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Scottish Court of Session Decisions >>
The Creditors of Ludovick Gordon, v Sir Hary Innes. [1740] Mor 715 (13 February 1740)
URL: http://www.bailii.org/scot/cases/ScotCS/1740/Mor0200715-051.html Cite as:
[1740] Mor 715
Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
The Creditors of Ludovick Gordon, v. Sir Hary Innes
Date: 13 February 1740 Case No. No 51.
An arrestment in the hands of a trustee, found effectual to carry the sum in a bill, in preference to an arrestment in his hands after the bill was paid.
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A Bill being indorsed in trust for behoof of the common debtor, an arrestment, laid in the hands of the trustee, found effectual to carry the sum in the bill; and therefore was preferred to a second arrestment laid in the trustee's hands, after he got payment of the bill, and thereby became debtor in a liquid sum.
Fol. Dic. v. 1. p. 56.*** The same case is thus reported by Lord Kilkerran.
Jan. 15. 1740. Where bills were drawn by Ludovick Gordon, on certain of his debtors, payable to one Falconer, which, by Falconer's oath, were instructed to be for the drawer's behoof; and Sir Hary Innes, as creditor to Ludovick the drawer, had arrested in Falconer's hand after the draught, but before Falconer's had recovered payment from the debtors; the question was, If these arrestment in Falconer hand did affect the sum in the bills? Ratio dubitandi, As Falcone had not properly the right to the money in him, but was only factor for recovering thereof, though he was liable to diligence for recovering the money, yet ho was not debtor to Ludovick Gordon, till he had recovered the money.
Notwithstanding, the Lords found “That the arrestments in the hands of Falconer did affect the sums in the bills,” for this reason, that, by the very draught of the bills by Ludovick Gordon upon his debtors, the right of the money was transferred to Falconer, who thereby became liable to account; and, for that reason, arrestment in Falconer's hand, was not only thought habile, but indeed to be the proper method of affecting the money; though it was at the same time observed, that had an arrestment been used in the hands of the debtors, it might, favore creditorum have been sustained, evidence being given that Falconer was but an interposed person.
N. B. The case of an arrestment laid in the hands of one who has a right in security, would be different; for that would not affect the superplus of the sums that might remain after payment of the debt. The reason is, that one having a right in security, is liable to no diligence, and, therefore, before he recovers the debt assigned, is possessed of nothing which the arrestment can affect.
