Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 In whose hands Arrestments may be used.

Home
v.
Pringle

Date: 18 July 1706
Case No. No 64.

A man had given a factory to his own wife; arrestment in her hands found competent.

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George Rutherford, in Dunbar, being debtor to James Home of Gammalshiels, for the price of some victual. and having given a factory to Jean Pringle his wife, who, by virtue thereof, uplifted sundry debts owing to her husband, Home arrests both in her hands and her husband's. And the husband being since dead, he transfers the debt against his heirs passive, and pursues a furthcoming against the wife and children.—She alleged, A wife cannot be debtor to her husband, unless she were factrix or præposita, and so no arrestment can be validly laid on in her hands, seeing factors are not debtors, but only their constituents; and therefore Stair, tit. Assignation, § 30. page 373*, calls such arrestments ineffectual, 2do, Arrestment of goods in a party's own hands, was never sustained but once; 10th January 1624, Wilkie contra Lady Innerwick, No 61. p. 733.; but was found such a clog to commerce, that it never had a second 3tio, The debtor died medio tempore, and so the arrestment fell, unless it had been renewed. Likeas, goods or sums in her hands, stante matrimonio were the husband's, and

* Page 390 in edition 1759.

no arrestment laid on in the wife's hands, could stop his disposal of the same for the use of his family; and, if they be, since the dissolution of the marriage, she has a preferable right to them, in virtue of her contract of marriage, as executrix-creditrix.—Answered, If wives, made factors, were accountable for their husband's debts to his creditors, by their intromissions, it were a compendious way of frustrating all his debts; and for wives to inhance their means, to the prejudice of the legal embargo by arrestments. And Stair's words are misapplied; for, though he asserts arrestments laid on in factor's hands, to be useless, yet he says it is otherwise if it be also laid on in the constituent's hands, which is Gammalshiell's case; neither doth it alter the case that the principal debtor is dead medio tempore, for the calling his representatives supplies that; See 19th February 1667, Glen contra Home, (Stair, v. 1, p. 443. voce Escheat.) It is true, if my debtor's debtor, in whose hands I lay an arrestment, die, then the arrestment perishes with him, and must be renewed in his successor's hands, being personal; but that is not the present case. And as to her retention as executrix-creditrix, the Lords have preferred an arrester to an executor creditor, albeit the furthcoming was raised after the debtor's death.——The Lords repelled the defences, and sustained the arrestment, and ordained her to depone what was in her hands at the time, reserving her to be heard upon any title, by which she may crave preference to him, but found the debt behoved to be first constitute.

Fol. Dic. v. 1. p. 57. Fount. v. 2. p. 343.