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Scottish Court of Session Decisions >>
Muirhead v Muirhead's Creditors, [1623] Mor 2789 (9 March 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor0702789-032.html Cite as:
[1623] Mor 2789
An arrestment used in the lifetime of the debtor, but not followed out, postponed to the posterior right of an executor-creditor.
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James Muirhead in Hamilton, debtor to umquhile William Muirhead burgess of Edinburgh, in a sum of money, suspends upon double poinding, as being charged by two creditors of the said William Muirhead, viz. on the one part by James Hope, and Mr William his assignee, who for the debt owing to the said James Hope, by the said umquhile William, had convened the nearest of kin of the said umquhile William, who by the law would be his executors, and upon whose renouncing to be execusors, he had obtained decreet against them cognitionis causa, decerning the bonds to be registrated, that execution might pass thereupon contra bona jacentia; and thereafter he had obtained himself decerned executor to the said William Muirhead, to the effect he might be paid off his debt in the first place, which was sustained by the Commissaries, and thereupon he intents action against this suspender. And sicklike the suspender was charged by William Dick burgess of Edinburgh, another creditor of the said umquhile William Muirhead, who was anterior in debt and term of payment to the said James Hope; likeas his bond was registrated against the said William Muirhead, in his own time, and before his decease; and the same sum controverted, was arrested at his instance in this suspender's hands, and sensyne the registrate obligation transferred in the person of Hope, executor decerned to the said umquhile William, whereby he alleged that he ought to be preferred, both in respect of the anteriority of his debt, and greater diligence, to Hope.—The Lords preferred Hope to Dick, in respect that Hope had recovered the first sentence against the persons, who of the law represented Muirhead, their common debtor, and that he had done diligence also, by obtaining himself decerned executor to him, which gave him jus prælationis for his debt, seeing the decreet and arrestment used against Muirhead in his own time by Dick ceased, nothing being done thereupon before his decease; and so the decreet of registration, obtained while he lived, not being transferred, while after Hope's decreet of registration, and that Hope was decerned executor, made Hope's diligence to be greater than his, and so to be preferred to Dick.
