could he hinder the execution of any other man's decreet who had prevenit him in diligence, and therefore repelled the defender's allegeance, and admitted the summons and reply to the pursuer's probation.

Fol. Dic. v. 1. p. 416. Haddington, MS. No 2302.